EXHIBIT C (1)
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PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
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(Houston Warehouse Portfolio)
THIS AGREEMENT is made and entered into as of January 10, 1997, by
and between JMB/WAREHOUSE ASSOCIATES LIMITED PARTNERSHIP, a Texas limited
partnership (hereinafter called "SELLER"), and OLYMPIA PROPERTIES L.L.C.,
a Washington limited liability company (hereinafter called "BUYER").
R E C I T A L S
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A. Seller is the owner of those certain industrial buildings
located at ▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (containing approximately 110,810
net rentable square feet), ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (containing approximately
184,500 net rentable square feet), ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (containing
approximately 91,166 net rentable square feet), ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(containing approximately 128,459 net rentable square feet), and ▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (containing approximately 170,558 net rentable square
feet), in the City of Houston, County of ▇▇▇▇▇▇, State of Texas, consisting
of industrial buildings (collectively, the "PREMISES", and each of the
foregoing premises being sometimes herein called an "INDIVIDUAL PARCEL"),
it being understood and agreed that the foregoing square footage numbers
are contained herein for informational purposes only.
B. Buyer desires to purchase, and Seller desires to sell, such
Premises on the terms and conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. On the terms and conditions hereinafter set
forth, Seller shall sell to Buyer, and Buyer shall purchase from Seller,
the land (the "LAND") described in Exhibit "A", attached hereto and made a
part hereof, together with all of the Premises and other improvements owned
by Seller on the Land (the "IMPROVEMENTS") together with all of Seller's
right, title and interest in and to the following tangible and intangible
property (the "PERSONALTY"):
(i) all furniture, fixtures, equipment and other
personal property described in Exhibit "B" attached hereto and made a part
hereof;
(ii) to the extent they may be transferred under
applicable law, all licenses, permits, approvals, certificates of occupancy
and other approvals necessary for the current use and operation of the
"Property" (as hereinafter defined), including, without limitation, sewer
rights and permits, presently issued in connection with the operation of
all or any part of the Property or necessary to operate the Property as it
is presently being operated;
(iii) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment included as part of the Property;
(iv) all transferable telephone exchange numbers and
development rights related to the Property;
(v) to the extent assignable and to be assigned
hereunder to Buyer at Closing, all service, supply, security, management
and maintenance contracts (if any) held by Seller with respect to the
Property and its mechanical equipment, elevators and other elements;
(vi) all leases, subleases, franchises, licenses,
occupancy agreements or other agreements, demising space in or otherwise
similarly affecting or relating to the Improvements or Land, together with
any and all amendments, modifications or supplements thereto (collectively
"LEASES") and all prepaid rent, refundable tenant security deposits and
other refundable deposits, if any, thereunder (together with interest
thereon, if any, to the extent) and guaranties thereof; and
(vii) all plans, drawings, specifications, tradenames,
surveys, renderings and other technical descriptions that relate to the
Land or the Improvements.
The Land, the Improvements and the Personalty are collectively referred to
herein as the "PROPERTY". The term "INDIVIDUAL PROPERTY", as sometimes
used herein, means that portion of the Property located on or appropriately
applicable to an Individual Parcel.
2. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE")
for the Property shall be the sum of $16,850,000.00 (which amount, as
adjusted pursuant to the terms hereof, shall be paid in the manner
hereinafter set forth).
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be
paid to Seller by Buyer as follows:
A. ESCROW DEPOSIT. Within two (2) business days after
execution hereof by Buyer and Seller, Buyer shall deliver $150,000 (which
deposit, together with all interest thereon earned while such deposit is
held by "Escrow Holder", as hereinafter defined, is herein called the
"ESCROW DEPOSIT") to Chicago Title Insurance Company, at its offices at
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ (which company, in its capacity as escrow holder hereunder, is
called "ESCROW HOLDER"). The Escrow Deposit shall be delivered to Escrow
Holder by wire transfer of immediately available federal funds or by check
evidencing good funds. The amounts deposited hereunder shall be held by
Escrow Holder as a deposit against the Purchase Price in accordance with
the terms and provisions of this Agreement. At all times that the Escrow
Deposit is being held by the Escrow Holder, the Escrow Deposit shall be
invested by Escrow Holder in the following investments ("APPROVED
INVESTMENTS"): (i) United States Treasury obligations, (ii) United States
Treasury-backed repurchase agreements issued by a major money center
banking institution reasonably acceptable to Seller and Buyer, or (iii)
such other manner as may be reasonably agreed to by Seller and Buyer. The
Escrow Deposit shall be disbursed by Escrow Holder only as provided in this
Agreement.
B. CLOSING PAYMENT. The balance of the Purchase Price, as
adjusted by the application of the Escrow Deposit and by the prorations,
debits and credits specified herein, shall be paid by wire transfer of
immediately available federal funds on the "Closing Date" (as hereinafter
defined) (the amount to be paid under this subparagraph B being herein
called the "CLOSING PAYMENT").
4. CONDITIONS PRECEDENT
A. TITLE MATTERS.
(1) TITLE REPORT. Seller has delivered to Buyer a commitment
for title insurance ("TITLE COMMITMENT") covering the Property from Chicago
Title Insurance Company (which company, in its capacity as title insurer
hereunder, is herein called the "TITLE COMPANY"), together with copies of
all exceptions to title referenced therein. In addition, Seller has
delivered to Buyer updates of certain surveys of the Property prepared by
▇▇▇▇▇▇▇ & Company, (collectively the "SURVEY"), which Survey shall be
recertified to Buyer. If Buyer shall fail to deliver written notice
("TITLE OBJECTION NOTICE") setting forth those title and survey matters to
which Buyer objects on or before the end of the "Due Diligence Period" (as
hereinafter defined), Buyer shall be deemed to have approved the exceptions
to title shown on the Title Commitment and the matters disclosed on the
Survey. Approval by Buyer of any additional exceptions to title or survey
matters disclosed subsequent to the date of the Title Commitment shall be a
condition precedent to Buyer's obligation to purchase the Property. Unless
Buyer gives written notice that it disapproves any such additional
exceptions to title or survey matters, stating the exceptions so
disapproved, on or before the sooner to occur of five (5) business days
after receipt of written notice thereof or the Closing Date, Buyer shall be
deemed to have approved said additional title exceptions or survey matters.
If for any reason, on or before the Closing Date Seller does not cause such
exceptions to title or survey matters which Buyer disapproves (to the
extent Buyer is permitted hereunder to so disapprove) to be removed at no
cost or expense to Buyer (Seller having the right but not the obligation to
do so), the obligation of Seller to sell, and Buyer to buy, the Property as
herein provided shall terminate (and Seller and Buyer shall have no further
obligations in connection herewith), whereupon the Escrow Deposit shall be
returned to Buyer. Buyer shall have the option to waive the condition
precedent set forth in this paragraph 4A(1) by notice to Seller. In the
event of such waiver, such condition shall be deemed satisfied. All
matters set forth on the Title Commitment which are not timely objected to
by Buyer in accordance with this paragraph 4A(1), are herein called the
"PERMITTED EXCEPTIONS". The term "Permitted Exceptions" shall additionally
include (i) any title matters objected to by Buyer, which objections are
subsequently waived in writing by Buyer, and (ii) any title matters
objected to by Buyer, which objections are cured to Buyer's satisfaction.
Notwithstanding the foregoing or any other provision of this Agreement to
the contrary, Seller shall be obligated to remove any deeds of trust
covering the Property which secure any financing obtained by Seller, and
shall either remove or cause the Title Company to affirmatively insure over
(i) any mechanic's or materialmen's liens against the Property as a result
of work done by or on behalf of Seller, (ii) any tax or judgment liens
against Seller, and (iii) adverse matters intentionally created by Seller
after the date of this Agreement.
(2) EXCEPTIONS TO TITLE. Buyer shall be obligated to accept
title to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and payable;
(b) The printed exceptions which appear in the standard TLTA
owner's policy of title insurance issued by Title Company; provided,
however (i) the exception as to area and boundaries may, at the option and
expense of Buyer, be deleted except for "any shortages in area", (ii) the
standard exception as to restrictive covenants shall either be deleted or
except only for any restrictive covenants that are Permitted Exceptions,
and (iii) the exception as to standby fees and taxes shall be limited to
standby fees and taxes for the year of Closing and subsequent years; and
(c) THE PERMITTED EXCEPTIONS. It shall be a condition
precedent to Buyer's obligation to purchase the Property that Title Company
issue to Buyer on the Closing Date a standard form TLTA owner's title
insurance policy ("OWNER'S POLICY"), in the face amount of the Purchase
Price, which policy shall (i) show title to the Property to be vested of
record in Buyer, (ii) show the Permitted Exceptions to be the only
exceptions to title, and (iii) contain such endorsements (to the extent
available in Texas) and reinsurance as Buyer shall require (and the Title
Company shall agree to issue) prior to the expiration of the Due Diligence
Period.
B. DUE DILIGENCE REVIEWS. Buyer shall have until 5:00 p.m.
(Central time) on February 7, 1997 (the "DUE DILIGENCE PERIOD") within
which to complete all of Buyer's due diligence examinations, reviews and
inspections of all matters pertaining to the purchase of the Property,
including all leases, service contracts, and all physical, environmental
and compliance matters and conditions respecting the Property. During the
Due Diligence Period, Seller shall provide Buyer with reasonable access to
the Property upon reasonable advance notice and either has or shall
hereafter make available to Buyer, to the extent in Seller's possession or
control, such leases, service contracts and other contracts, agreements,
licenses, permits and certificates of occupancy, plans and specifications,
third party environmental reports, standard form lease, and other documents
and agreements as reasonably agreed upon by Seller and Buyer. Buyer shall
promptly commence, and shall diligently and in good faith pursue, its due
diligence review hereunder. Buyer shall at all times conduct its due
diligence review, inspections and examinations in a manner so as to not
cause damage, loss, cost or expense to Seller or the Property and so as to
not unreasonably interfere with or disturb any tenant at the Property, and
Buyer will indemnify, defend, and hold Seller and the Property harmless
from and against any such damage, loss, cost or expense, including
reasonable attorneys' fees (the foregoing obligation surviving any
termination of this Agreement); provided, however, the foregoing shall not
apply to matters which were caused not by Buyer or its agents but by the
negligence or misconduct of Seller. In no event shall Buyer make any
intrusive physical testing (environmental, structural or otherwise) at the
Property (such as soil borings or the like) without Seller's prior written
consent, which consent shall not be unreasonably withheld (and shall in all
events promptly return the Property to its prior condition and repair
thereafter). Buyer may contact any tenant of the Property upon prior
notification to Seller (any such contact to be subject to reasonable
requirements imposed by Seller). Without limitation thereon, Seller shall
have the right, at its option, to cause a representative of Seller to be
present at all tenant interviews, as well as other inspections, reviews and
examinations conducted hereunder. In the event this Agreement is
terminated prior to closing hereunder, Buyer shall promptly deliver to
Seller, at Seller's written request, true, accurate and complete copies of
any written reports relating to the Property prepared for or on behalf of
Buyer by any third party; provided, however, that neither Buyer nor any
such third party make any representations or warranties regarding such
reports. In addition, in the event of termination hereunder, Buyer shall
return all documents and other materials furnished to or on behalf of Buyer
by Seller hereunder. Buyer shall keep all information or data received or
discovered in connection with any of the inspections, reviews or
examinations strictly confidential; provided, however, that Buyer shall be
entitled to disclose such information to Buyer's attorneys, accountants,
advisors, consultants and prospective debt and equity financing sources who
reasonably need to be informed in connection with Buyer's determinations
hereunder (and who shall, in turn, be instructed to keep such information
confidential). If, on or before the expiration of the Due Diligence
Period, Buyer shall determine in its sole and absolute discretion that it
intends to proceed with the acquisition of the Property, then Buyer shall
promptly notify Seller and Escrow Holder of such determination in writing
(such notice being herein called the "APPROVAL NOTICE"), and thereafter,
Buyer shall have no further right to terminate this Agreement pursuant to
this paragraph 4B. If, however, on or before the expiration of the Due
Diligence Period, Buyer shall determine in its sole and absolute discretion
that it no longer intends to acquire the Property, then Buyer shall
promptly notify Seller of such determination in writing (such notice being
herein called the "TERMINATION NOTICE"), whereupon the Escrow Deposit shall
be returned to Buyer and this Agreement, and the obligations of the parties
hereunder, shall terminate. In the event that Buyer shall fail to have
delivered the Approval Notice to Seller on or before the expiration of the
Due Diligence Period, Buyer shall be deemed to have elected not to proceed
with the acquisition of the Property whereupon the Escrow Deposit shall be
returned to Buyer and this Agreement, and the obligations of the parties
hereunder, shall terminate.
C. ESTOPPEL CERTIFICATES. Receipt of estoppel certificates
("TENANT ESTOPPEL CERTIFICATES"), dated not more than thirty (30) days
prior to the Closing Date, from a sufficient number of tenants at the
Property so that Tenant Estoppel Certificates shall be received with
respect to not less than 90% of the net rentable square feet of space
covered by leases in effect as of the date hereof, shall be a condition
precedent to Buyer's obligation to purchase the Property hereunder. Each
Tenant Estoppel Certificate shall either be substantially in the form
provided in Exhibit "C-1" attached hereto and made a part hereof (with
limitations to a tenant's knowledge or actual knowledge in place of to the
best of tenant's knowledge, where applicable, being deemed acceptable
revisions) or in the form, if any, prescribed in the applicable tenant
lease (with all blanks filled in and the information contained therein
consistent with the terms of the Leases). Seller's sole obligation
hereunder shall be to utilize commercially reasonable efforts to obtain a
Tenant Estoppel Certificate from each tenant at the Property (such
reasonable efforts obligation not including any obligation to institute
legal proceedings or to expend any monies therefor); provided, however, if
the condition specified in this paragraph 4C is satisfied but not all
tenants shall have delivered Tenant Estoppel Certificates, Seller shall
deliver a certificate ("SELLER ESTOPPEL CERTIFICATE") with respect to each
lease for which no Tenant Estoppel Certificate is received. The Seller
Estoppel Certificate shall be in substantially the same form as the Tenant
Estoppel Certificate attached as Exhibit "C-1" hereto, with appropriate
changes to reflect that (i) such certificate is being delivered by Seller
rather than the tenant, (ii) paragraphs (c), (d), (f), (h) are limited to
Seller's knowledge (as defined in this Agreement), and paragraph (o) will
be deleted. If on or before the Closing Date, the conditions set forth
herein are not satisfied (or waived by Buyer), then this Agreement shall
terminate at Buyer's option (and the Escrow Deposit shall be promptly
returned to Buyer).
D. PERFORMANCE BY SELLER; POSSESSION. The performance and
observance, in all material respects, by Seller of all covenants and
agreements of this Agreement to be performed or observed by Seller prior to
or on the Closing Date shall be a condition precedent to Buyer's obligation
to purchase the Property. In addition, in the event that on the Closing
Date (i) the "Seller Closing Certificate" (as hereinafter defined) shall
disclose any material adverse changes in the representations and warranties
of Seller contained in paragraph 7A below which are not otherwise permitted
or contemplated by the terms of this Agreement, or (ii) the Property is not
in substantially the same physical condition as it is at the end of the Due
Diligence Period, reasonable wear and tear and, subject to paragraph 6
hereof, casualty excepted, then Buyer shall have the right to terminate
this Agreement, in which event the Escrow Deposit shall be immediately
returned to Buyer. Further, it shall be a condition to Buyer's obligations
to close that, on the Closing Date, Buyer shall receive actual possession
of the Property free of all occupancy rights other than those specified
under the Leases or the Permitted Exceptions. Buyer shall have the option
to waive the condition precedent set forth in this paragraph 4D by written
notice to Seller. In the event of such waiver, such condition shall be
deemed satisfied.
E. PERFORMANCE BY BUYER. The performance and observance, in
all material respects, by Buyer of all covenants and agreements of this
Agreement to be performed or observed by it prior to or on the Closing Date
shall be a condition precedent to Seller's obligation to sell the Property.
In addition, in the event that the "Buyer Closing Certificate" (as
hereinafter defined) shall disclose any material adverse changes in the
representations and warranties of Buyer contained in paragraph 7B below
which are not permitted or contemplated by the terms of this Agreement,
then Seller shall have the right to terminate this Agreement. Seller shall
have the option to waive the condition precedent set forth in this
paragraph 4E by written notice to Buyer. In the event of such waiver, such
condition shall be deemed satisfied.
F. ENVIRONMENTAL MATTERS. Notwithstanding anything to the
contrary contained in this Agreement, if as a result of Buyer's
environmental reviews Buyer shall determine, in its sole and absolute
discretion either that (i) any one or more Individual Property is not
acceptable to Buyer by reason of its environmental condition or
(ii) additional environmental testing or reviews are necessary in order for
Buyer to approve such condition and Seller does not permit the same to be
done or extend the Due Diligence Period and Closing Date for reasonable
periods to accomplish the same (Seller having the right to make such
determinations in its sole and absolute discretion), then the applicable
Individual Property or Properties shall be excluded from the sale hereunder
and the Purchase Price for the remaining Property shall be reduced by the
amount allocated to such Individual Property or Properties as indicated in
Exhibit "C-2" attached hereto and made a part hereof (and this Agreement
shall be appropriately modified to reflect the same). Buyer shall have the
right to waive the condition precedent set forth in this paragraph 4E by
written notice to Seller (in which event the Individual Property or
Properties as to which such condition is waived shall not be excluded from
the sale hereunder and Purchase Price shall not be reduced with respect
thereto).
5. CLOSING PROCEDURE TRANSACTIONS. The sale and purchase
herein provided shall be consummated on the Closing Date through escrow
pursuant to the "Escrow Instructions" (as hereinafter defined). As used
herein, "CLOSING DATE" means February 10, 1997, or such earlier date as may
be agreed upon by Buyer and Seller in writing.
A. ESCROW. By the Closing Date, the parties shall deliver to
Title Company, at its office located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the following: (1) by Seller, a duly executed and
acknowledged original special warranty deed ("DEED") in favor of Buyer, in
the form of Exhibit "D" attached hereto and made a part hereof, (2) by
Buyer, the Closing Payment in immediately available federal funds, and
(3) by each of the parties, the remaining closing documents provided for in
paragraph 5B hereof. Such deliveries shall be made pursuant to either
joint or separate escrow instructions ("ESCROW INSTRUCTIONS") to be
executed by Buyer, Seller and Title Company in form reasonably acceptable
to such parties in order to effectuate the intent hereof. The conditions
to the closing of such escrow shall include the Title Company's receipt of
the Deed, the Closing Payment, the other closing documents provided for in
paragraph 5B hereof, and the commitment of the Title Company to issue the
Owner's Policy in the form specified in paragraph 4A(2) hereof.
B. DELIVERY TO PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then on the Closing Date
(1) the Deed shall be delivered to Buyer by Title Company's depositing the
same for recordation, (2) the Closing Payment (and the Escrow Deposit)
shall be delivered to Seller and (3) the following items shall be delivered
by the Title Company as provided for in the Escrow Instructions:
(1) SELLER DELIVERIES. Seller shall deliver the following to
Title Company on or before the Closing Date (and, upon closing, Title
Company shall deliver the same to Buyer):
(a) A duly executed and acknowledged ▇▇▇▇ of sale, assignment
and assumption agreement ("▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION
AGREEMENT") in the form of Exhibit "E" attached hereto and made a part
hereof;
(b) A certificate of Seller ("SELLER CLOSING CERTIFICATE")
reaffirming the representations and warranties contained in paragraph 7A
hereof to the Closing Date and noting any changes thereto, together with
any Seller Estoppel Certificate which may be required pursuant to
paragraph 4C hereof;
(c) Duly executed and acknowledged certificates regarding the
"non-foreign" status of Seller satisfying both federal and state law
requirements;
(d) A notice to the tenants ("TENANT NOTICE") signed by Seller
advising them of the sale in form reasonably satisfactory to Seller and
Buyer;
(e) To the extent in Seller's possession or control, originals
of all Leases, "Service Agreements" (as hereinafter defined), plans and
specifications, tenant files, invoices, ▇▇▇▇▇▇▇▇ and other similar books
and records necessary for the continued operation of the Property,
licenses, permits, certificates of occupancy, certificates of insurance
from any tenants, and keys tagged for identification, to the extent the
foregoing relate to the Property (such delivery being made by causing such
items to be retained at the Property);
(f) If requested by Buyer, an executed assignment of Seller's
rights under any of the Permitted Exceptions, to the extent such rights are
assignable, such assignment being in substantially the same form as the
Assignment and Assumption Agreement (and being herein called the
"ADDITIONAL ASSIGNMENT AND ASSUMPTION AGREEMENT");
(g) Evidence reasonably satisfactory to Buyer and Escrow Holder
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder;
(h) The originals of any Tenant Estoppel Certificates received
by Seller pursuant to paragraph 4C hereof; and
(i) Such additional documents as may be reasonably required by
Buyer and Title Company in order to consummate the transactions hereunder
(provided the same do not increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver the following to
Title Company on or before the Closing Date (and, upon closing, Title
Company shall deliver the same to Seller):
(a) A duly executed and acknowledged ▇▇▇▇ of Sale, Assignment
and Assumption Agreement;
(b) A certificate of Buyer ("BUYER CLOSING CERTIFICATE")
updating the representations and warranties contained in paragraph 7B
hereof to the Closing Date and noting any changes thereto;
(c) A Tenant Notice signed by Buyer;
(d) An executed Additional Assignment and Assumption Agreement,
if the same is executed by Seller;
(e) Evidence reasonably satisfactory to Seller and Escrow
Holder respecting the due organization of Buyer and the due authorization
and execution of this Agreement and the documents required to be delivered
hereunder; and
(f) Such additional documents as may be reasonably required by
Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
(3) INDIVIDUAL PROPERTY DELIVERIES. If requested by Buyer in
writing prior to the Closing Date, Seller hereby agrees that a separate
Deed, ▇▇▇▇ of Sale, Assignment and Assumption Agreement and Additional
Assignment and Assumption Agreement will be delivered for each Individual
Property being sold hereunder.
C. CLOSING COSTS. Seller shall pay the title insurance
premiums (at a rate not in excess of standard issue rates) attributable to
standard TLTA coverage respecting the Owner's Policy, and the costs of the
Survey. Buyer shall pay (i) all title insurance premiums attributable to
the Owner's Policy in excess of standard TLTA coverage, as well as any
costs for any endorsements to the Owner's Policy, to the extent any of the
foregoing is requested by Buyer, (ii) all costs and expenses related to
Buyer's due diligence examinations, reviews and inspections, and (iii) all
recording fees or charges. Seller and Buyer shall each pay one-half of the
closing escrow charges. Seller and Buyer shall each pay its own attorney's
fees and expenses and its own respective shares of prorations as
hereinafter provided.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be prorated between
Seller and Buyer as of the Closing Date (with Buyer being allocated items
for the Closing Date itself):
(a) All real estate taxes and assessments on the Property and
Personal Property assessments for the current year. In no event shall
Seller be charged with or be responsible for any increase in the taxes on
the Property resulting from any improvements made or leases entered into on
or after the Closing Date. In the event that any assessments on the
Property are payable in installments, then the installment for the current
period shall be prorated (with Buyer assuming the obligation to pay any
installments due after the Closing Date).
(b) All fixed and additional rentals under the Leases and
refundable security deposits. Seller shall deliver or provide a credit in
an amount equal to all prepaid rentals for periods after the Closing Date
and all refundable security deposits (to the extent the foregoing were made
by tenants under the tenant leases and are not applied or forfeited prior
to the Closing Date) to Buyer on the Closing Date. If Seller is holding
any letters of credit in lieu of cash security deposits, then, at closing,
Seller shall either (i) assign such letters of credit to Buyer if the same
are assignable, or (ii) if not assignable, Seller shall reasonably
cooperate (at Buyer's expense) with Buyer to have such letters of credit
reissued to Buyer. Rents which are delinquent as of the Closing Date shall
not be prorated on the Closing Date (and Seller shall provide a schedule at
closing itemizing all such delinquent rentals). Buyer shall include such
delinquencies in its normal billing and shall use reasonable efforts to
pursue the collection thereof in good faith after the Closing Date (but
Buyer shall not be required to litigate or declare a default in any Lease).
To the extent Buyer receives rents on or after the Closing Date, such
payments shall be applied first toward then current rent owed to Buyer in
connection with the applicable Lease for which such payments are received,
and any excess monies received (net of Seller's share of reasonable third
party costs of collection incurred by Buyer in connection therewith) shall
be applied toward the payment of any delinquent rents, with Seller's share
thereof, if any, being promptly delivered to Seller. Buyer may not waive
any delinquent rents nor modify a Lease so as to reduce or otherwise affect
amounts owed thereunder for any period in which Seller is entitled to
receive a share of charges or amounts without first obtaining Seller's
written consent. Seller hereby reserves the right to pursue an action
against any tenant owing delinquent rents and any other amounts to Seller
to collect such amounts, together with damages and the like as a result
thereof (but in no event shall Seller have any right to institute eviction
proceedings with respect thereto). Buyer shall reasonably cooperate with
Seller in any collection efforts hereunder (but shall not be required to
litigate or declare a default in any Lease). With respect to delinquent
rents and any other amounts or other rights of any kind respecting tenants
who are no longer tenants of the Property as of the Closing Date, Seller
shall retain all rights relating thereto.
(c) All utility costs and other normal and customary operating
expenses.
(d) On or before the Closing Date, Seller shall pay or cause to
be paid (or there shall be escrowed for payment at closing) all leasing and
brokerage commissions which are payable with respect to Leases affecting
such Property executed prior to the date hereof, whether the same are due
on or prior to the Closing Date or payable in installments subsequent
thereto and including any portion thereof due upon any renewals of any such
Lease or options to lease additional space but only if such renewal or
additional space option commences prior to the date of this Agreement.
Buyer shall assume the payment of all leasing and brokerage commissions
which may hereafter become due with respect to (i) any renewals of any
Leases or options to lease additional space under any Leases if such
renewals or additional space options are exercised and commence or arise
after the date of this Agreement so long as Buyer has received copies of
all commission agreements for such renewals or additional space options
during the Due Diligence Period, and (ii) any Leases hereinafter executed
prior to the closing with Buyer's written consent.
(2) CALCULATION. The prorations and payments shall be made on
the basis of a 365-day year and shall be set forth on a written statement
submitted to Buyer and Seller by Escrow Holder prior to the Close of Escrow
and approved by Buyer and Seller. In the event any prorations or
apportionments made under this subparagraph D shall prove to be incorrect
for any reason, then any party shall be entitled to an adjustment to
correct the same. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and reprorated when the information is
available. The obligations of Seller and Buyer under this paragraph 5D
shall survive the closing.
6. CONDEMNATION OR DESTRUCTION OF PROPERTY. In the event
that, after the date hereof but prior to the Closing Date, either any
portion of the Property is taken pursuant to eminent domain proceedings or
any of the improvements on the Property are damaged or destroyed by any
casualty, the risk of any such loss shall be assumed by Seller, Seller
shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction herein
provided, assign to Buyer all claims of Seller respecting any condemnation
or casualty insurance coverage (including rent loss insurance attributable
to post-closing periods), as applicable, and all condemnation proceeds or
proceeds from any such casualty insurance received by Seller on account of
any casualty (the damage from which shall not have been repaired by Seller
prior to the Closing Date), as applicable. In connection with any
assignment of insurance proceeds hereunder, Seller shall credit Buyer with
an amount equal to the applicable deductible amount under Seller's
insurance; provided, however, if the amount of such deductible shall exceed
$100,000, Seller shall have the right to terminate this Agreement by notice
to Buyer given on or before the Closing Date (whereupon the Escrow Deposit
shall be returned to Buyer). If (i) the condemnation award or the cost of
repair of damage to the Property on account of a casualty, as applicable,
shall exceed $100,000 or (ii) regardless of the amount such casualty is
uninsured or underinsured, and Seller does not elect to credit Buyer with
an amount equal to the cost to repair such uninsured or underinsured
casualty (Seller having the right, but not the obligation, to do so), then
in either such event Buyer may, at its option, terminate this Agreement by
notice to Seller, given on or before the Closing Date and receive a refund
of the Escrow Deposit.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set forth in
this Agreement below or in the documents delivered by Seller at closing
pursuant to paragraph 5B(1) hereof, the sale of the Property hereunder is
and will be made on an "as is" basis, without representations and
warranties of any kind or nature, express, implied or otherwise, including,
but not limited to, any representation or warranty concerning title to the
Property, the physical condition of the Property (including, but not
limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting income,
expenses, charges, liens or encumbrances, rights or claims on, affecting or
pertaining to the Property or any part thereof. Buyer acknowledges that,
during the Due Diligence Period, Buyer will examine, review and inspect all
matters which in Buyer's judgment bear upon the Property and its value and
suitability for Buyer's purposes. Except as to matters specifically set
forth in this Agreement or in the documents delivered by Seller at closing
pursuant to paragraph 5B(1) hereof, Buyer will acquire the Property solely
on the basis of its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by the Owner's
Policy.
(2) REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Buyer that, except as set forth in Exhibit "F"
attached hereto and made a part hereof:
(a) DUE AUTHORITY. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Seller are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Seller. Seller is a limited
partnership, duly organized and validly existing under the laws of the
State of Texas, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the legal capacity and
authority to enter into this Agreement and consummate the transactions
herein provided without the consent or joinder of any other party (except
as otherwise set forth in this Agreement).
(b) NO BANKRUPTCY. Seller is not the subject of any
bankruptcy, receivership or insolvency proceeding.
(c) RENT ROLL. To Seller's knowledge, attached as
Exhibit "G-1" and made a part hereof is a true, complete and accurate rent
roll, as of the date thereof, with respect to all Leases respecting the
Property (including all amendments or modifications thereto). To Seller's
knowledge, neither Seller nor any tenant is in monetary default or material
non-monetary default under any of the Leases that remains uncured. Without
limitation thereon, to Seller's knowledge, Seller has completed all of
Seller's obligations under the Leases that are required to be performed
prior to the date hereof (including, with respect to all tenant improvement
work required to be constructed by Seller). To Seller's knowledge, except
as set forth in Exhibit "G-2", there are no brokerage agreements which
impose obligations to pay lease commissions under the Lease for periods
following the Closing Date. To Seller's knowledge, except as may be set
forth in Exhibit "G-1" or its applicable Lease, no tenant is entitled to
any rebate, concession, deduction or offset or has paid any rent or other
charge for a period of more than 30 days in advance.
(d) LITIGATION. There is no action, litigation, condemnation
or other proceeding pending or, to Seller's knowledge threatened in writing
against the Property or against Seller with respect to the Property.
(e) COMPLIANCE. To Seller's knowledge, Seller has received no
written notice from any governmental authority having jurisdiction over the
construction, use, occupancy or operation of the Property to the effect
that the Property is not in compliance with any applicable laws and
ordinances.
(f) SERVICE AGREEMENTS. To Seller's knowledge, there are no
service agreements or contracts ("SERVICE AGREEMENTS") or other agreements
(other than as expressly set forth in this Agreement) relating to the
Property which will be in force on the Closing Date, except as described in
Exhibit "H" attached hereto and made a part hereof, and Seller is not in
monetary default or material non-monetary default thereunder that remains
uncured.
(g) OPERATING STATEMENTS. The operating statements for the
Property for the periods 1993, 1994, 1995, and year-to-date 1996 (through
10/31/96) were prepared in the usual course of Seller's business.
(h) EMPLOYEES. Seller does not employ any employees at the
Property (any such employees being employed by Seller's third party
property manager).
(i) FOREIGN PERSON. Seller is not a foreign person within the
meaning of Section 1445(f) of the Internal Revenue Code.
(j) ENVIRONMENTAL MATTERS. To Seller's knowledge, except as
set forth in the reports described in Exhibit "I" attached hereto and made
a part hereof (the "ENVIRONMENTAL REPORTS", which Environmental Reports, to
Seller's knowledge, constitute all third party environmental reports in
Seller's possession or control), Seller has received no written notice and
Seller has no knowledge otherwise of the existence, deposit, storage,
removal, burial or discharge of any material known to Seller to be a
"Hazardous Material" at, upon, under or within the Property, in an amount
which would, as of the date hereof, give rise to an "Environmental
Compliance Cost" or which would otherwise constitute a violation of any
statutory or judicial, federal, state or local environmental law or
regulation. The term "HAZARDOUS MATERIAL" shall mean (i) those substances
included within the definitions of any one or more of the terms "hazardous
substances," "hazardous materials," and "toxic substances," in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), as amended, 42 U.S.C. Sec. 9061 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sec. 6901 et
seq., and the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
Section 1801 et seq., and in the regulations promulgated pursuant to said
laws; (ii) those substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are or become regulated under
applicable local, state or federal laws, or which are classified as
hazardous or toxic under federal, state or local laws or regulations; and
(iv) any materials, wastes or substances that are (a) petroleum; (b)
friable asbestos; (c) polychlorinated biphenyls; (d) designated as a
"Hazardous Substance" pursuant to Section 311 of the Clean Water Act, 13
U.S.C. Section 1321 et seq. (33 U.S.C. Section 1321) or designated as
"toxic pollutants" subject to Chapter 26 of the Clean Water Act pursuant to
Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (e) flammable
explosives; or (f) radioactive materials; provided, however, that the term
"Hazardous Material" shall not include motor oil and gasoline contained in
or discharged from vehicles not used primarily for the transport of motor
oil or gasoline. The term "ENVIRONMENTAL COMPLIANCE COST" means any
reasonable out-of-pocket cost, fee or expense incurred directly to satisfy
any requirement imposed by any governmental agency authorized to regulate
materials and substances in the environment which has jurisdiction over the
Property to bring the Property into compliance with applicable Federal,
State and local laws and regulations directly relating to the existence on
the Property of any Hazardous Material. Buyer hereby acknowledges that it
is acquiring the Property subject to the matters disclosed in the
Environmental Reports, and Buyer shall at Closing, assume the obligations
for, and release Seller from any liability relating to (whether under
local, state or federal law), any matters disclosed in the Environmental
Reports.
(k) SELLER'S KNOWLEDGE. For purposes of this Agreement,
Seller's knowledge means the present actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Vice President of JMB Realty Corporation and partnership coordinator
overseeing the investment of Seller in the Property (after having made
inquiry of Seller's third party property manager with respect to the
representations and warranties contained in this Agreement).
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants to Seller as follows: This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Buyer are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Buyer; Buyer is a limited
liability company, duly organized and validly existing and in good standing
under the laws of the State of Washington and is duly authorized and
qualified to do all things required of it under this Agreement; and Buyer
has the legal capacity and authority to enter into this Agreement and
consummate the transactions herein provided without the consent or joinder
of any other party (except as otherwise set forth in this Agreement).
C. SURVIVAL. Any cause of action of a party for a breach of
the foregoing representations and warranties shall survive until December
15, 1997 (the "SURVIVAL TERMINATION DATE"), at which time such
representations and warranties (and any cause of action resulting from a
breach thereof not then in litigation) shall terminate. Notwithstanding
the foregoing, if Buyer shall have actual knowledge as of the Closing Date
that any of the representations or warranties of Seller contained herein
are false or inaccurate or that Seller is in breach or default of any of
its obligations under this Agreement, and Buyer nonetheless closes the
transactions hereunder and acquires the Property, then provided such false
or inaccurate representations, warranties, breaches or defaults were not
knowingly or intentionally made in bad faith, Seller shall have no
liability or obligation respecting such matters (and any cause of action
resulting therefrom shall terminate upon such closing hereunder).
D. INTERIM COVENANTS OF SELLER. Until the Closing Date or the
sooner termination of this Agreement (and as conditions precedent to
Buyer's obligation to purchase the Property):
(1) Seller shall maintain the Property in the same manner as
prior hereto pursuant to its normal course of business (such maintenance
obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior consent of Buyer,
except those deemed reasonably necessary by Seller which shall be
terminated at closing (and Seller shall promptly provide Buyer with copies
of all such additional service contracts). To the extent permitted
pursuant to the terms thereof, Seller shall cause any Service Agreements
designated by Buyer in writing to be terminated on the Closing Date;
provided, however, except for any management agreements (which Seller
agrees to terminate at its sole cost and expense), Seller and Buyer shall
each be responsible for 50% of any penalties, fees or other expenses which
may be required to be paid pursuant to the terms of such Service Agreements
as a result of such termination to the extent Buyer gives Seller less than
30 days notice to terminate (it being understood and agreed that neither
party shall be obligated to expend more than $5,000 in the aggregate in
connection therewith).
(3) Seller shall continue to offer the Property for lease in
the same manner as prior hereto pursuant to its normal course of business
and shall keep Buyer reasonably informed as to the status of leasing prior
to the Closing Date; provided, however, Seller shall not enter into any new
leases or material modifications of existing leases without the written
consent of Buyer (which consent will not be unreasonably withheld or
materially delayed). Notwithstanding anything herein to the contrary, at
closing of the transactions hereunder, Buyer shall bear all costs and
expenses related to any new leases or material modifications of existing
leases entered into by Seller after the date hereof which have been
approved by Buyer.
(4) Seller shall maintain its existing insurance coverage (or
substantially equivalent coverage) through the Closing Date.
8. INDEMNIFICATION.
A. BY BUYER. Buyer shall hold harmless, indemnify and defend
Seller from and against: (1) any and all third party claims for personal
injury or property damage resulting from Buyer's torts related to the
Property and occurring on or after the Closing Date, and (2) all reasonable
costs and expenses, including reasonable attorneys' fees, incurred by
Seller as a result of the foregoing.
B. BY SELLER. Seller shall hold harmless, indemnify and
defend Buyer from and against: (1) any and all third party claims for
personal injury or property damage resulting from Seller's torts related to
the Property and occurring prior to the Closing Date and (2) all costs and
expenses, including reasonable attorneys' fees, incurred by the Buyer as a
result of such claims.
C. GENERALLY. Each indemnification under this Agreement shall
be subject to the following provisions: The indemnitee shall notify
indemnitor of any such claim against indemnitee within 30 days after it has
notice of such claim, but failure to notify indemnitor shall in no case
prejudice the rights of indemnitee under this Agreement unless indemnitor
shall be prejudiced by such failure and then only to the extent of such
prejudice. Should indemnitor fail to discharge or undertake to defend
indemnitee against such liability within 10 days after the indemnitee gives
the indemnitor written notice of the same, then indemnitee may settle such
liability, and indemnitor's liability to indemnitee shall be conclusively
established by such settlement, the amount of such liability to include
both the settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by indemnitee in effecting such
settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN
PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS
AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN
PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
PARAGRAPH 6 HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND
NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER;
PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY
BY REASON OF SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS
OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN
BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT; AND
PROVIDED FURTHER HOWEVER, IF SELLER SHALL WILLFULLY TAKE ACTIONS SO AS TO
PREVENT THE AVAILABILITY OF A SPECIFIC PERFORMANCE ACTION TO BUYER, BUYER
SHALL BE ENTITLED TO A RETURN OF THE ESCROW DEPOSIT AND REIMBURSEMENT OF
ITS ACTUAL OUT-OF-POCKET COSTS PAID TO THIRD PARTIES IN CONNECTION WITH THE
TRANSACTIONS HEREUNDER (SUCH REIMBURSEMENT NOT TO EXCEED $150,000 IN THE
AGGREGATE). EXCEPT AS SET FORTH ABOVE, NO OTHER ACTIONS, FOR DAMAGES OR
OTHERWISE, SHALL BE PERMITTED IN CONNECTION WITH ANY DEFAULT BY SELLER. IN
THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF
BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE
DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND
IN CONNECTION WITH THIS AGREEMENT (AND THIS AGREEMENT SHALL THEREUPON
TERMINATE). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE
ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE.
IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL
INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND
THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT
OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL
NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE
ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT BY REASON OF SUCH DEFAULT. NOTHING CONTAINED HEREIN SHALL LIMIT
EITHER PARTY'S RIGHTS TO ATTORNEYS' FEES AND OTHER COSTS SPECIFIED IN
PARAGRAPH 10I BELOW IN THE EVENT OF LITIGATION RESPECTING THE MATTERS
PROVIDED FOR IN THIS PARAGRAPH 9.
GE MR
----------------- ----------------
Seller's Initials Buyer's Initials
10. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or
to its knowledge is in any way connected with any of such transactions. In
the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and, except for any claims by Broker which are
Seller's responsibility hereunder, Buyer shall indemnify and defend Seller
from the same if it shall be based upon any statement or agreement alleged
to have been made by Buyer. The indemnification obligations under this
paragraph 10 A(1) shall survive the closing of the transactions hereunder
or the earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes, Seller
agrees to pay a brokerage commission to ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC, ("BROKER")
pursuant to a separate written agreement. The foregoing payment shall be
the sole commissions, fees or payments payable to Broker in connection with
the transactions hereunder.
(3) In accordance with the terms of the Real Estate License Act
of the State of Texas, Buyer hereby acknowledges that Broker has advised
Buyer that Buyer should have an abstract covering the Land and the Property
examined by an attorney of Buyer's own selection or that Buyer should be
furnished with or obtain a policy of title insurance.
B. LIMITATION OF LIABILITY.
(1) Notwithstanding anything to the contrary contained herein,
if the closing of the transactions hereunder shall have occurred (and Buyer
shall not have waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller arising pursuant to
or in connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied) of Seller under
this Agreement (or any document executed or delivered in connection
herewith) shall not exceed $1,000,000.
(2) If the closing of the transactions hereunder shall have
occurred, then in no event shall either Seller or Buyer have any liability
pursuant to or in connection with the representations or warranties, under
this Agreement or the documents delivered at closing pursuant to the
provisions of paragraph 5 hereof) unless and until such liabilities shall
exceed $10,000 in the aggregate; provided, however, nothing contained in
the foregoing shall limit either party's liability for any proration
amounts provided for in paragraph 5D of this Agreement.
(3) No constituent partner or member in or manager or agent of
either Seller or Buyer, nor any advisor, trustee, director, officer,
employee, beneficiary, shareholder, participant, representative, manager or
agent of any corporation or trust that is or becomes a constituent partner
or member in Seller or Buyer (including, but not limited to, JMB Realty
Corporation and the individual(s) specified in paragraph 7A(2) above) shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or pursuant
to the provisions of this Agreement, or any amendment or amendments to any
of the foregoing made at any time or times, heretofore or hereafter, and
each party and its respective successors and assigns and, without
limitation, all other persons and entities, shall look solely to the other
party's assets for the payment of any claim or for any performance, and
each party, on behalf of itself and its successors and assigns, hereby
waives any and all such personal liability. Notwithstanding anything to
the contrary contained in this Agreement, neither the negative capital
account of any constituent partner or member in Seller or Buyer (or in any
other constituent partner or member of Seller or Buyer), nor any obligation
of any constituent partner or member in Seller or Buyer (or in any other
constituent partner or member of Seller or Buyer) to restore a negative
capital account or to contribute capital to Seller (or to any other
constituent partner or member of Seller or Buyer), shall at any time be
deemed to be the property or an asset of Seller or any such other
constituent partner or member (and neither any party nor any of its
respective successors or assigns shall have any right to collect, enforce
or proceed against or with respect to any such negative capital account of
partner's or member's obligation to restore or contribute). Nothing
contained in the foregoing shall limit Seller's right to receive the Escrow
Deposit in accordance with the terms and provisions of paragraph 9 hereof.
(4) Until the Survival Termination Date, Seller shall maintain
reserves of not less than $1,000,000 in cash or in reasonably liquid
investments; provided, however, nothing contained herein shall limit
Seller's obligations under applicable laws to maintain or cause to be
maintained adequate reserves thereafter if prior to the Survival
Termination Date, a claim is made by Buyer under this Agreement (and
litigation with respect thereto commenced within sixty (60) days
thereafter).
C. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters. This Agreement may not be modified or amended except by written
agreement signed by both parties.
D. TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
E. INTERPRETATION. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Texas.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however,
concurrently with closing Buyer may, with notice but otherwise without
requirement of Seller's consent, assign its interest in this Agreement to
(i) any subsidiary of TA Realty Corp., (ii) any entity on which TA Realty
Corp., TA Associates Realty or the principals thereof control the day to
day management decisions, or (iii) an entity for which TA Realty Corp. or
TA Associates Realty serves as an investment advisor. No consent given by
Seller to any transfer or assignment of Buyer's rights or obligations
hereunder shall be construed as a consent to any other transfer or
assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery or by mail (either [i] by United States registered or certified
mail, return receipt requested, postage prepaid, or [ii] by Federal Express
or similar generally recognized overnight carrier regularly providing proof
of delivery), addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
TO BUYER:
TA Realty Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Office (Gen): (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO:
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Office (Gen): (▇▇▇) ▇▇▇-▇▇▇▇
TO SELLER:
JMB/Warehouse Associates Limited Partnership
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Office (Gen): (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES TO:
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (GML)
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Office (Gen): (▇▇▇) ▇▇▇-▇▇▇▇
AND TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Office (Gen): (▇▇▇) ▇▇▇-▇▇▇▇
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given. Notices
may be given by telecopied transmission and shall be deemed given upon the
actual receipt of the same by the individual to which they are addressed,
and shall be promptly followed by a hard copy notice by mail as provided
above.
I. 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 this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
K. REPORTING PERSON. Seller and Buyer hereby designate Escrow
Holder as the Real Estate Reporting Person for purposes of Section 6045 of
the Internal Revenue Code; and Escrow Holder, by its execution below,
hereby accepts such appointment.
L. NONREFUNDABLE CONSIDERATION. Contemporaneously with the
execution and delivery of this Agreement, Buyer has delivered to Seller and
Seller hereby acknowledges the receipt of cash in the amount of $100.00
("INDEPENDENT CONTRACT CONSIDERATION"), which amount the parties bargained
for and agreed to as consideration for Buyer's right to inspect and
purchase the Property pursuant to this Agreement and for Seller's
execution, delivery and performance of this Agreement. The Independent
Contract Consideration is in addition to and independent of any other
consideration or payment provided in this Agreement, is nonrefundable, and
it is fully earned and shall be retained by Seller notwithstanding any
other provision of this Agreement.
M. AGREEMENT NOT TO MARKET. Seller agrees that, after the
execution of this Agreement and prior to termination hereunder, and so long
as Buyer is not in default hereunder, Seller shall take the Property off
the market and shall not solicit or accept any offers concerning the sale
of the Property other than the transaction contemplated herein.
N. WAIVER OF TRIAL BY JURY. The respective parties hereto
shall and they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other
(except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
O. CONFIDENTIALITY. Each of the parties acknowledge that the
financial terms of the transactions contemplated by this Agreement, and the
information respecting the Property and the other party, are to be held in
confidence by each such party; provided, however, each party may disclose
such terms and information to its legal counsel, agents, brokers,
accountants, clients, consultants, officers, partners, directors,
shareholders, members, managers and employees who reasonably need to know
the same (and each of whom shall be instructed to keep the same in
confidence). Nothing contained herein shall preclude or limit either party
from disclosing or accessing any information otherwise deemed confidential
hereunder in connection with such party's enforcement rights under this
Agreement or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings
required by Seller pursuant to applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
JMB/WAREHOUSE ASSOCIATES LIMITED PARTNERSHIP,
a Texas limited partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XVII,
an Illinois limited partnership,
General Partner
By: CARLYLE XVII MANAGERS, INC., an
Illinois corporation,
Corporate General Partner
By: ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
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"Seller"
OLYMPIA PROPERTIES, L.L.C.,
a Washington limited liability company
By: BARTWOOD L.L.C.,
a Massachusetts limited liability
company,
Managing Member
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
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The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Date: 01/16/97 a CHICAGO TITLE COMPANY,
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Escrow Officer
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"Escrow Holder"