REAL ESTATE PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
JUSTICE CENTER, LLC, AS SELLER
AND
CLF DEA BIRMINGHAM LLC, AS BUYER
DATED: JULY 18, 2005
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made this 18
day of July, 2005 (the "EFFECTIVE DATE") by and between JUSTICE CENTER, LLC, a
Missouri limited liability company ("SELLER"), and CLF DEA BIRMINGHAM LLC, a
Delaware limited liability company ("BUYER").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth herein
the parties hereto do hereby agree as follows:
ARTICLE 1
SALE OF PROPERTY
Seller agrees to sell, transfer and assign and Buyer agrees to purchase,
accept and assume, subject to the terms and conditions stated herein, all of
Seller's right, title and interest in and to the following (herein collectively
called the "PROPERTY"):
1.1 REAL PROPERTY. That certain real property described in Exhibit A
attached hereto and incorporated herein by this reference, together with
all buildings, improvements and fixtures located thereon and all rights,
privileges and appurtenances pertaining thereto including all of Seller's
right, title and interest in and to all rights-of-way, open or proposed
streets, alleys, easements, strips or gores of land adjacent thereto
(herein collectively called the "REAL PROPERTY"); and
1.2 PERSONAL PROPERTY. All tangible personal property owned by Seller
(excluding any computer software which either (a) is licensed to Seller,
or (b) Seller deems proprietary), located on the Real Property and used in
the ownership, operation, management and maintenance of the Real Property
and all nonconfidential books, records and files (excluding any
appraisals, strategic plans for the Real Property, internal analyses,
marketing information, submissions relating to Seller's obtaining of
corporate authorization, attorney and accountant work product,
attorney-client privileged documents, or other information in the
possession or control of Seller or Seller's property manager which Seller
deems proprietary) relating to the Real Property (herein collectively
called the "PERSONAL PROPERTY"); and
1.3 OTHER PROPERTY RIGHTS. (a) Seller's interest as landlord in the lease
for the tenant of the Real Property on the Closing Date (as defined in
Section 6.1) as listed on Exhibit M (herein the "LEASE"); and (b) if and
to the extent assignable by Seller without any expense to Seller, (i) all
service, supply, maintenance, utility and commission agreements, all
equipment leases, and all contracts, subcontracts and agreements relating
to the construction of any unfinished tenant improvements and any
additional service, supply, maintenance or utility contracts entered into
in accordance with the terms of Subsection 9.2.1 hereof (all of the
foregoing being herein collectively called the "CONTRACTS"), and (ii) all
licenses, permits and other written authorizations necessary for the use,
operation or ownership of the Real Property or Personal Property (the
rights and interests of Seller described in clauses (a) through (b)
hereinabove being herein collectively called the "OTHER PROPERTY RIGHTS").
ARTICLE 2
PURCHASE PRICE
The total purchase price to be paid by Buyer for the purchase of the
Property is as more particularly set forth in a Supplemental Agreement dated as
of the date hereof (the "SUPPLEMENTAL AGREEMENT") between Seller and Buyer
("PURCHASE PRICE"). The Purchase Price shall be paid in the following manner:
2.1 DEPOSIT MONEY. Within three (3) business days after the Effective
Date, and as a condition precedent to the effectiveness of this Agreement,
Buyer shall deposit an amount set forth in the Supplemental Agreement
("INITIAL ▇▇▇▇▇▇▇ MONEY") with First American Title Insurance Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, as escrow
agent ("ESCROW AGENT"). If Buyer approves or is deemed to have approved
the Property as set forth in Section 4.2 of this Agreement, Buyer shall
deposit an additional amount set forth in the Supplemental Agreement
("ADDITIONAL ▇▇▇▇▇▇▇ MONEY") with Escrow Agent (the Additional ▇▇▇▇▇▇▇
Money and the Initial ▇▇▇▇▇▇▇ Money are collectively hereinafter referred
to as the "DEPOSIT"). The Deposit shall be nonrefundable except as herein
provided. The Deposit shall be deposited by Escrow Agent in an
interest-bearing account, and any interest earned on the Deposit shall be
considered a part of the Deposit. Except as expressly otherwise set forth
herein, the Deposit shall be applied against the Purchase Price on the
Closing Date.
2.2 CASH AT CLOSING. On the Closing Date, Buyer shall pay to Seller an
amount equal to the Purchase Price, subject to the prorations and
adjustments set forth in Article 5 or as otherwise provided under this
Agreement, plus any other amounts required to be paid by Buyer at Closing
(as defined in Section 6.1), in immediately available funds by wire
transfer as more particularly set forth in Section 6.2.
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ARTICLE 3
TITLE MATTERS
3.1 TITLE TO REAL PROPERTY. Seller has delivered to Buyer a
preliminary title report for the Real Property, together with copies
of all items shown as exceptions to title in the preliminary title
report (collectively, the "TITLE REPORT") prepared by First American
Title Insurance Company ("TITLE Company"). Buyer has ordered and is
awaiting receipt of an ALTA As-Built survey of the Real Property
("SURVEY"). Fifteen (15) business days after Buyer's receipt of the
Title Report and Survey ("APPROVAL DATE"), Buyer shall provide
written notice to Seller of any matters shown by the Title Report or
Survey which are not satisfactory to Buyer ("TITLE NOTICE"). In the
event Buyer disapproves one or more items in the Title Notice
("DISAPPROVED EXCEPTIONS"), then, within five (5) business days
after receipt of the Title Notice, Seller may notify Buyer in
writing of Seller's election to cause one or more of the Disapproved
Exceptions to be eliminated prior to the Closing Date (as defined
below), or, alternatively, Seller may notify Buyer in writing that
Seller does not intend to take action to eliminate one or more of
the Disapproved Exceptions (alternatively, "SELLER'S NOTICE").
Seller's failure to timely deliver Seller's Notice shall be deemed
to constitute Seller's election not to take action to eliminate any
of such Disapproved Exceptions. Except as provided below, Seller
shall have no obligation to cause any of the Disapproved Exceptions
to be eliminated.
Within three (3) business days after the earlier to occur of (i) Buyer's
receipt of Seller's Notice specifying which Disapproved Exceptions Seller does
not intend to eliminate, or (ii) the date on which Seller last could have timely
delivered Seller's Notice, Buyer shall have the right to accept title to the
Real Property subject to such Disapproved Exceptions, provided Buyer notifies
Seller in writing of such acceptance within such five (5) business day period.
Buyer's failure to so notify Seller within such five (5) business day period
shall be deemed to constitute Buyer' election to approve the Disapproved
Exceptions and to purchase the Property subject to the Disapproved Exceptions.
The term "Permitted Exceptions" shall hereinafter refer to (a) title matters
approved or deemed approved by Buyer pursuant to this paragraph, (b)
nondelinquent real property taxes, (c) any exceptions caused by Buyer, its
agents, representatives or employees, (d) the printed terms and conditions in a
ALTA (or equivalent form customarily used in the jurisdiction where the Property
is located) Owner's Extended Coverage Title Insurance Policy, (e) applicable
zoning and building ordinances and land use regulations and (f) the Lease.
Notwithstanding anything to the contrary, except as may be expressly provided
with respect to Buyer's assumption of the existing bond financing, if any, in
all other instances, Seller shall remove prior to the Closing Date, at Seller's
sole cost and expense, the lien of any deed of trust or mortgage encumbering
Seller's interest in the Real Property and the lien of any delinquent real
property taxes encumbering the Real Property. Prior to the Closing, Seller shall
provide to Title Company an affidavit stating the name of the single tenant of
the Real Property. Notwithstanding any provision to the contrary contained in
this Agreement or any of the documents to be executed in connection herewith or
pursuant hereto, any or all of the Permitted Exceptions may be omitted by Seller
in the Deeds (as defined in Subsection 6.3(a)) without giving rise to any
liability of Seller, irrespective of any covenant or warranty of Seller
contained in the Deeds (which provisions shall survive the Closing and not be
merged therein).
3.1.1 DISCHARGE OF TITLE OBJECTIONS. If on the Closing Date there are any
Title Objections which Seller has elected to pay and discharge, Seller may
use any portion of the Purchase Price to satisfy the same, provided Seller
shall either (a) deliver to Buyer at the Closing instruments in recordable
form and sufficient to cause such Title Objections to be released of
record, together with the cost of recording or filing such instruments, or
(b) cause the Title Company to insure over the same, without any
additional cost to Buyer, whether such insurance is made available in
consideration of payment, bonding, indemnity of Seller or otherwise.
3.2 TITLE INSURANCE. At Closing, the Title Company shall issue to Buyer an
ALTA Owner's Form of title insurance policy in the form of the Title
Report ("OWNER'S TITLE POLICY"), in the amount of the Purchase Price,
insuring that fee simple title to the Real Property is vested in Buyer
subject only to the Permitted Exceptions. Buyer shall be entitled to
request that the Title Company provide such endorsements (or amendments)
to the Owner's Title Policy as Buyer may reasonably require, provided that
(a) such endorsements (or amendments) shall be at no cost to, and shall
impose no additional liability on, Seller, (b) Buyer's obligations under
this Agreement shall not be conditioned upon Buyer's ability to obtain
such endorsements and, if Buyer is unable to obtain such endorsements,
Buyer shall nevertheless be obligated to proceed to close the transaction
contemplated by this Agreement ("TRANSACTION") without reduction of or set
off against the Purchase Price, and (c) the Closing shall not be delayed
as a result of Buyer's request.
ARTICLE 4
BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
4.1 BUYER'S INSPECTIONS AND DUE DILIGENCE. Buyer acknowledges that
commencing prior to the execution of this Agreement and continuing for a
period which will expire on July 8, 2005 ("DUE DILIGENCE PERIOD"), Buyer
has conducted, and shall continue to conduct, its examinations,
inspections, testing, studies and/or investigations (herein collectively
called the "DUE DILIGENCE") of the Property. By way of example, and not
limitation, the Due Diligence shall include Buyer's evaluation of
information regarding the Property and such documents in Seller's
possession applicable to the Property, including, but not limited to, the
Title Report, the Survey, the Lease, the Contracts, the Property Documents
(as defined in Subsection 6.3(l)), the environmental reports listed on
Exhibit B attached hereto and incorporated herein by this reference, and
such other nonproprietary, nonprivileged reports, documents, books and
records which pertain to the Property as Buyer has deemed or shall deem
necessary or appropriate (all of the foregoing documents being herein
collectively called the "DOCUMENTS"). Buyer shall not have the right to
perform any invasive testing of the Property without Seller's prior
written consent, which Seller may give or withhold, in Seller's sole
discretion. In connection with such due diligence, subject to the
limitations in Section 1.2, Seller shall deliver any documents reasonably
requested by Buyer and in the possession of Seller or Seller's property
manager, within three (3) business days following such request.
4.2 TERMINATION OF AGREEMENT DURING DUE DILIGENCE PERIOD. If Buyer is not
satisfied, in Buyer's sole discretion, with the results of its Due
Diligence during the Due Diligence Period, Buyer may terminate this
Agreement by written notice to Seller given in accordance with the
provisions of Section 14.9 hereof at any time prior to 5:00 p.m. Central
Time on the last day of the Due Diligence Period, and, in the event of
such termination, neither Seller nor Buyer shall have any liability
hereunder except for those obligations which expressly
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survive the termination of this Agreement and Buyer shall be entitled to
the return of the Deposit. In the event Buyer fails to terminate this
Agreement prior to 5:00 p.m. Central Time on the last day of the Due
Diligence Period, Buyer shall be deemed to have waived its rights to
terminate this Agreement in accordance with this Article 4 and shall be
obligated to deliver the Additional ▇▇▇▇▇▇▇ Money to the Escrow Agent.
Subject to Seller's prior approval, which shall not be unreasonably
withheld or delayed, Buyer shall have the right after the expiration of
the Due Diligence Period to conduct further physical examinations,
inspections, testing, studies and/or investigations regarding the
Property, but such additional examinations, inspections, testing, studies
and/or investigations shall not extend the Due Diligence Period.
4.3 BUYER'S CERTIFICATE. Buyer shall deliver to Seller at the Closing, a
certificate in the form of Exhibit C attached hereto and incorporated
herein by this reference.
ARTICLE 5
ADJUSTMENTS AND PROBATIONS
The following adjustments and proration shall be made at Closing or at
such time as agreed between the parties:
5.1 LEASE RENTALS AND EXPENSES. Subject to the provisions of this Section,
Rent (as defined below) shall be prorated as of the Closing. Seller shall
be entitled to all Rents attributable to any period prior to and including
the day on which the Closing occurs, and Buyer shall be entitled to all
Rent attributable to any period after the day on which the Closing occurs.
"RENT" as used herein shall mean the fixed monthly rents and escalation
rents and any tax and operating cost reimbursements due from the tenant
under the Lease. Tax reimbursements include, but are not limited to, real
property tax reimbursements. Pursuant to the terms of the Lease, rent is
paid monthly, in arrears. At Closing, Seller shall be entitled to, and
receive a credit for all accrued but unpaid Rent and which right to
collect same shall be assigned to Buyer. In addition, in the event Seller
shall have paid any tax reimbursements which remain due and unpaid by the
tenant under the Lease, Seller shall receive at Closing a credit for any
such tax reimbursement and which right to collect same shall be assigned
to Buyer at Closing. Seller's and Buyer's rights and obligations under
this section shall survive the Closing.
5.2 TAXES. Real estate taxes and assessments on the Property shall not be
prorated as such costs are the obligation of the tenant under the Lease
and will be reimbursed pursuant to the terms thereof. Buyer shall accept
the property subject to all non-delinquent taxes and assessments and shall
subsequently be responsible for the payment of same and collection of the
reimbursement from the tenant under the Lease. As provided in Section 5.1
herein, in the event Seller shall have paid any real estate taxes and
assessments on the Property and submitted same for reimbursement from
tenant pursuant to the terms of the Lease, Seller shall receive a credit
for such reimbursement at Closing and which right to collect such
reimbursement shall be assigned to Buyer at Closing. Seller shall be
entitled to retain the full amount of any tax refund received by Buyer or
Seller after the Closing and attributable to a period prior to the Closing
to the extent such refund is not owed to the tenant pursuant to the Lease.
Buyer shall promptly deliver the full amount of such tax refund to Seller
if it is received by Buyer.
5.3 UTILITIES. Seller shall attempt to cause the utility and water meters
to be read by the applicable utility provider on the day prior to the
Closing or as close to the Closing as is possible if a reading on the day
prior to the Closing cannot be obtained, and shall be responsible for the
cost of all utilities and water used prior to that time, except to the
extent such utility charges are billed to and paid by tenants directly. To
the extent utility readings cannot be taken on the day prior to the
Closing, Buyer and Seller shall reasonably estimate what the readings are
likely to have been as of the Closing based on the actual reading, when
the actual reading occurred and such information as may be available to
Buyer and Seller relating to daily usage rates. Any security or service
deposits delivered by Seller to utility providers, and any interest
required to be paid thereon, shall be and remain the sole property of
Seller, and any refund of such security deposits shall be made directly to
Seller except to the extent such deposits are assigned to Buyer by Seller
in which case, Buyer shall be debited and Seller credited the amount of
such assigned deposits. On the Closing, except to the extent such utility
accounts are in the name of the tenant, Buyer shall cause all accounts
with utility companies to be changed to its name, and all utility bills
for periods from and after the Closing shall be paid by Buyer.
5.4 CLOSING COSTS. Buyer shall pay (a) the cost of all endorsements and
all premiums and charges of the Title Company for the Owner's Title Policy
(b) the cost of updating the Survey, (c) all recording charges in
connection with the instruments by which Seller conveys the Property, (d)
one-half of all escrow charges, (e) all costs of Buyer's Due Diligence,
including fees due its consultants and attorneys, (f) all lenders' fees
related to any financing to be obtained by Buyer, if any, (g) all personal
property taxes and (h) all mortgage registration taxes and any other
recording fees, taxes or other expenses applicable to any financing to be
obtained by Buyer and the cost of all endorsements and all premiums and
charges of the Title Company for any Loan Title Policy relating to any
financing to be obtained by Buyer. Seller shall pay (a) one-half of all
escrow charges, (b) all fees due its attorneys, and (c) all documentary
transfer taxes applicable to the transfer of a parcel of the Real
Property, if any. The obligations of the parties under this Section 5.4
shall survive the Closing (and not be merged therein) or any earlier
termination of this Agreement.
5.5 Intentionally Deleted.
5.6 APPORTIONMENT CREDIT. In the event the apportionments to be made at
the Closing result in a credit balance (i) to Buyer, such sum shall be
paid at the Closing by giving Buyer a credit against the Purchase Price or
(ii) to Seller, Buyer shall pay the amount of the credit to Seller through
escrow on the Closing in addition to the Purchase Price.
5.7 DELAYED ADJUSTMENT; DELIVERY OF OPERATING AND OTHER FINANCIAL
STATEMENTS. If at any time following the Closing Date, the amount of an
item listed in any section of this Article 5 shall prove to be incorrect
(whether as a result in an error in calculation or a lack of complete and
accurate information as of the Closing), the party in whose favor the
error was made shall promptly pay to the other party the
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sum necessary to correct such error upon receipt of proof of such error,
provided that such proof is delivered to the party from whom payment is
requested on or before eighteen (18) months after Closing (such period
being referred to herein as the "POST CLOSING ADJUSTMENT PERIOD"). In
order to enable Seller to determine whether any such delayed adjustment is
necessary, Buyer shall provide to Seller current operating and financial
statements for the Property no later than the date one (1) month prior to
the expiration of the Post-Closing Adjustment Period and at other times
upon Seller's written request. The provisions of this Section 5.7 shall
survive the Closing and not be merged therein.
5.8 PURCHASE PRICE ADJUSTMENT. If the actual operating expenses for the
Property for the first year of operation, as verified by the current
property manager ("ACTUAL OPERATING EXPENSES"), are greater than the
operating expenses set forth in the Argus run that was provided to Buyer
by Seller as set forth in Exhibit R attached hereto and incorporated
herein by this reference (the "ARGUS RUN OPERATING EXPENSES") by more than
3%, the Purchase Price will be reduced by an amount equal to the amount by
which Actual Operating Expenses exceed the Argus Run Operating Expenses by
more than 3%, divided by a 7% capitalization rate. If the Actual Operating
Expenses are less than the Argus Run Operating Expenses by more than 3%,
the Purchase Price will be increased by an amount equal to the amount by
which Actual Operating Expenses are less than the Argus Run Operating
Expenses by more than 3%, divided by a 7% capitalization rate. The first
year of operation shall be defined as the one year period beginning the
earlier of (i) The receipt of an Acceptance/Rent Start Letter or
Supplemental Lease Agreement executed by tenant; or (ii) the issuance of a
permanent certificate of occupancy for the Property. The reconciliation of
Actual Operating Expenses and Argus Run Operating Expenses for the
purchase price adjustment as set forth in this Section 5.8 shall include
only those expenses specifically itemized in the Argus Run Operating
Expenses and such additional expenses that were incurred pursuant to the
Lease. Any expenses not identified by line item in the Argus Run Operating
Expenses will not be included in a reconciliation to calculate the
purchase price adjustment unless such additional expenses were incurred
pursuant to the lease. As set forth in Section 9.1.4 of this Agreement, CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ and BC Development Company will act as property managers for
the Property (the "Property Manager"). During the first year of operation
of the Property, Buyer will act in good faith and in a commercially
reasonable manner and will not cause Annual Operating Expenses to be
increased in comparison to the Argus Run Operating Expenses by directing
the Property Manager to conduct daily business in a manner contrary to of
the expenses itemized in the Argus Run Operating Expenses and those
expenses required in the Lease. During the first year of operation of the
Property, Seller will act in good faith an in a commercially reasonable
manner and will not cause Annual Operating Expenses to be decreased in
comparison to the Argus Run Operating Expenses by directing Property
Manager to conduct daily business in a manner contrary to those
requirements under the Lease and those expenses necessary to operate and
maintain the building in a first-class office building. If Buyer causes
Annual Operating Expenses to increase as a result of actions that are not
consistent with those expenses itemized in the Argus Run Operating
Expenses and those expenses that should be incurred pursuant to the Lease,
such resulting amount of increase in Annual Operating Expenses will not be
included in a reconciliation for the purchase price adjustment. If Seller
causes Annual Operating Expenses to decrease as a result of actions that
are not consistent with those expenses itemized in the Argus Run Operating
Expenses, or necessary to operate and maintain the building in a
first-class office manner, or necessary additional expenses that should be
incurred pursuant to the Lease, such resulting amount of decrease in
Annual Operating Expenses will not be included in a reconciliation for the
purchase price adjustment.
ARTICLE 6
CLOSING
Buyer and Seller hereby agree that the Transaction shall be consummated as
follows:
6.1 CLOSING DATE. The Transaction shall close July 22, 2005 (the "CLOSING
DATE"). References in this Agreement to the "CLOSING" or the "CLOSE OF
ESCROW" shall mean the date the deed conveying title to the Property to
Buyer is recorded. The Closing shall be conducted through the escrow with
Escrow Agent. Time is of the essence with respect to the Closing Date.
6.2 TITLE TRANSFER AND PAYMENT OF PURCHASE PRICE. Provided all conditions
precedent to Seller's obligations hereunder have been satisfied, Seller
agrees to convey title to the Real Property to Buyer upon confirmation of
receipt of the Purchase Price by the Escrow Agent as set forth below.
Provided all conditions precedent to Buyer's obligations hereunder have
been satisfied, Buyer agrees to pay the amount specified in Article 2 by
timely delivering the same to the Escrow Agent no later than 1:00 p.m.
Central Time on the Closing Date and unconditionally directing the Escrow
Agent to deposit the same in Seller's designated account by 2:00 p.m.
Central Time on the Closing Date. For each full or partial day after the
Closing Date that Seller has not received in its account the payment
specified in Article 2, Buyer shall pay to Seller one (1) day's interest
on the unpaid funds at the rate per annum equal to the "prime rate" as
announced from time to time by The Wall Street Journal. Notwithstanding
the foregoing, provided Seller is not in default, Seller shall have the
right to terminate this Agreement at any time if such payment is not
received in Seller's designated account within one (1) business day after
the Closing Date.
6.3 SELLER'S CLOSING DELIVERIES. At the Closing, Seller shall deliver or
cause to be delivered the following:
(a) Deeds. A deed in the form of Exhibit D attached hereto and
incorporated herein by this reference for each separate legal parcel
of Real Property (collectively, the "DEEDS").
(b) ▇▇▇▇ of Sale. A ▇▇▇▇ of sale in the form of Exhibit E attached
hereto and incorporated herein by this reference.
(c) Assignment of Lease. An assignment and assumption of the Lease, in
the form of Exhibit F attached hereto and incorporated herein by
this reference ("ASSIGNMENT OF LEASE").
(d) Assignment of Contracts. An assignment and assumption of the
Contracts and the Other Property Rights (to the extent the same are
not transferred by the ▇▇▇▇▇, ▇▇▇▇ of Sale or Assignment of Lease)
in the form of Exhibit G attached hereto and incorporated herein by
this reference ("ASSIGNMENT OF CONTRACTS").
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(e) Notice to Tenant. A single form letter in the form of Exhibit H
attached hereto and incorporated herein by this reference which
shall be sent by Buyer after Closing to the tenant under the Lease
("NOTICE TO TENANT").
(f) Novation Agreement Letter. A fully executed Novation Agreement
Letter in the form of Exhibit I attached hereto and incorporated
herein by this reference ("NOVATION AGREEMENT LETTER"), executed by
the Contracting Officer of the United States Government. If Seller
is unable to obtain a fully executed Novation Agreement Letter,
Seller shall not be in default under this Agreement. If Seller is
unable to obtain a fully executed Novation Agreement Letter, either
party shall have the right to elect, as its sole and exclusive
remedy, to terminate this Agreement by written notice to the other
party, promptly after which the Deposit shall be returned to Buyer.
(g) Non-Foreign Status Affidavit. A non-foreign status affidavit in the
form of Exhibit J attached hereto and incorporated herein by this
reference, as required by Section 1445 of the Internal Revenue Code.
(h) Seller's Certificate. The certificate of Seller certifying that the
matters set forth in Section 8.2 are still true and correct in all
material respects.
(i) Other Documents. Such other documents as may be reasonably required
by the Title Company or as may be agreed upon by Seller and Buyer to
consummate the Transaction; provided, however, Seller shall not be
obligated to incur any cost or subject itself to any liability not
contemplated by this Agreement in order to provide such documents.
(j) Termination of Existing Management Agreement. Documentation of
termination of any existing management agreement for the Real
Property.
(k) Statement of Lease. Buyer shall have received not later than five
days prior to the Closing Date, an executed statement of lease (the
"STATEMENT") from tenant in the form which tenant is required to
provide pursuant to the terms of the Lease. The Statement shall be
dated no earlier than thirty (30) days prior to the initially
scheduled Closing Date and shall be substantially in the form of
Exhibit K attached hereto and incorporated herein by this reference.
The Statement shall be executed by the Contracting Officer (as
defined in the Lease) in the form of a letter stating that: (i) the
Lease is in full force and effect, (ii) the date to which the rent
and other charges have been paid in advance, if any, and (iii)
whether any notice of default has been issued. The Statement shall
be subject to the following conditions: (i) that the Statement is
based solely on a reasonably diligent review of the Contracting
Officer's lease file as of the date of issuance, (ii) that the
Government (as defined in the Lease) shall not be held liable
because of any defect in or condition of the premises or building,
(iii) that the Contracting Officer does not warrant or represent
that the premises or building comply with applicable Federal, State
and local law and (iv) that the Lessor (as defined in the Lease) and
any prospective purchaser, including Buyer, are deemed to have
constructive notice of such facts as would be ascertainable by
reasonable pre-purchase and pre-commitment inspection of the
premises and building and by inquiry to appropriate Federal, State
and local government officials.
(l) Property Documents. To the extent in the possession of Seller or the
current property managers of Seller, all books and records subject
to the limitations set forth in Section 1.2, relating exclusively to
the operation and management of the Property (collectively, the
"PROPERTY DOCUMENTS").
(m) Keys and Original Documents. Keys to all locks on the Real Property
in Seller's or Seller's building manager's possession and originals
or, if originals are not available, copies, of the Leases and
Contracts.
(n) Collateral Assignment of Construction Contract. A fully executed
Collateral Assignment in the form of Exhibit O attached hereto and
incorporated herein by this reference by Excel Constructors, Inc.
(o) Development and Management Agreement and Completion Guaranty. A
Development Management Agreement in the form of Exhibit P attached
hereto and incorporated herein by this reference executed by the
Development Manager. A fully executed Completion Guaranty in the
form of Exhibit Q attached hereto and incorporated herein by this
reference.
The items to be delivered by Seller in accordance with the terms of
Subsections (a) through (j) of this Section 6.3 shall be delivered to the Escrow
Agent no later than 5:00 p.m. Central Time on the last business day prior to the
Closing Date. The estoppel certificate described in Section (k) of this Section
6.3 shall be delivered in accordance with Section (k). The items to be delivered
by Seller in accordance with the terms of Subsections (l) and (m) of this
Section 6.3 shall be delivered outside of escrow and shall be deemed delivered
if the same are located at the Property on the Closing Date or if they are made
available to Buyer for pick up at Seller's main offices or at the office of
Seller's current property manager.
6.4 BUYER'S CLOSING DELIVERIES. At the Closing, Buyer shall deliver or
cause to be delivered to Seller the following:
(a) Purchase Price. The Purchase Price, as adjusted for apportionments
and other adjustments required under this Agreement, plus any other
amounts required to be paid by Buyer at Closing.
(b) Assignment of Lease. The Assignment of Lease executed and
acknowledged by Buyer.
(c) Assignment of Contracts. The Assignment of Contracts executed and
acknowledged by Buyer.
6
(d) Buyer's Certificates. The certificate of Buyer required under
Article 4 hereof and a certificate of Buyer certifying as to the
matters set forth in Section 8.1.
(e) Property Management Agreement. The Property Management Agreement (as
hereinafter defined in Article 9) with CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and BC
Development Company executed and acknowledged by Buyer.
(f) Other Documents. Such other documents as may be reasonably required
by the Title Company or may be agreed upon by Seller and Buyer to
consummate the Transaction.
The Purchase Price shall be paid in accordance with the terms of Section
6.2 hereof and the items to be delivered by Buyer in accordance with the terms
of Subsections (b) through (f) of this Section 6.4 shall be delivered to the
Escrow Agent no later than 5:00 p.m. Central Time on the last business day prior
to the Closing Date.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 SELLER'S OBLIGATIONS. Seller's obligation to close the Transaction is
conditioned on all of the following, any or all of which may be waived by
Seller by an express written waiver, at its sole option:
(a) Representations True. All representations and warranties made by
Buyer in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, as if made on and as of such
date except to the extent they expressly relate to an earlier date;
(b) Buyer's Financial Condition. No petition has been filed by or
against Buyer under the Federal Bankruptcy Code or any similar state
or federal Law, whether now or hereafter existing; and
(c) Buyer's Deliveries Complete. Buyer shall have delivered the funds
required hereunder and all of the documents to be executed by Buyer
set forth in Section 6.4 and shall have performed all other material
covenants, undertakings and obligations, and complied with all
conditions required by this Agreement, to be performed or complied
with by Buyer at or prior to the Closing.
(d) Buyer Closing on All Portfolio Contracts. Buyer or affiliates of
Buyer shall be obligated to simultaneously Close the acquisition of
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (collectively along with the Property referred to as the
"Portfolio Properties") under separate Real Estate Purchase and Sale
Agreements with entities affiliated with Seller (collectively along
with this Agreement the "Portfolio Agreements"). The parties agree
that the Buyer shall have no right to elect to purchase less than
all of the Portfolio Properties pursuant to the Portfolio
Agreements. The parties further agree that any determination by
Buyer or any other purchaser under any of the Portfolio Agreements
to not acquire any of the Portfolio Properties shall be deemed to be
a determination by Buyer not to acquire the Property.
7.2 BUYER'S OBLIGATIONS. Buyer's obligation to close the Transaction is
conditioned on all of the following, any or all of which may be waived by
Buyer by an express written waiver, at its sole option:
(a) Representations True. Subject to the provisions of Section 8.3, all
representations and warranties made by Seller in this Agreement, as
the same may be amended as provided in Section 8.3, shall be true
and correct in all material respects on and as of the Closing Date,
as if made on and as of such date except to the extent that they
expressly relate to an earlier date; and
(b) Title Conditions Satisfied. At the time of the Closing, title to the
Property shall be as provided in Article 3 of this Agreement; and
(c) Seller's Deliveries Complete. Seller shall have delivered all of the
documents and other items required pursuant to Section 6.3 and shall
have performed all other material covenants, undertakings and
obligations, and complied with all conditions required by this
Agreement, to be performed or complied with by Seller at or prior to
the Closing.
(d) No Lease Default. No default has occurred or is continuing under the
Lease.
7.3 WAIVER OF FAILURE OF CONDITIONS PRECEDENT. At any time or times on or
before the date specified for the satisfaction of any condition, Seller or
Buyer may elect in writing to waive the benefit of any such condition set
forth in Section 7.1 or Section 7.2, respectively. By closing the
Transaction, Buyer shall be conclusively deemed to have waived the benefit
of any remaining unfulfilled conditions set forth in Section 7.2. In the
event any of the conditions set forth in Sections 7.1 or 7.2 are neither
waived nor fulfilled, Seller or Buyer (as appropriate) may exercise such
rights and remedies permitted by the terms of Article 10 hereof.
7.4 APPROVALS NOT A CONDITION TO BUYER'S PERFORMANCE. Subject to Buyer's
right to terminate this Agreement prior to the expiration of the Due
Diligence Period in accordance with the terms of Article 4 hereof, Buyer
acknowledges and agrees that its obligation to perform under this
Agreement is not contingent upon Buyer's ability to obtain any (a)
governmental or quasi governmental approval of
7
changes or modifications in use or zoning, or (b) modification of any
existing land use restriction, or (c) consents to assignments of any
service contracts, management agreements or other agreements which Buyer
requests, or (d) endorsements to the Owner's Title Policy.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 BUYER'S REPRESENTATIONS. Buyer represents and warrants to, and
covenants with, Seller as follows:
8.1.1 Buyer's Authorization. Buyer (a) is duly organized (or formed),
validly existing and in good standing under the laws of Delaware (b) is
authorized to consummate the Transaction and fulfill all of its
obligations hereunder and under all documents contemplated hereunder to be
executed by Buyer, and (c) has all necessary power to execute and deliver
this Agreement and all documents contemplated hereunder to be executed by
Buyer, and to perform all of its obligations hereunder and thereunder.
This Agreement and all documents contemplated hereunder to be executed by
Buyer, have been duly authorized by all requisite partnership or corporate
action on the part of Buyer and are the valid and legally binding
obligations of Buyer, enforceable in accordance with their respective
terms. Neither the execution and delivery of this Agreement and all
documents contemplated hereunder to be executed by Buyer, nor the
performance of the obligations of Buyer hereunder or thereunder will
result in the violation of any Law or any provision of the agreement of
partnership of Buyer will conflict with any order or decree of any court
or governmental instrumentality of any nature by which Buyer is bound.
8.1.2 Buyer's Financial Condition. No petition has been filed by or
against Buyer under the Federal Bankruptcy Code or any similar state or
federal Law.
8.2 SELLER'S REPRESENTATIONS. Seller represents and warrants to Buyer as
follows:
8.2.1 Seller's Authorization. Seller (a) is duly organized (or formed),
validly existing and in good standing under the laws of its State of
organization and the State in which the Property is located, (b) is
authorized to consummate the Transaction and fulfill all of its
obligations hereunder and under all documents contemplated hereunder to be
executed by Seller, and (c) has all necessary power to execute and deliver
this Agreement and all documents contemplated hereunder to be executed by
Seller and to perform its obligations hereunder and thereunder. This
Agreement and all documents contemplated hereunder to be executed by
Seller have been duly authorized by all requisite action on the part of
Seller and are the valid and legally binding obligation of Seller
enforceable in accordance with their respective terms. Neither the
execution and delivery of this Agreement and all documents contemplated
hereunder to be executed by Seller nor the performance of the obligations
of Seller hereunder or thereunder will result in the violation of any Law
or will conflict with any order or decree of any court or governmental
instrumentality of any nature by which Seller is bound.
8.2.2 Other Seller's Representations:
(a) To Seller's knowledge, except as listed in Exhibit L attached hereto
and incorporated herein by this reference, or as disclosed in the
due diligence information provided by Seller to Buyer during the Due
Diligence Period, Seller has not been served with a complaint in any
legal action which would adversely affect the Property after the
Closing.
(b) Exhibit L attached hereto is a true, correct and complete listing of
all Contracts and as of the date of this Agreement, Seller has not
entered into any service, supply, maintenance or utility contracts
affecting the Property which cannot be terminated on thirty (30)
days' advance written notice other than Exhibit L.
(c) To Seller's knowledge, except as listed on Exhibit L attached
hereto, or as disclosed in the due diligence information provided by
Seller to Buyer during the Due Diligence Period, as of the Effective
Date, Seller has received no written notice from a federal, state or
local governmental agency that the Property is as of the date of
this Agreement in violation of a law, code or ordinance.
(d) As of the date of this Agreement, the only tenant of the Property is
the tenant listed in Exhibit M attached hereto and incorporated
herein by this reference.
(e) Subject to the matters disclosed in the Statement, the Lease is in
full force and effect and, to Seller's knowledge, no uncured breach
or default exists on the part of the lessee thereunder, nor has any
written or oral notice been received by Seller alleging any
potential or alleged defaults by landlord thereunder, no rent called
for under the Lease has been paid in advance of its due date and the
lessee thereunder is not asserting, to Seller's knowledge, any claim
of off-set or other defense in respect of its or the landlord's
obligations under the Lease.
(f) There are no leasing commissions due in connection with the
execution of the Lease or due in connection with any renewal or
extension of the Lease.
8.2.3 No Other Agreements. Seller has not entered into any currently
effective agreement to sell or dispose of all or any portion of its
interest in and to the Property (except for this Agreement and any options
to purchase the Property or a portion thereof that may be contained in any
of the Leases).
8
8.3 GENERAL PROVISIONS.
8.3.1 Intentionally Deleted.
8.3.2 Definition of "Seller's Knowledge". All references in this Agreement
to "SELLER'S KNOWLEDGE" or words of similar import shall refer only to the
actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇ ("DESIGNATED EMPLOYEE") and shall not be
construed to refer to the knowledge of any other officer, agent or
employee of Seller or any affiliate thereof or to impose or have imposed
upon the Designated Employee any duty to investigate the matters to which
such knowledge, or the absence thereof, pertains, including, but not
limited to, the contents of the files, documents and materials made
available to or disclosed to Buyer or the contents of files maintained by
the Designated Employee. There shall be no personal liability on the part
of the Designated Employee arising out of any representations or
warranties made herein.
8.3.3 Seller's Representations Deemed Modified. To the extent that Buyer
knows or is deemed to know prior to the expiration of the Due Diligence
Period that Seller's representations and warranties are inaccurate, untrue
or incorrect in any way, such representations and warranties shall be
deemed modified to reflect Buyer's knowledge or deemed knowledge, as the
case may be. For purposes of this Agreement, (a) Buyer shall be "deemed to
know" of the existence of a fact or circumstance to the extent that such
fact or circumstance is disclosed by this Agreement, the Documents, any
estoppel certificate executed by any tenant of the Property and delivered
to Buyer, or any studies, tests, reports, or analyses prepared by or for
Buyer or any of its employees, agents, representatives or attorneys (all
of the foregoing being herein collectively called the "BUYER'S
REPRESENTATIVES") or otherwise obtained by Buyer or Buyer's
Representatives discloses such fact or circumstance to Buyer and (b) Buyer
shall be "deemed to know" that a representation or warranty was untrue,
inaccurate or incorrect to the extent that this Agreement, the Documents,
any estoppel certificate executed by any tenant of the Property and
delivered to Buyer, or any Buyer's Representatives, or otherwise obtained
by Buyer or Buyer's Representatives contains information which is
inconsistent with such representation or warranty.
8.3.4 Notice of Breach; Seller's Right to Cure. If after the expiration of
the Due Diligence Period but prior to the Closing, Buyer or any Buyer's
Representative obtains actual knowledge that any of the representations or
warranties made herein by Seller are untrue, inaccurate or incorrect in
any material respect, Buyer shall give Seller written notice thereof
within five (5) business days of obtaining such knowledge (but, in any
event, prior to the Closing). If at or prior to the Closing, Seller
obtains actual knowledge that any of the representations or warranties
made herein by Seller are untrue, inaccurate or incorrect in any material
respect, Seller shall give Buyer written notice thereof within five (5)
business days of obtaining such knowledge (but, in any event, prior to the
Closing). In either such event, Seller shall have the right to cure such
misrepresentation or breach and shall be entitled to a reasonable
adjournment of the Closing (not to exceed ninety (90) days) for the
purpose of such cure. If Seller is unable to so cure any misrepresentation
or breach, then Buyer, as its sole remedy for any and all such materially
untrue, inaccurate or incorrect material representations or warranties,
shall elect either (a) to waive such misrepresentations or breaches of
representations and warranties and consummate the Transaction without any
reduction of or credit against the Purchase Price, or (b) to terminate
this Agreement by written notice given to Seller on the Closing Date, in
which event this Agreement shall be terminated , the Deposit shall be
returned to Buyer, Seller shall reimburse Buyer for all reasonable legal
fees and the costs of third party reports, not to exceed $50,000 and,
thereafter, neither party shall have any further rights or obligations
hereunder except as provided in any section hereof that by its terms
expressly provides that it survives any termination of this Agreement. If
any such representation or warranty is untrue, inaccurate or incorrect but
is not untrue, inaccurate or incorrect in any material respect, Buyer
shall be deemed to waive such misrepresentation or breach of warranty, and
Buyer shall be required to consummate the Transaction without any
reduction of or credit against the Purchase Price. The untruth, inaccuracy
or incorrectness of a representation or warranty shall be deemed material
only if Buyer's aggregate damages resulting from the untruth, inaccuracy
or incorrectness of any of the representations or warranties are
reasonably estimated to exceed an amount in excess of One Hundred Thousand
and No/100 ($100,000.00) Dollars. A default of Seller's representation
under Section 8.2.2(e) shall be deemed material.
8.3.5 Survival; Limitation on Seller's Liability. The representations and
warranties made by Seller in Section 8.2 shall survive the Closing and not
be merged therein for a period of one hundred eighty (180) days and Seller
shall only be liable to Buyer hereunder for a breach of a representation
and warranty made herein or in any of the documents executed by Seller at
the Closing with respect to which a claim is made by Buyer against Seller
on or before the two hundred tenth (210t) day after the date of the
Closing. Anything in this Agreement to the contrary notwithstanding, the
maximum aggregate liability of Seller for Seller's breaches of
representations and warranties herein or in any documents executed by
Seller at Closing (including, but not limited to, any of Seller's
representation letters delivered pursuant to Subsection 6.3 (j)) shall be
limited as set forth in Section 14.15 hereof. Notwithstanding the
foregoing, however, if the Closing occurs, Buyer hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in
equity or under this Agreement to make a claim against Seller for damages
that Buyer may incur, or to rescind this Agreement and the Transaction, as
the result of any of Seller's representations or warranties being untrue,
inaccurate or incorrect if (a) Buyer knew or is deemed to know that such
representation or warranty was untrue, inaccurate or incorrect at the time
of the Closing, or (b) Buyer's damages as a result of such representations
or warranties being untrue, inaccurate or incorrect are reasonably
estimated to aggregate less than an amount equal to One Hundred Thousand
and No/100 ($100,000.00) Dollars.
9
ARTICLE 9
COVENANTS
9.1 BUYER'S COVENANTS. Buyer hereby covenants as follows:
9.1.1 Confidentiality. Buyer acknowledges that any information heretofore
or hereafter furnished to Buyer with respect to the Property has been and
will be so furnished on the condition that Buyer maintain the
confidentiality thereof. Accordingly, Buyer shall hold, and shall cause
its directors, officers and other personnel and representatives to hold,
in strict confidence, and not disclose to any other person without the
prior written consent of Seller until the Closing shall have been
consummated, any of the information in respect of the Property delivered
to or for the benefit of Buyer whether by agents, consultants, employees
or representatives of Buyer or by Seller or any of its agents,
representatives or employees, including, but not limited to, any
information heretofore or hereafter obtained by Buyer or any of Buyer's
Representatives in connection with any studies, inspections, testings or
analyses conducted by Buyer as part of its due diligence. In the event the
Closing does not occur or this Agreement is terminated, Buyer shall
promptly return to Seller all copies of documents delivered by Seller to
Buyer containing any of such information without retaining any copy
thereof or extract therefrom. Notwithstanding anything to the contrary
hereinabove set forth, Buyer may disclose such information (i) on a
need-to-know basis to its employees, consultants, members of professional
firms serving it or potential lenders, and (ii) as any governmental agency
may require in order to comply with applicable municipal, county, state or
federal statutes, codes, ordinances, laws, rules or regulations (herein
collectively called "LAWS"). The provisions of this Subsection 9.1.1 shall
survive any termination of this Agreement.
9.1.2 Buyer's Indemnity; Delivery of Reports. Buyer hereby agrees to
indemnify, defend, and hold Seller free and harmless from and against any
and all costs, losses, damages and expenses, of any kind or nature
whatsoever (including reasonable attorneys' fees and costs but excluding
punitive damages) arising out of or resulting from the breach of the terms
of Subsection 9.1.1 or the entry and/or the conduct of activities upon the
Property by Buyer or any of Buyer's Representatives in connection with the
inspections, examinations, testings and investigations of the Property
conducted at any time prior to the Closing, which indemnity shall survive
the Closing (and not be merged therein) or any earlier termination of this
Agreement. Buyer shall deliver promptly to Seller copies of all third
party reports commissioned by or on behalf of Buyer evidencing the results
of tests, studies or inspections of the Property.
9.1.3 Limit on Government Contacts. Notwithstanding any provision in this
Agreement to the contrary, except in connection with the preparation of a
so-called "Phase I" environmental report with respect to the Property,
Buyer shall not contact any governmental official or representative
regarding Hazardous Materials on or the environmental condition of the
Property without Seller's prior written consent thereto, which consent
shall not be unreasonably withheld. In addition, if Seller's consent is
obtained by Buyer, Seller shall be entitled to receive at least five (5)
days prior written notice of the intended contact and to have a
representative present when Buyer has any such contact with any
governmental official or representative. As used herein, the term
"HAZARDOUS MATERIAL" shall mean any substance, chemical, waste or material
that is or becomes regulated by any federal, state or local governmental
authority because of its toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness or reactivity, including,
without limitation, asbestos or any substance containing more than 0.1
percent asbestos, the group of compounds known as polychlorinated
biphenyls, flammable explosives, oil, petroleum or any refined petroleum
product.
9.1.4 Property Management Agreement. Buyer agrees that Buyer shall enter
into a Property Management Agreement with CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and BC
Development Company for the management of the Property after Closing in
accordance with Property Management Agreement attached hereto as Exhibit N
and incorporated herein by reference.
9.1.5 No Contact with Tenant. Buyer agrees not to make any contact with
the tenant of the Property without first obtaining the prior written
consent of Seller. In addition, if Seller's consent is obtained by Buyer,
Seller shall be entitled to receive at least five (5) days prior written
notice of the intended contact and to have a representative present when
Buyer has any such contact with the tenant.
9.2 SELLER'S COVENANTS. Seller hereby covenants as follows:
9.2.1 Service Contracts. Without Buyer's prior consent, which consent
shall not be unreasonably withheld, between the date hereof and the
Closing Date Seller shall not extend, renew, replace or modify any
Contract unless such contract (as so extended, renewed, replaced or
modified) can be terminated by the owner of the Property without penalty
on not more than thirty (30) days' notice.
9.2.2 Maintenance of Property. Except to the extent Seller is relieved of
such obligations by Article 11 hereof, between the date hereof and the
Closing Date, Seller shall maintain and keep the Property in a manner
consistent with Seller's past practices with respect to the Property;
provided, however, that, subject to Buyer's right to terminate this
Agreement prior to the expiration of the Due Diligence Period in
accordance with the terms of Article 4 hereof, Buyer hereby agrees that it
shall accept the Property subject to, and Seller shall have no obligation
to cure, (i) any violations of Laws, and (ii) any physical conditions
which would give rise to violations of Laws, which, with respect to both
clauses (i) and (ii), exist on the last day of the Due Diligence Period
and of which Buyer has actual knowledge. Between the date hereof and the
Closing Date, Seller will advise Buyer of any written notice Seller
receives after the date hereof from any governmental authority of the
violation of any Laws regulating the condition or use of the Property.
10
9.2.3 Access to Property. Between the date hereof and the Closing Date,
Seller shall allow Buyer or Buyer's representatives access to the Property
upon reasonable prior notice at reasonable times provided (a) such access
does not interfere with the operation of the Property or the rights of the
tenant; (b) after the expiration of the Due Diligence Period, Buyer shall
not be permitted to perform any further testing or other physical
evaluation of the Property prior to Closing except with Seller's prior
written consent; (c) Seller or its designated representative shall have
the right to pre-approve, in Seller's sole discretion, and be present
during any physical testing of the Property; and (d) Buyer shall return
the Property to the condition existing prior to such tests and
inspections.
9.2.4 Within five (5) business days following the Effective Date, Seller
shall submit a request to the Contracting Officer to execute and deliver a
Statement. Seller shall use good faith efforts to obtain such Statement
from the Contracting Officer.
9.2.5 Seller shall, without incurring any expense, cooperate with efforts
of Buyer to obtain any title related estoppel certificates that Buyer may
require.
9.3 MUTUAL COVENANTS.
9.3.1 Publicity. Seller and Buyer each hereby covenant that prior to and
after the Closing neither Seller nor Buyer shall issue any press release
or public statement (a "RELEASE") with respect to the Transaction without
the prior consent of the other, which consent may be granted or withheld
in the sole discretion of Seller, except to the extent required by
applicable Law. If either Seller or Buyer is required by applicable Law to
issue a Release, such party shall, at least two (2) business days prior to
the issuance of the same, deliver a copy of the proposed Release to the
other party for its review.
9.3.2 Broker. Seller and Buyer expressly acknowledge that ▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("BROKER") have acted as the
exclusive broker with respect to the Transaction and with respect to this
Agreement, and that Seller shall pay the brokerage commission due to
Broker in accordance with the separate agreement between Seller and Broker
if this Transaction closes but not otherwise, anything to the contrary in
the separate agreement between Seller and Broker notwithstanding (it being
understood that the payment of the Purchase Price to Seller and the
performance of all of Buyer's obligations hereunder to Seller are
conditions precedent to Seller's obligation to pay any brokerage
commission due Broker under the separate agreement between Seller and
Broker). By its execution hereof, Broker acknowledges that ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇ ▇▇▇▇▇▇ (collectively the "PARTICIPATING BROKER") are participating
brokers and Broker shall pay the Participating Broker in accordance with
the separate agreement between Broker and Participating Broker if this
Transaction closes but not otherwise. Seller agrees to hold Buyer harmless
and indemnify Buyer from and against any and all damages, costs or
expenses (including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by Buyer as a result of any claims by any party
(other than Broker) claiming to have represented Seller as broker in
connection with the Transaction. Buyer agrees to hold Seller harmless and
indemnify Seller from and against any and all damages, costs or expenses
(including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by Seller as a result of any claims by any party
(other than Broker) claiming to have represented Buyer as broker in
connection with the Transaction.
9.3.3 Tax Protests; Tax Refunds and Credits. Seller shall have the right
to continue and to control the progress of and to make all decisions with
respect to any contest of the real estate taxes and personal property
taxes for the Property due and payable for the calendar year in which the
Closing occurs and all prior calendar years. Buyer shall have the right to
control the progress of and to make all decisions with respect to any tax
contest of the real estate taxes and personal property taxes for the
Property due and payable for all calendar years subsequent to the calendar
year in which the Closing occurs. All real estate and personal property
tax refunds and credits received after Closing with respect to the
Property shall be applied in the following order of priority: first, to
pay the costs and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with obtaining such tax refund or credit;
second, to pay any amounts due to tenant of the Property as a result of
such tax refund or credit to the extent required pursuant to the terms of
the Lease; and third, apportioned between Buyer and Seller as follows:
(a) with respect to any refunds or credits attributable to real estate
and personal property taxes assessed for the calendar year in which
the Closing occurs (regardless of the year for which such taxes are
assessed), such refunds and credits shall be apportioned between
Buyer and Seller in proportion to the number of days in such
calendar year that each party owned the Property (with title to the
Property being deemed to have passed as of 12:01 a.m. on the Closing
Date);
(b) with respect to any refunds or credits attributable to real estate
and personal property taxes assessed for any period prior to the
calendar year in which the Closing occurs, Seller shall be entitled
to the entire refunds and credits; and
(c) with respect to any refunds or credits attributable to real estate
and personal property taxes assessed for any period after the
calendar year in which the Closing occurs, Buyer shall be entitled
to the entire refunds and credits.
9.3.4 Survival. The provisions of this Section 9.3 shall survive the
Closing (and not be merged therein) or earlier termination of this
Agreement.
11
ARTICLE 10
FAILURE OF CONDITIONS
10.1 TO SELLER'S OBLIGATIONS. If, on or before the Closing Date, Buyer is
in default of any of its obligations under this Agreement, then Seller may
elect to (a) terminate this Agreement by written notice to Buyer; or (b)
proceed to close the Transaction. If this Agreement is so terminated, then
Seller shall be entitled to retain the Deposit as liquidated damages, and
thereafter neither party to this Agreement shall have any further rights
or obligations hereunder other than any arising under any section herein
which expressly provides that it survives the termination of this
Agreement.
IN THE EVENT THE CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES
NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER, BUYER AND SELLER
AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER DO HEREBY AGREE
THAT A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT
THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS AND
SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY),
AN AMOUNT EQUAL TO THE DEPOSIT (WHICH INCLUDES ANY ACCRUED INTEREST THEREON).
SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF
THIS AGREEMENT BY BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING
HEREIN EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER. UPON DEFAULT BY BUYER, THIS AGREEMENT SHALL BE
TERMINATED, AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH
LIQUIDATED DAMAGES FROM BUYER AND ESCROW HOLDER. NOTHING CONTAINED IN THIS
PARAGRAPH SHALL LIMIT SELLER'S RIGHT TO RECOVER ATTORNEYS FEES AND COSTS IN
ENFORCING ITS RIGHTS UNDER THIS AGREEMENT.
Seller's Initials: /s/ DC Buyer's Initials: /s/ RB
10.2 TO BUYER'S OBLIGATIONS. If, at the Closing, Seller is in default of
any of its obligations under this Agreement, Buyer shall have the right,
to elect, as its sole and exclusive remedy, to take one, but not more than
one, of the following actions: (a) terminate this Agreement by written
notice to Seller, promptly after which the Deposit shall be returned to
Buyer, and to recover the actual out-of-pocket expenses paid by Buyer to
unrelated third parties in evaluating the purchase of the Property in a
total amount not to exceed Fifty Thousand Dollars ($50,000.00), (b) waive
the default and proceed to close the Transaction or (c) in lieu of (a)
above bring an action against Seller for specific performance. Buyer's
right to ▇▇▇ for specific performance is conditioned upon the parties
agreement that in order to ▇▇▇ for specific performance Buyer must forever
waive any claim against Seller for damages for any breach of Seller's
obligations hereunder (except as specifically provided for below), Buyer
will not be, in any such suit for specific performance, entitled to any
off-set or reduction in the Purchase Price, Buyer must file any such suit
for specific performance within ninety (90) days after Buyer becomes aware
of the breach by Seller of its obligations hereunder (and if Buyer does
not file any such suit with such ninety (90) day period Buyer shall be
deemed to have elected to have terminated this Agreement). Seller shall
not be deemed to be in default under this Agreement until Buyer has
provided Seller with a written notice specifying the default of Seller and
Seller has failed to cure such default within five (5) days after
receiving such notice. As a condition precedent to Buyer exercising any
right it may have to bring an action to recover the expenses referred to
above, Buyer must not be in default under this Agreement, and Buyer must
commence an action to recover the expenses within ninety (90) days after
the occurrence of Seller's default. Buyer agrees that its failure to
timely commence such an action within such ninety (90) day period shall be
deemed a waiver by it of its right to commence such an action. In the
event Buyer timely files and is otherwise entitled to ▇▇▇ for specific
performance hereunder, Seller shall reimburse Buyer for its reasonable
costs and expenses incurred by Buyer in connection with such specific
performance lawsuit.
ARTICLE 11
CONDEMNATION/CASUALTY
11.1 CONDEMNATION.
11.1.1 Right to Terminate. If, prior to the Closing Date, all or any
significant portion (as hereinafter defined) of the Property is taken by
eminent domain (or is the subject of a pending taking which has not yet
been consummated), Seller shall notify Buyer in writing of such fact
promptly after obtaining knowledge thereof, and, thereafter, Buyer shall
have the right to terminate this Agreement by giving written notice to
Seller no later than ten (10) days after the giving of Seller's notice,
and the Closing Date shall be extended, if necessary, to provide
sufficient time for Buyer to make such election. The failure by Buyer to
so elect in writing to terminate this Agreement within such ten (10) day
period shall be deemed an election to terminate this Agreement. For
purposes hereof, a "significant portion" of the Property shall mean such a
portion as shall have a value, as reasonably determined by Seller, in
excess of ten percent (10%) of the Purchase Price or shall result in a
termination of the Lease of the Property, or shall result in a reduction
of the parking spaces of the Property below the number of spaces required
by applicable Laws. If Buyer elects to terminate this Agreement as
aforesaid, the provisions of Section 11.4 shall apply.
11.1.2 Assignment of Proceeds. If (a) Buyer does not elect to terminate
this Agreement as aforesaid if all or any significant portion of the
Property is taken, or (b) a portion of the Property not constituting a
significant portion of the Property is taken or becomes subject to a
pending taking, by eminent domain, there shall be no abatement of the
Purchase Price; provided, however, that, at the Closing, Seller shall pay
to Buyer the amount of any award for or other proceeds on account of such
taking which have been actually paid to Seller prior to the Closing Date
as a result of such taking (less all reasonable costs and expenses,
including attorneys' fees and costs, incurred by Seller as of the Closing
Date in obtaining payment of such award or proceeds) and, to the extent
such award or proceeds have not been paid, Seller shall
12
assign to Buyer at the Closing (without recourse to Seller) the rights of
Seller to, and Buyer shall be entitled to receive and retain, all awards
for the taking of the Property or such portion thereof.
11.2 DESTRUCTION OR DAMAGE. In the event any of the Property is damaged or
destroyed prior to the Closing Date, Seller shall notify Buyer in writing
of such fact promptly after obtaining knowledge thereof. If any such
damage or destruction: (i) (a) is an insured casualty and (b) would cost
less than an amount equal to ten percent (10%) of the Purchase Price to
repair or restore, and (ii) does not result in a termination of the Lease,
then this Agreement shall remain in full force and effect and Buyer shall
acquire the Property upon the terms and conditions set forth herein. The
cost of repair shall be determined by an architect and contractor selected
by Seller and reasonably approved by Buyer. In such event, Buyer shall
receive a credit against the Purchase Price equal to the deductible amount
applicable under Seller's casualty policy less all costs and expenses,
including reasonable attorneys' fees and costs, incurred by Seller as of
the Closing Date in connection with the negotiation and/or settlement of
the casualty claim with the insurer ("REALIZATION COSTS"), and Seller
shall assign to Buyer all of Seller's right, title and interest in and to
all proceeds of insurance on account of such damage or destruction. In the
event the Property is damaged or destroyed prior to the Closing Date and
the cost of repair would equal or exceed an amount equal to ten percent
(10%) of the Purchase Price, or the casualty is an uninsured casualty,
then, notwithstanding anything to the contrary set forth above in this
section, Buyer shall have the right, at its election, to terminate this
Agreement. Buyer shall have ten (10) days after Seller notifies Buyer of
the cost of repairing the damage to make such election by delivery to
Seller of a written election notice ("ELECTION NOTICE") and the Closing
Date shall be extended, if necessary, to provide sufficient time for Buyer
to make such election. The failure by Buyer to deliver the Election Notice
within such ten (10) day period shall be deemed an election to terminate
this Agreement. Notwithstanding anything contained in Section 7.1(d) to
the contrary, any termination by Buyer under this Section 11.2 shall not
result in a termination of Buyer's right to acquire any remaining
Portfolio Properties under the Portfolio Agreements. In the event Buyer
does not elect to terminate this Agreement as set forth above, this
Agreement shall remain in full force and effect, Seller shall assign to
Buyer all of Seller's right, title and interest in and to any and all
proceeds of insurance on account of such damage or destruction, if any,
and, if the casualty was an insured casualty, Buyer shall receive a credit
against the Purchase Price equal to the deductible amount (less the
Realization Costs) under Seller's casualty insurance policy.
11.3 INSURANCE. Seller shall maintain the property insurance coverage
currently in effect for the Property through the Closing Date.
11.4 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 11.1 or Section 11.2, the Deposit shall be returned to Buyer. Upon
such refund, this Agreement shall terminate and neither party to this
Agreement shall have any further rights or obligations hereunder other
than any arising under any section herein which expressly provides that it
shall survive the termination of this Agreement.
11.5 WAIVER. The provisions of this Article 11 supersede the provisions of
any applicable Laws with respect to the subject matter of this Article 11.
ARTICLE 12
ESCROW
The Deposit and any other sums which the parties agree shall be held in
escrow (herein collectively called the "ESCROW DEPOSITS"), together with all
interest earned thereon, shall be held by the Escrow Agent, in trust, and
disposed of only in accordance with the following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government
insured interest-bearing instruments satisfactory to both Buyer and
Seller, shall not commingle the Escrow Deposits with any funds of
the Escrow Agent or others, and shall promptly provide Buyer and
Seller with confirmation of the investments made.
(b) The party entitled to the Deposit shall pay any income taxes on any
interest earned on the Escrow Deposits.
(c) This Agreement shall constitute Escrow Agent's escrow instructions.
Buyer and Seller shall execute and return to Escrow Agent any
additional standard escrow instructions Escrow Agent reasonably
requests that Buyer and Seller execute within two (2) business days
after they are received by Buyer and Seller. To the extent of any
conflict between the terms and conditions of this Agreement and
Escrow Agent's standard escrow instructions, the terms of this
Agreement shall control.
ARTICLE 13
LEASING MATTERS
13.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
"EXECUTION DATE" shall mean the date that both Buyer and Seller have
executed this Agreement.
"PRE-EXECUTION LEASES" shall mean, collectively, any lease for space at
the Property executed by the landlord and the tenant on or before the
Execution Date.
13.2 LEASE MODIFICATIONS. After the Execution Date and prior to the
expiration of the Due Diligence Period, Seller shall not, without Buyer's
prior written consent in each instance, which consent shall not be
unreasonably withheld and shall be given or denied, with the reasons for
such denial specified in reasonable detail, within five (5) business days
after receipt by Buyer of the information referred to in the next
sentence, (a) modify or amend any Pre-Execution Lease (except pursuant to
the exercise by a tenant of a renewal, extension or expansion option or
other right contained in such tenant's lease); (b) consent to any
assignment or sublease in connection with any Pre-
13
Execution Lease; or (c) remove any tenant under any Pre-Execution Lease,
whether by summary proceedings or otherwise, (the matters set forth in
subparagraphs (a) through (c) above are collectively referred to as a
"Lease Modification"). Seller shall furnish Buyer with a written notice of
the proposed action which shall contain information regarding the proposed
action that is reasonably necessary to enable Buyer to make informed
decisions with respect to the advisability of the proposed action
including, if available, any draft renewal, extension, amendment,
assignment or sublease. If Buyer fails to object in writing to any such
proposed action within five (5) business days after receipt of the
aforementioned information, Buyer shall be deemed to have approved the
proposed action. If any Lease requires that the landlord's consent be
given under the applicable circumstances, then Buyer shall be deemed ipso
facto to have approved such action. Any notice from Buyer rejecting the
proposed action shall include a description of the reasons for Buyer's
rejection. If Buyer rejects the proposed action, Seller shall nevertheless
retain full right, power and authority to execute such documents as are
necessary to effect such action, and Seller shall promptly advise Buyer of
the same. The foregoing notwithstanding, in the event Buyer has rejected
the proposed action but Seller nonetheless proceeds to effect it, Buyer
shall have the right, within five (5) business days after receipt of
Seller's notice that Seller has taken such action, to elect to terminate
this Agreement by the delivery to Seller of a written notice of
termination, in which case the Deposit shall be paid to Buyer and,
thereafter, the parties shall have no further rights or obligations
hereunder other than any arising under any section herein which expressly
provides that it shall survive the termination of this Agreement. If Buyer
fails to notify Seller within such time period, Buyer shall be deemed to
have fully waived any rights to terminate this Agreement pursuant to this
Section 13.2. Seller shall deliver to Buyer a true and complete copy of
each such renewal or extension agreement, modification, or amendment, as
the case may be, promptly after the execution and delivery thereof. After
the expiration of the Due Diligence Period, Seller shall not, without
Buyer's prior written consent, which consent may be withheld in Buyer's
sole discretion, enter into any Lease Modification. Seller shall furnish
Buyer with a written notice of the proposed Lease Modification. If Buyer
fails to object in writing to such proposed Lease Modification within
three (3) business days after receipt of such notice, Buyer shall be
deemed to have rejected the proposed Lease Modification. After the
Execution Date, Seller shall not, without Buyer's prior written consent,
in Buyer's sole discretion, enter into any additional leases affecting the
Property.
13.3 LEASE ENFORCEMENT. Subject to the provisions of Section 13.2 above,
prior to the Closing Date, Seller shall have the right, but not the
obligation, to enforce the rights and remedies of the landlord under any
Pre-Execution Lease, by summary proceedings or otherwise (including,
without limitation, the right to remove any tenant), and to apply all or
any portion of any security deposits then held by Seller toward any loss
or damage incurred by Seller by reason of any defaults by tenants, and the
exercise of any such rights or remedies shall not affect the obligations
of Buyer under this Agreement in any manner or entitle Buyer to a
reduction in, or credit or allowance against, the Purchase Price or give
rise to any other claim on the part of Buyer.
ARTICLE 14
MISCELLANEOUS
14.1 BUYER'S ASSIGNMENT. Buyer shall not assign this Agreement or its
rights hereunder to any individual or entity without the prior written
consent of Seller, which consent Seller may grant or withhold in its sole
discretion, and any such assignment shall be null and void ab initio;
provided, however, Buyer shall be permitted to assign its rights hereunder
upon notice to, but without the consent of Seller, to a wholly owned
subsidiary of Buyer. If Seller consents to an assignment of this
Agreement, as a condition to Buyer's right to assign this Agreement, Buyer
and the assignee shall deliver to Seller a written agreement in a form
reasonably acceptable to Seller executed by Buyer and the assignee whereby
Buyer's obligations under this Agreement are assigned to and assumed by
the assignee, and the assignee agrees to be bound by all of the terms and
conditions of this Agreement as if the assignee had originally executed
this Agreement ("ASSIGNMENT AGREEMENT"). In the Assignment Agreement, the
assignee shall also acknowledge receipt of all Due Diligence and other
information received or obtained by Buyer. An assignment of this Agreement
shall not relieve Buyer of its obligations hereunder.
14.2 DESIGNATION AGREEMENT. Section 6045(e) of the United States Internal
Revenue Code and the regulations promulgated thereunder (herein
collectively called the "REPORTING REQUIREMENTS") require an information
return to be made to the United States Internal Revenue Service, and a
statement to be furnished to Seller, in connection with the Transaction.
(a) Escrow Agent is hereby designated as the "REPORTING PERSON" (as
defined in the Reporting Requirements) for the Transaction. Escrow
Agent shall perform all duties that are required by the Reporting
Requirements to be performed by the Reporting Person for the
Transaction.
(b) Seller and Buyer shall furnish to Escrow Agent, in a timely manner,
any information requested by Escrow Agent and necessary for Escrow
Agent to perform its duties as Reporting Person for the Transaction.
14.3 SURVIVAL/MERGER. Except for the provisions of this Agreement which
are explicitly stated to survive the Closing, (a) none of the terms of
this Agreement shall survive the Closing, and (b) the delivery of the Deed
and any other documents and instruments by Seller and the acceptance
thereof by Buyer shall effect a merger, and be deemed the full performance
and discharge of every obligation on the part of Buyer and Seller to be
performed hereunder.
14.4 INTEGRATION; WAIVER. This Agreement, together with the Exhibits
hereto, embodies and constitutes the entire understanding between the
parties with respect to the Transaction and all prior agreements,
understandings, representations and statements, oral or written, are
merged into this Agreement. Neither this Agreement nor any provision
hereof may be waived, modified, amended, discharged or terminated except
by an instrument signed by the party against whom the enforcement of such
waiver, modification, amendment, discharge or termination is sought, and
then only to the extent set forth in such instrument. No waiver by either
party hereto of any failure or refusal by the other party to comply with
its obligations hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
14
14.5 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the law of the State where the Property is located.
14.6 CAPTIONS NOT BINDING; EXHIBITS. The captions in this Agreement are
inserted for reference only and in no way define, describe or limit the
scope or intent of this Agreement or of any of the provisions hereof. All
Exhibits attached hereto shall be incorporated by reference as if set out
herein in full.
14.7 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
14.8 SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
14.9 NOTICES. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be
deemed duly given or made at the time and on the date when received by
facsimile (provided that the sender of such communication shall send a
copy of such communication to the appropriate parties within one (1)
business day of such facsimile) or when personally delivered as shown on a
receipt therefor (which shall include delivery by a nationally recognized
overnight delivery service) or three (3) business days after being mailed
by prepaid registered or certified mail, return receipt requested, to the
address for each party set forth below. Any party, by written notice to
the other in the manner herein provided, may designate an address
different from that set forth below.
IF TO BUYER:
CLF DEA Birmingham LLC
c/o Caplease, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone#: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy #: ▇▇▇-▇▇▇-▇▇▇▇
COPY TO:
Wolf, Block, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy #: ▇▇▇-▇▇▇-▇▇▇▇
IF TO SELLER:
Justice Center, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone #: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy #: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC
Twelve Wyandotte Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone #: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy #: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO TITLE COMPANY OR ESCROW AGENT:
First American Title Insurance Company of New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
15
14.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original and all of which counterparts taken together
shall constitute one and the same agreement.
14.11 NO RECORDATION. Seller and Buyer each agrees that neither this
Agreement nor any memorandum or notice hereof shall be recorded and Buyer
agrees (a) not to file any notice of pendency or other instrument (other
than a judgment) against the Property or any portion thereof in connection
herewith and (b) to indemnify Seller against all costs, expenses and
damages, including, without limitation, reasonable attorneys' fees and
disbursements, incurred by Seller by reason of the filing by Buyer of such
notice of pendency or other instrument.
14.12 ADDITIONAL AGREEMENTS; FURTHER ASSURANCES. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute and
deliver such documents as the other party shall reasonably request in
order to consummate and make effective the Transaction; provided, however,
that the execution and delivery of such documents by such party shall not
result in any additional liability or cost to such party.
14.13 CONSTRUCTION. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of
this Agreement or any amendment hereof or Exhibit hereto.
14.14 LEGAL COSTS. The parties hereto agree that they shall pay directly
any and all legal costs which they have incurred on their own behalf in
the preparation of all deeds and other agreements pertaining to this
transaction and that such legal costs shall not be part of the closing
costs. If either party is found in default of this Agreement and judgment
is issued against said party for its default, then said party in default
agrees to pay any and all costs arising as a result of said default,
including reasonable attorneys' fees.
14.15 BUSINESS DAY. As used herein, the term "BUSINESS DAY" shall mean any
day other than a Saturday, Sunday, or any federal or state of Missouri
holiday. If any period expires on a day which is not a business day or any
event or condition is required by the terms of this Agreement to occur or
be fulfilled on a day which is not a business day, such period shall
expire or such event or condition shall occur or be fulfilled, as the case
may be, on the next succeeding business day.
14.16 SELLER'S MAXIMUM AGGREGATE LIABILITY. Notwithstanding any provision
to the contrary contained in this Agreement or any documents executed by
Seller pursuant hereto or in connection herewith, the maximum aggregate
liability of Seller, and the maximum aggregate amount which may be awarded
to and collected by Buyer, in connection with the Transaction and under
this Agreement (including, without limitation, in connection with the
breach of any representations and warranties contained herein) and any and
all documents executed pursuant hereto or in connection herewith for which
a claim is timely made by Buyer shall not exceed Two Hundred and Fifty
Thousand and No/100 Dollars ($250,000.00); and provided, shall be
actionable by the Buyer only if Buyer's aggregate damages resulting from
the breach are reasonably estimated to exceed an amount in excess of One
Hundred Thousand and No/100 ($100,000.00) Dollars; and provided, Seller
shall not be liable for the initial One Hundred Thousand and No/100
($100,000.00) Dollars in damages resulting from the breach. Seller shall
only have liability for the amount by which Buyer's aggregate damages
resulting from the breach exceed One Hundred Thousand and No/100
($100,000.00), and in no manner shall Seller's maximum aggregate liability
exceed Two Hundred and Fifty Thousand and no/100 Dollars ($250,000.00).
The provisions of this section shall survive the Closing (and not be
merged therein) or any earlier termination of this Agreement.
14.17 1031 EXCHANGE. Buyer may acquire or Seller may sell the Property
through a tax-free exchange under Section 1031 of the Internal Revenue
Code. In connection therewith, each party agrees to execute such documents
as are reasonably necessary or appropriate and otherwise cooperate with
the other to effectuate such exchange; provided the other party and its
representatives shall have a reasonable opportunity to review all relevant
documents prior to Closing. Seller hereby indemnifies and holds Buyer free
and harmless from any liability (including, but not limited to, the tax
ramifications to the Seller of such tax-free exchange) arising by reason
of performing the acts required hereby to effectuate the Seller's
exchange, except insofar as any such liabilities are attributable to the
failure of the Buyer to perform as required hereunder. Buyer hereby
indemnifies and holds the Seller free and harmless from any liability
(including, but not limited to, the tax ramifications to the Buyer of such
tax-free exchange) arising by reason of performing acts required hereby to
effectuate the Buyer's exchange, except insofar as any such liabilities
are attributable to the failure of the Seller to perform as required
hereunder. No party shall be required to take title or otherwise assume
any liability with respect to any property other than the Property.
14.18 PRINCIPAL/AGENT DISCLOSURE. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ are
licensed real estate brokers and are employees of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇; provided,
however, ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇ are acting solely in their capacity as
principals of Seller with respect to this Transaction and are not representing
Seller or Buyer as brokers. ▇▇▇▇▇ ▇▇▇▇▇▇ is a licensed real estate broker, an
employee of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and a principal of Seller, and is representing the
Seller with respect to this Transaction as a Participating Broker.
14.19 WAIVER OF JURY TRIAL. BUYER AND SELLER EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT RELATING TO THIS AGREEMENT AND AGREE
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
16
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed on its behalf on the day and year first above written.
SELLER
JUSTICE CENTER, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Manager - Authorized Member
Date: 07/18/2005
BUYER
CLF DEA BIRMINGHAM LLC, a Delaware
limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Date: 07/18/2005
17
AGREEMENT OF ESCROW AGENT
An original fully-executed copy of this Agreement, together with the
Initial ▇▇▇▇▇▇▇ Money, have been received by the Escrow Agent this 20 day of
July, 2005, and by execution hereof, the Escrow Agent hereby confirms its
obligation as the Escrow Agent hereunder.
FIRST AMERICAN TITLE INSURANCE
COMPANY of NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President/Counsel
Date: 07/20/2005
18
BROKER JOINDER
The undersigned joins in the execution of this Agreement for the purpose
of representing and warranting to Buyer and Seller that it: (i) is a duly
licensed real estate broker in such jurisdiction in which it is duly authorized
to earn and receive a commission in connection with the Transaction evidenced by
this Agreement, (ii) has contacted no other real estate broker, finder or other
party in connection with this transaction to whom fees may be due or payable,
and (iii) acknowledges and agrees to the terms and provisions of Section 9.3.2
hereof. The undersigned shall indemnify and hold Buyer and Seller harmless from
any and all loss, liens, claims, judgments, liabilities, costs, expenses or
damages (including reasonable attorneys' fees and court costs) resulting by
reason of a breach of the representations and warranties made herein or by
reason of any claims of entitlement to a commission, fee or other sum in
connection with the transaction evidenced by this Agreement made by any present
or former employee of the undersigned. Notwithstanding anything contained in
this Agreement to the contrary, this provision shall survive Closing or any
termination of this Agreement.
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President