EXHIBIT NO. 10.128
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
THE CONCORD PLAZA JOINT VENTURE, AS SELLER,
AND
CALI REALTY ACQUISITION CORP., AS BUYER
This Purchase and Sale Agreement (this "Agreement") is entered into as
of the Effective Date (hereinafter defined), by and between THE NEW CONCORD
PLAZA JOINT VENTURE (dba The Concord Plaza Joint Venture), a Texas joint venture
of which The New Plaza Corporation, a Delaware corporation, is Managing
Venturer, as Seller (herein "Seller"), and CALI REALTY ACQUISITION CORP., a
Delaware corporation, as Buyer (herein "Buyer").
In consideration of the mutual covenants and representations herein
contained, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Buyer agree as follows:
1. Sale and Purchase of Property. Seller hereby agrees to sell to Buyer, and
Buyer hereby agrees to purchase from Seller, upon the terms and conditions
herein set out, the following described real and personal property in San
Antonio, Bexar County, Texas (herein collectively the "Property"):
1.1. The following real property:
1.1.1.Lot ▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 16743, CENTRAL BUSINESS PARK,
UNIT 2, City of San Antonio, Bexar County, Texas, according to
plat recorded in Volume 9509, Page 42, Deed and Plat Records,
Bexar County, Texas;
1.1.2.Together with all right, title and interest of Seller in and to
(a) all streets, roads, alleys, easements, rights-of-way,
licenses, rights of ingress and egress, vehicle parking rights
and public places, existing or proposed, abutting, adjacent, used
in connection with or pertaining to the real property or the
Improvements (as hereinafter defined); (b) any strips or gores
between the Real Property and abutting or adjacent properties;
and (c) all water and water rights, timber, crops and mineral
interests pertaining to such real property (such real property
and other rights, titles and interests being hereinafter
sometimes called the "Real Property");
1.2. All buildings, structures and other improvements, including an eleven
(11) story office building commonly known as the ▇▇▇▇▇ ▇▇▇▇▇ Tower in
Concord Plaza (such buildings, structures and other improvements being
hereinafter sometimes called the
"Improvements") now or hereafter situated on the Real Property;
1.3. All fixtures, equipment, systems, machinery, furniture, furnishings,
inventory, goods, building and construction materials, supplies, of
every kind and character, now owned or hereafter acquired by Seller,
which are now or hereafter attached to or situated in, on or about the
Real Property or the Improvements, which are used in or necessary to
the complete and proper planning, development, use, occupancy or
operation thereof, or acquired (whether delivered to the Real Property
or stored elsewhere) for use or installation in or on the Real
Property or the Improvements, and all renewals and replacements of,
substitutions for and additions to the foregoing, including, but
without limiting the foregoing, any and all fixtures, equipment,
machinery, systems, facilities and apparatus for heating, ventilating,
air conditioning, refrigerating, plumbing, sewer, lighting,
generating, cleaning, storage, incinerating, waste disposal,
sprinkler, fire extinguishing, communications, elevators, security
alarm, gas, electrical, water, all tanks, pipes, wiring, conduits,
ducts, doors, partitions, fans, motors, engines and boilers; but
specifically excluding any office furniture, office supplies or office
computers or office equipment of Seller, whether or not used in the
operation of the Property, but which are not required for the
operation of the Property, or any files or records of Seller which are
unrelated to the operation or maintenance of the Improvements (all of
which, other than the immediately above specifically excluded items,
are herein sometimes referred to together, as the "Accessories");
1.4. All (a) plans and specifications, change orders, shop drawings,
manuals and other construction documents for the Improvements,
prepared by Seller's architect and/or civil engineer, and any other
engineering studies, which in each case, to the current actual
knowledge of Seller, are in the possession of or available to Seller
at no additional expense to Seller (but nothing herein creates any
obligation on the part of Seller to cause any such plans or studies to
be prepared) (the "Project Plans"), (b) engineering reports, soils
reports and environmental reports which in each case, to the current
actual knowledge of Seller, are in the possession of or available to
Seller at no additional expense to Seller (but nothing herein creates
any obligation on the part of Seller to cause any such plans or
studies to be prepared) (the "Project Studies"), (c) deposits for
utility service and accounts, contract rights, instruments, documents,
commitments (the "Contract Deposits"), (d) all right, title and
interest of Seller in any permits, licenses, franchises, certificates,
approvals and other rights and privileges obtained in connection with
the Real Property, the Improvements or the Accessories or any part
thereof (the "Permits") (but nothing herein creates any obligation on
the part of Seller to cause any such permits to be obtained), and (e)
Seller's rights in any service, maintenance, union, employment, or
other contracts, equipment leases or other material agreements
pertaining to the operations of the Property (the "Contracts"), if
assigned and assumed by Buyer at the Closing pursuant to the terms of
this Agreement;
1.5. Trademarks, Tradename, symbols and other marks and trade or business
names relating to
the ownership, use and/or management of the Property, to the extent of
Seller's interest therein, including the right to the use of the name
"Concord" only as "Concord Plaza" with respect to the Property or any
future expansion thereof, but not otherwise (the "General
Intangibles"), but such right to the use of the name "Concord Plaza"
is not exclusive and is also available for use with respect to the
development of the properties contiguous to the north and south
boundaries of the Property;
1.6. All right, title and interest of Seller in and to all lease and
occupancy agreements, written or oral, for any leased Property (the
"Leases" or "Lease Agreements"; tenants under any Leases are herein
"Tenant" or "Tenants");
1.7. All deposits from any Tenant, which deposits are currently held in
escrow at The Frost National Bank in San Antonio, Texas (the "Security
Deposit Escrow");
1.8. Any other personal property used in the operations of the Improvements
[but specifically not including any vehicles, cash or marketable
securities or funded reserve accounts of Seller, or any tax,
maintenance or improvement or other escrow of Seller other than the
Security Deposit Escrow] (the "Personal Property"); and
1.9. Any other properties, rights, titles and interests, if any, specified
in any Section or by any Article of this Agreement as being part of
the Property.
2. Effective Date. The Effective Date of this Agreement will be the date on
which a fully executed copy of this Agreement is delivered to the Title
Company.
3. Title Company. The Title Company shall be CHICAGO TITLE INSURANCE COMPANY,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in association with and assisted by Marathon Title Company.
4. ▇▇▇▇▇▇▇ Money.
4.1. Within three (3) business days after the Effective Date, the Buyer
will pay directly to Seller, in cash by wire transfer of immediately
available good funds, the amount of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00), as ▇▇▇▇▇▇▇ Money hereunder, which shall be
non-refundable and shall be deemed fully earned by Seller when
received by Seller, except as otherwise set forth herein (the "Initial
▇▇▇▇▇▇▇ Money Payment").
4.2. Prior to the expiration of Buyer's Examination Period (as provided in
Section 12, below), if Buyer fails to terminate this Agreement as
therein provided, Buyer will cause to be deposited with the Title
Company, in cash by wire transfer in immediately good funds, the
amount of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00), to secure Buyer's performance pursuant to the terms and
conditions of this Agreement (the "▇▇▇▇▇▇▇ Money Deposit"). The
Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money Deposit will be
held in interest bearing accounts at The Frost National Bank in San
Antonio, Texas, and the interest earned thereon will accrue to the
benefit of Buyer, and will be added to the Initial ▇▇▇▇▇▇▇ Money
Payment and the ▇▇▇▇▇▇▇ Money Deposit as earned. The ▇▇▇▇▇▇▇ Money
Deposit will be disbursed in accordance with the applicable provisions
of this Agreement.
5. Purchase Price.
5.1. The Purchase Price shall be THIRTY-FOUR MILLION AND NO/100 DOLLARS
($34,000,000.00).
5.2. The Purchase Price shall be paid to Seller all cash at Closing, by
wire transfer of immediately available good funds.
5.3. At the Closing, the amount of the Initial ▇▇▇▇▇▇▇ Money Payment will
be credited to the Purchase Price and the ▇▇▇▇▇▇▇ Money Deposit will
be applied to the Purchase Price.
6. Survey.
6.1. Within five (5) business days after the Effective Date hereof, Seller,
at its expense, will deliver to Buyer a current ALTA/ASCM survey of
the Property (dated within six (6) months of the Effective Date), in
such form and content as to permit the deletion of the "survey
exception" for all matters other than the area of the land from the
Owner's Title Policy (herein the "Survey").
6.2. The Survey shall be a new or recertified "as-built" survey, and will
be prepared and certified by ▇▇▇▇▇▇▇ & Associates, Inc. (herein the
"Civil Engineer"), who is registered in the State of Texas.
6.3. The cost of the deletion of the "survey exception" from the Owner's
Title Policy (that is, other than the cost of the Survey itself), if
requested by Buyer, shall be at Buyer's expense.
6.4. The Survey shall indicate: (a) a legend specifying the dates of any
and all revisions to the Survey, and the designations as necessary to
include all easements, and other like encumbrances of record, that
will be exceptions to title; (b) a sketch or map of the general
vicinity of the Property; (c) field notes; (d) a note explaining the
basis of the bearings used; (e) the "true point of beginning"; (f) (1)
the size, location and type of all buildings, and other visible
structures, other improvements and items on the subject Property; (2)
the distance from each such structure to the Property line, and (3)
the location and dimensions of all alleys, streets, roads,
rights-of-way, easements, curb cuts, driveways, walkways, and other
points of ingress and egress, and other matters of record affecting
the subject Property
according to the legal description and such easements and other
matters (with instrument book and page number indicated); (g) the
total number of parking spaces and number of handicap parking spaces
on the Property; (h) all visible manholes, catch basins, valve vaults
or other surface indications of substructures, pipelines, including
abandoned lines, roadways, footpaths, and other features that may
indicate usage by parties; (i) all wires and cables and all wire
bearing or guy poles on or within ten (10) feet of the Property; (j)
any setback lines of record; (k) visible intrusions or encroachments
on to the Property by building, structures, or other improvements on
adjoining premises; (l) visible intrusions or encroachments on any
easement, building setback line or other restricted area of record by
any buildings, structures or other improvements on the subject
Property; (m) the distance from the nearest intersecting street or
road; (n) the location and dimensions of, and the recording
information for, all easements and rights-of-way of record; (o) access
to all dedicated public streets or roads; (p) any portion of the
Property which is located within a Special Flood Hazard Area, Zone A,
as defined by the Flood Insurance Rate Map of the City of San Antonio,
Bexar County, Texas, on Community Panel No. 480045 0020 C, Revised:
August 2, 1990, and Flood Insurance Rate Map for Bexar County, Texas,
on Community Panel No. 480035 0350 B, Effective Date: October 16,
1984, as prepared by the Federal Emergency Management Agency; (q) the
Survey shall be made on the ground as per the field notes shown
thereon and correctly show the boundary lines and dimensions and area
of the land indicated thereon and each individual parcel thereof
indicated thereon; (r) the right-of-way with, center line and name of
all streets abutting the Property and whether each street is a public
or private way; and (s) monuments placed at all major corners of the
boundary of the Property, unless already marked.
6.5. The Survey shall contain a certificate specifically addressed to both
Buyer and the Title Company and, if requested by Buyer, any lender of
Buyer in conjunction with the sale contemplated herein, verifying (a)
this survey was made on the ground as per the field notes shown hereon
and correctly shows the boundary lines and dimensions and area of the
land indicated hereon and each individual parcel thereof indicated
hereon; (b) all monuments shown hereon actually exist, and the
location, size and type of such monuments are correctly shown; (c)
this survey correctly shows the size, location and type of all
buildings, and other visible structures, other improvements and items
on the subject Property; (d) this survey correctly shows the location
and dimensions of all alleys, streets, roads, rights-of-way,
easements, building setback lines and other matters of record
referenced in Commitment No. 44-905-80-974526, with an effective date
of October 31, 1997, of the Title Company or of which the Civil
Engineer has been advised or has current actual knowledge, affecting
the subject Property according to the legal description and such
easements and other matters (with instrument book and page number
indicated); (e) except as shown, there are no (1) visible
improvements, visible easements, rights-of-way, party walls, drainage
ditches, streams, uses, discrepancies or conflicts, (2) visible
intrusions or encroachments from the subject Property onto adjoining
premises, streets, or alleys by any of said buildings, structures, or
other improvements, (3) visible intrusions or encroachments onto the
subject
Property by building, structures, or other improvements on adjoining
premises, or (4) visible intrusions or encroachments on any easement,
building setback line or other restricted area of record by any
buildings, structures or other improvements on the subject Property;
(f) the distance from the nearest intersection street or road is as
shown hereon; (g) the subject Property was observed to have access to
a dedicated public street or road as shown hereon, accepted for
maintenance by the entity to which such street or road was dedicated;
(h) no portion of the subject Property is located within a Special
Flood Hazard Area, Zone A, 100 Year Flood Plain, as defined by the
Flood Insurance Rate Map for the City of San Antonio, Bexar County,
Texas, on Community Panel No. 480045 0020 C, Revised; August 2, 1990,
and Flood Insurance Rate Map for Bexar County, Texas on Community
Panel No. 480035 0350 B, Effective Date: October 16, 1984, as prepared
by the Federal Emergency Management Agency; (i) except as shown, all
utilities serving the Property enter through adjoining public streets
and/or easements of record; (j) the acreage of the Real Property; (k)
the total number or parking spaces and the number of handicap parking
spaces in the Property; and (l) that the Improvements are in
compliance with applicable FAA height restrictions
7. Title Commitment. Within five (5) business days after the Effective Date
hereof, Seller, at Seller's sole cost and expense, will cause the Title
Company to provide to Buyer a commitment for Title Insurance (the
"Commitment"). The Commitment will have attached legible copies of any and
all documents reflected therein affecting the Property (the "Title
Documents"). The Commitment shall guarantee to furnish Buyer at the Closing
a fully paid TLTA Owner's Title Insurance Policy covering the Property in
the aggregate face amount of the total Purchase Price, with no exceptions
other than the Permitted Exceptions (as defined below), (the "Title
Policy"). The Title Policy shall be at Seller's expense; but any additional
premium for deletion of the "survey exception", if requested by Buyer,
shall be at Buyer's expense.
8.
Title and Survey Objections.
8.1. Buyer shall have until 5:00 p.m. CST on the tenth (10th) business day
after delivery to Buyer of the Survey and Commitment, within which to
approve or disapprove all items, including the information reflected
therein, in the Commitment and the Survey (any such objections being
the "Title and Survey Objections"), such approvals or disapprovals to
be within Buyer's sole discretion (the "Title and Survey Objection
Period"). If Buyer fails to disapprove any such item by specific
written notice to Seller and the Title Company within the Title and
Survey Objection Period, Buyer shall be deemed to have approved such
item. Buyer is deemed to object to all matters listed on Schedule C of
the Commitment.
8.2. If and to the extent that the Commitment is updated for any reason,
then notwithstanding anything to the contrary contained in this
Section 8 (but subject to Section 8.5 with respect to any change after
expiration of Buyer's Examination Period), Buyer shall have three (3)
business days from its receipt of any update or continuation of the
Commitment and/or Survey to notify Seller of any objections to any
items not previously reflected in the Commitment or Survey, as the
case may be, and such item shall not be deemed to be a Permitted
Exception unless Buyer shall fail to disapprove of any such matter by
written notice to Seller and the Title Company within such three (3)
business day period.
8.3. Subject to Section 8.5 with respect to any change after expiration of
Buyer's Examination Period, any exceptions in the Commitment which are
not objected to by Buyer by the expiration of the Buyer's Examination
Period, or with respect to any updated Commitment, within three (3)
business days after Buyer's receipt of same, will be deemed to be
approved by Buyer and shall constitute the "Permitted Exceptions".
8.4. If Buyer provides Title and Survey Objections, Seller will use its
good faith and best efforts to expeditiously cure such Title and
Survey Objections by the Closing Date; provided, however, Seller shall
be obligated (a) to cause to be released, on or before the date of
Closing, any monetary liens or security interests created by, under or
through Seller (including without limitation, the mortgage payable to
The Frost National Bank), and ad valorem taxes due on the Property,
and (b) to cause to be released, on or before the date of Closing,
liens and security interests created by, under or through third
parties, but in no event will Seller be obligated to expend or incur
any expense or liability for such cure for liens or security interests
created by, through or under third parties in excess of a maximum
outlay in costs and expenditures of One Hundred Thousand and no/100
Dollars ($100,000.00). If Seller is otherwise unable to cure any one
or more of such Title and Survey Objections, such failure shall not be
an event of default by Seller, but in such event Seller shall notify
Buyer in writing of such Title and Survey Objections (the "First
Election Notice"), and request that Buyer waive Buyer's right to
terminate this Agreement due to such objection(s). Buyer shall
thereafter have five (5) business days after receipt of the First
Election Notice within which to waive its termination right or to
terminate this Agreement.
In the event Buyer fails to respond within such five (5) business day
period, Seller shall deliver a second notice (the "Second Election
Notice") specifying the Title and Survey Objection and stating that
Buyer failed to respond to the First Election Notice, and, Buyer will
be deemed to have waived and accepted the uncured and unsatisfied
Title and Survey Objections, which shall then become Permitted
Exceptions (hereinabove defined). If Buyer terminates this Agreement
under this Section 8, the Initial ▇▇▇▇▇▇▇ Money Payment, less One
Hundred Dollars ($100.00) to be retained by Seller as consideration
for this Agreement, and the ▇▇▇▇▇▇▇ Money Deposit will be refunded to
Buyer and the parties shall have no further obligations under this
Agreement except as to obligations which specifically are provided in
this Agreement to survive termination of this Agreement.
8.5. If and to the extent that there is any change in the Commitment or
Survey after expiration of Buyer's Examination Period, then in such
event only, Buyer will have until Closing to notify Seller of any
objections to any items not previously reflected in the Commitment or
Survey, as the case may be (the Supplemental Title and Survey
Objections"), and such item shall not be deemed to be a Permitted
Exception and Seller shall be obligated to cure such Supplemental
Title and Survey Objections or item in accordance with Section 8.4,
above. If Seller fails to cure or satisfy such Supplemental Title and
Survey Objections prior to Closing (other than as required by Seller
in Section 8.4, above), Buyer shall be entitled only to either (a)
waive such objections, in which event Buyer shall be deemed to have
accepted such uncured and unsatisfied objections (which shall become
Permitted Exceptions), or (b) terminate this Agreement by written
notice accordingly from Buyer to Seller at or prior to the Closing
Date, in which case the Initial ▇▇▇▇▇▇▇ Money Payment, less One
Hundred Dollars ($100.00) to be retained by Seller as consideration
for this Agreement, and the ▇▇▇▇▇▇▇ Money Deposit will be refunded to
Buyer and the parties shall have no further obligations under this
Agreement except as to obligations which specifically are provided in
this Agreement to survive termination of this Agreement.
9. Inspection Items. Seller, at its sole cost and expense, shall from and
after the Effective Date hereof deliver to Buyer, or otherwise make
available to Buyer, for its inspection and copying at Suite 303, 200
Concord Plaza, in San Antonio, Texas, at Buyer's expense, the following
(the "Inspection Items"), to the extent the same are in the possession of
Seller, and Seller makes no representations or warranties, written or oral,
express or implied, with respect to any Inspection Items, including, but
not limited to, the accuracy, adequacy or completeness of any such items,
except as specifically set out in Section 13, below:
9.1. Copies of all of the Project Plans (as defined in Section 1.4, above);
9.2. Copies of all Project Studies (as defined in Section 1.4, above);
9.3. Copies of all certificates of occupancy for the Property;
9.4. Copies of all certificates and/or other evidence of insurance insuring
the Improvements, and
furniture, fixtures and equipment therein, and Seller's operations on
the Property, and any written notice received by Seller as to any
insurance currently in force with respect to the Property, or any part
thereof, which notice indicates that such coverage is not or, with the
passage of time, may not be in full force and effect in any material
manner or amount (but not to include any insurance of any Tenant
insuring such Tenant's leasehold improvements unless a copy of such
insurance policy is in possession of Seller; or if such insurance is
otherwise available to Seller under any applicable lease, then upon
written request by Buyer to Seller, Seller will request the same from
any such tenant);
9.5. A current rent roll for the Property (the "Project Rent Roll"),
current as of September 30, 1997 (and updated as of October 31, 1997,
as soon as such information is available to Seller), which shall
contain the following information; provided, however, during Buyer's
Examination Period, Seller by written notice to Buyer may modify
and/or supplement the information provided in the Project Rent Roll or
attached thereto. Seller does hereby specifically certify, as being
true and correct in all material manner and amount, taken as a whole,
the following information provided in the Project Rent Roll: (1) Name
of Tenant; (2) Suite number; (3) Current Monthly Rent Rate; (4) Base
Year Operating Expense Provision; (5) Net Rentable Square Feet per the
Lease Agreement; (6) Commencement Date of Current Term of Lease
Agreement; (7) Expiration Date of Current Term of Lease Agreement; (8)
the existence of any option to extend in any Lease Agreement; (9) the
existence of any option to expand under any Lease Agreement; and (10)
options to terminate prior to expiration of the current term under any
Lease Agreement. Seller also certifies that, to the current actual
knowledge of Seller, all other information provided in the Project
Rent Roll is true and correct in all material manner and amount, taken
as a whole, but for such purposes only, all information contained in
any Lease, a copy of which is provided as an exhibit to the Project
Rent Roll, shall be deemed incorporated by reference into the Project
Rent Roll, and to the extent any such terms are inconsistent, the
terms of the Leases will control.
9.5.1. Tenant:
9.5.1.1. Name of Tenant; and
9.5.1.2. Whether such party is a party related to Seller; and
9.5.1.3.Whether such Tenant is indebted to Seller or to the
current actual knowledge of Seller, indebted to any
Affiliate of Seller (as that term is defined in Section
34, below); and
9.5.1.4.Identity of any individual or entity other than Tenant
who occupies any of the leased premises by sublease,
license, or otherwise.
9.5.2. Suite number;
9.5.3. Net Rentable Square Feet per the Lease Agreement;
9.5.4. Date of Lease Agreement:
9.5.4.1. The date of the Original Lease Agreement; and
9.5.4.2. The date of any amendments, or side letter or other
agreement amending any terms and provisions of any
such Lease Agreement;
9.5.5. Commencement Date of Current Term;
9.5.6. Current Term;
9.5.7. Expiration Date of Current Term;
9.5.8. Renewal Rights;
9.5.9. Purchase Options;
9.5.10. Rights of First Refusal;
9.5.11. Rights of Expansion;
9.5.12. Cancellation Option;
9.5.13. Current Monthly Rent (exclusive of any adjustments
for Basic Costs);
9.5.14. Base Year operating expense provision;
9.5.15. Security Deposit:
9.5.15.1. Amount; and
9.5.15.2. Amount thereof, if any, applied by Seller to
obligations of Tenant;
9.5.16. Past due rent more than 30 days past due;
9.5.17. Prepaid Rent;
9.5.18. Rent Reduction;
9.5.19. Rent Abatement;
9.5.20. Unfunded obligation for Leasehold Improvements;
9.5.21. Unfunded obligation for leasing commission; and
9.5.22. Separate Lease Guaranty (hereinafter defined);
9.5.23. Any specific written objection from Tenant to Seller of any
tax, operating cost or other escalation payments or occupancy
charges, or any other amounts payable under its Lease;
9.5.24. Entitlement to electricity or other utilities, either without
charge or on a rent-inclusion basis (that is, other than on a
basis generally available to all tenants in the Property);
9.5.25. Rights to membership in any facilities in the Property,
including without limitation, the Concord Athletic Club; and
9.5.26. Parking obligations and/or commitments to Tenant or any other
party.
9.6. Copies of all current lease agreements, including amendments thereto,
or subleases or assignments thereof, pertaining to any of the
Property, which shall accompany the Project Rent Roll (herein the
"Leases").
9.7. All current files pertaining to leasing the Property, located in the
possession and control of Seller (herein the "Tenant Files").
9.8. Copies of all real and personal property tax bills for the current and
past three years pertaining to the Property.
9.9. Copies of any and all licenses, permits, governmental or
quasi-governmental approvals, including all building permits and
certificates of occupancy, in Seller's files.
9.10.Copies of any construction warranties and guarantees still in effect,
if any, and all warranties and guarantees pertaining to building
systems, building components and/or personal property, in Seller's
files.
9.11.All service, maintenance, employment and management contracts, and
leasing commission agreements pertaining to the Property.
9.12.Copies of all documents related to any pending or threatened
litigation affecting the Property or Seller.
9.13.Copies of all notices from and responses to any governmental or
quasi-governmental authority relating to (i) any pending or threatened
condemnation of the Property or any part thereof, (ii) any release,
threatened release, storage, disposal or use of Hazardous Substances
(as hereinafter defined) at or around the Property, or (iii) any
written notice from any
governmental authority notifying Seller of a specific violation in the
Property of the Federal Americans with Disabilities Act, the Texas
Architectural Barriers Act, or any other material violations of any
zoning or building codes of the City of San Antonio or Bexar County .
9.14.All current files in the possession of Seller pertaining to the
maintenance and operation of the Property from January 1, 1993 to the
Effective Date hereof.
9.15.Copies of Seller's unaudited and internally prepared year end
financial statements for the Property for 1995 and 1996, and interim
financial statements for the nine (9) months ending September 30,1997.
10. Property Inspection.
10.1.During the Buyer's Examination Period, as defined below, but subject
to the rights of Tenants under the Leases, Buyer and its agents shall
have the right, at reasonable times and upon notice to Seller as
required in this Section 10.1, during normal business hours (and while
strictly adhering to the confidentiality and nondisclosure provisions
herein), to enter upon the Property and to conduct soil,
environmental, structural, mechanical and/or other studies or tests or
reviews, which Buyer deems advisable, at the expense of Buyer (the
"Property Inspection"). Buyer (i) shall not permit the Property
Inspection to be conducted in any manner that creates any materially
unsafe or hazardous condition on the Property, and (ii) shall not
permit the Property Inspection to be conducted in any manner that
unreasonably disturbs, interrupts, or interferes with any persons,
including, without limitation, Tenants or other occupants of the
Property, or their employees, customers or invitees. Buyer shall give
Seller written notice not less than two (2) business days prior to
conducting any test or inspection that physically affects the
Property, such as soil borings or internal examination of equipment or
components of improvements, if any. Buyer shall timely pay all fees
charged by Buyer's experts and shall not permit any claims to be made
against Seller or permit any liens to be created against the Property
by Buyer's experts. The entry upon the Property by Buyer, Buyer's
personnel and Buyer's experts shall be at their respective risks;
provided, however, nothing herein shall be deemed to release Seller
from any liability for its own negligence or willful misconduct. Buyer
shall have the right, upon not less than two (2) business days prior
written notice from Buyer to Seller specifically identifying the party
to be contacted and the information to be obtained, to contact third
parties regarding the Property, including without limitation, tenants,
contractors, property managers, parties to Contracts, and municipal,
local or other governmental officials and representatives.
10.2.Buyer shall not perform any test or inspection which will permanently
alter or damage the Property, and at the end of the Buyer's
Examination Period, Buyer shall at Buyer's sole cost and expense
restore and replace any part of the Property altered or damaged as a
result of the Property Inspection, to substantially the condition of
the Property prior to such studies. Any destructive or invasive
testing of the Property by Buyer or its
agents will be subject to the prior written approval of Seller, and
Seller will not unreasonably withhold or delay its consent to any such
testing if there is a reasonable basis to believe that such testing
may disclose a violation or possible violation of an applicable
Environmental Law (as hereinafter defined). If Seller withholds its
consent for any reason, Buyer may terminate this Agreement and in such
event receive a refund of the Initial ▇▇▇▇▇▇▇ Money Payment less
$100.00 as independent consideration to Seller, and the ▇▇▇▇▇▇▇ Money
Deposit and neither Seller nor Buyer will have any further liability
to or responsibility to the other hereunder other than as provided in
this Agreement to specifically survive termination of this Agreement.
10.3.During Buyer's Examination Period, Buyer will review all of the
Contracts provided by Seller to Buyer, and Buyer will determine to its
satisfaction whether and with what prior notice each such Contract is
terminable. Buyer will be responsible at Closing to provide any notice
of termination, and will otherwise be responsible to assume all
Contracts from and after Closing until terminated (1) which are
terminable upon thirty (30) days or less written notice or (2) with
The City Public Service Board of San Antonio or (3) with BFI. Buyer's
obligation to close this transaction is subject to the condition that,
as of the Closing, the Contracts to be assigned to Buyer shall be in
full force and effect, unmodified, and free from any default in any
material manner or amount. Buyer will not be obligated to assume any
Contract if Buyer did not receive a copy of that Contract during the
Buyer's Examination Period. In any event: (1) any property management
and leasing agreement must be terminated at Closing; and (2) Buyer
will not assume any of the agreements pertaining the Athletic Club
Renovations provided for in Section 21.8, below, and Seller shall
retain and perform those agreements. Seller will be responsible for,
and does indemnify Buyer against, any Contract which is not terminable
in 30 days or less, other than contracts with The City Public Service
Board of San Antonio and BFI. The provisions of this Section 10.3
shall survive the Closing.
10.4.SELLER SHALL NOT BE LIABLE TO BUYER, OR ANY OF BUYER'S PERSONNEL,
AGENTS OR EXPERTS FOR, AND BUYER AGREES TO RELEASE, INDEMNIFY, DEFEND
AND HOLD SELLER (AND ITS OFFICERS AND JOINT VENTURE PARTNERS, AND
THEIR RESPECTIVE OFFICERS, DIRECTORS AND SHAREHOLDERS) HARMLESS FROM
AND AGAINST ANY CLAIMS BY ANY PERSON FOR INJURY, DAMAGES OR LOSS TO
PERSONAL PROPERTY RESULTING FROM, INCIDENT TO, OR ARISING OUT OF THE
CONDUCT OF THE PROPERTY INSPECTION OR THE ENTRY UPON THE PROPERTY BY
BUYER, BUYER'S PERSONNEL, AGENTS OR EXPERTS, AND FROM ALL
OUT-OF-POCKET COSTS INCURRED BY SELLER TO DEFEND AGAINST ANY SUCH
CLAIMS, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES;
PROVIDED HOWEVER, THIS INDEMNITY SHALL NOT APPLY IF AND TO THE EXTENT
THAT SELLER'S NEGLIGENCE OR WILLFUL MISCONDUCT IS A CAUSE THEREOF.
10.5.BUYER IS ENCOURAGED TO CONDUCT AN INDEPENDENT INVESTIGATION AND
INSPECTION OF THE PROPERTY, UTILIZING SUCH EXPERTS AS BUYER DEEMS TO
BE NECESSARY FOR AN INDEPENDENT ASSESSMENT OF THE STRUCTURAL AND
OPERATIONAL INTEGRITY OF THE IMPROVEMENTS AND EQUIPMENT USED IN THE
OPERATION OF THE PROPERTY, AND COMPLIANCE OF THE PROPERTY (INCLUDING
SPECIFICALLY THE IMPROVEMENTS) WITH APPLICABLE LAWS, INCLUDING THE
FEDERAL AMERICANS WITH DISABILITIES ACT, THE TEXAS ARCHITECTURAL
BARRIERS ACT, AND/OR APPLICABLE ENVIRONMENTAL LAWS (AS HEREINAFTER
DEFINED).
10.6.For purposes of this Agreement, the term "Property Information"
means: the results and products of the Property Inspection, including,
without limitation all civil engineering, soil, environmental,
operational and feasibility inspections, tests and reports thereof of
the Property and all other information regarding the Property obtained
by Buyer, including but not limited to the Inspection Items, which
shall be deemed to be proprietary information belonging to Seller and
shall be confidential unless and until Buyer acquires the Property
hereunder, even if such information is obtained at Buyer's expense.
Prior to Closing, or if Closing shall not occur, then for twenty-four
(24) months after the Effective Date, Buyer shall not disclose,
without the prior written consent of the Seller, in its sole
discretion, any of the Property Information to any person other than
(i) Buyer's personnel, (ii) Buyer's experts, attorneys, accountants,
consultants, lenders and equity investors (who in each case shall also
be advised of this confidentiality covenant), (iii) any governmental
agency to which Buyer has an obligation to disclose such Property
Information, and if any governmental agency requires or requests
disclosure of such Property Information, then only if Buyer provides
to Seller written notice prior to such disclosure, (iv) other persons
who Buyer reasonably believes needs to know such information for one
or more of the purposes stated in the Agreement, and who, in each
case, shall be informed by Buyer about the confidential nature of the
Property Information, (v) by valid court order with prior written
notice to Seller of any such disclosure, or (vi) as may be required by
law or any stock exchange. In the event this Agreement does not close
for any reason, then, on or before twenty (20) days after the
termination of this Agreement, Buyer shall destroy and provide a
specific written representation to Seller of such destruction, or
deliver to Seller, all copies of any part of the Property Information
specifically provided to Buyer in writing by Seller or its agents and
Inspection Items in the possession of or under the control of any of
Buyer's personnel or Buyer's experts, and all reports and results of
all tests, inspections and studies, and all civil engineering plans
prepared by or at the instance of Buyer in connection with this
Agreement or relating to the Property, to the extent that they are in
the possession of Buyer or its agents.
10.7.Prior to the Effective Date hereof, Buyer's agent executed a Concord
Plaza Confidentiality Agreement. The terms of such agreement are
incorporated herein by
reference into this Section 10, and to the extent that the terms of
this Section 10 conflict with the terms of such agreement, the terms
of this Section 10 shall control.
10.8. The obligations under this Section 10 shall survive termination of
this Agreement.
11. Tenant Estoppel Certificates.
11.1.Promptly after the Effective Date, Seller shall request, in writing,
from each Tenant, and each any guarantor under any Lease Guaranty, an
Estoppel Certificate in a form reasonably requested by Buyer, which
shall be addressed to Buyer and shall be currently dated (collectively
the "Estoppel Certificates").
11.2.The current standard form of Lease provides the following with
respect to the obligation of a Tenant to, upon request, provide an
Estoppel Certificate:
"Tenant will, at any time and from time to time, within ten
(10) business days of its receipt of written request by
Landlord, at no cost or expense to Landlord, execute,
acknowledge, and deliver to Landlord an Estoppel Certificate
in such form as may be reasonably required by Landlord, such
Certificate to be executed by Tenant certifying: (i) that this
Lease is unmodified and in full effect if such is the case
(or, if there have been modifications, that this Lease is in
full effect as modified, and setting forth such modification),
(ii) the Commencement Date of the Lease, (iii) the Expiration
Date of the Lease, (iv) the dates to which the Rent has been
paid, and (v) either stating that to the knowledge of Tenant
no default exists hereunder or specifying each such default of
which Tenant may have knowledge and such other matters as may
be reasonably requested by Landlord; it being intended that
any such statement by Tenant may be relied upon by any
prospective purchaser or current or prospective mortgagee of
the Project (or the portion thereof which includes the
Premises)."
▇▇.▇.▇▇ the current actual knowledge of Seller, the Estoppel provision set
out in Section 11.2, above, is contained in all Leases without
material modifications.
11.4.During Buyer's Examination Period (defined below), Seller will use
its best efforts to secure from each Tenant a Tenant Estoppel
Certificate in form reasonably requested by Buyer; provided, however,
if and to the extent that the "Required Estoppels" (as hereinafter
defined) are not provided to Buyer by Closing, then Buyer shall be
entitled only to either (a) waive such requirement for the Required
Estoppels and proceed to Close, or (b) terminate this Agreement by
written notice accordingly from Buyer to Seller at or prior to the
Closing Date, in which case the Initial ▇▇▇▇▇▇▇ Money Payment, less
One Hundred Dollars ($100.00) to be retained by Seller as
consideration for this Agreement, and the ▇▇▇▇▇▇▇ Money Deposit will
be refunded to Buyer and the parties shall have no further obligations
under this Agreement except as to obligations which specifically are
provided
in this Agreement to survive termination of this Agreement.
11.4.1. For purposes of this Section 11.4, "Required Estoppels" shall
mean the delivery to Buyer of Estoppel Certificates which do not
disclose any facts objectionable to Buyer in its reasonable
opinion, which Certificates shall be in form reasonably required
by Buyer, from:
11.4.1.1. Major Tenants (as defined below); plus
11.4.1.2. Tenants, including Major Tenants, under Leases which,
collectively, apply to at least eighty percent (80%) of
the net rentable area in the Property.
11.4.2. For purposes of this Section 11.4, "Major Tenants" are:
11.4.2.1. PaineWebber Incorporated;
11.4.2.2. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇, Inc.;
11.4.2.3. ▇▇▇▇▇, Adami & ▇▇▇▇▇▇▇, Inc.;
11.4.2.4. Colorado Sports Club Venture, LLC;
11.4.2.5. Intercontinental National Bank;
11.4.2.6. Intercontinental Premises Holding Corporation;
11.4.2.7. Hearst-Argyle Television, Inc.;
11.4.2.8. Baptist Memorial Health Care System;
11.4.2.9. ▇▇▇▇▇-▇▇▇▇▇ Communications, Inc.;
11.4.2.10. Clear Channel Communications, Inc.; and
11.4.2.11. R. ▇▇▇▇▇, Inc. (▇▇▇▇'▇ ▇▇▇▇▇ Steak House).
12. Buyer's Examination Period.
12.1.Notwithstanding anything herein to the contrary, Buyer shall have
until 5:00 p.m. CDT on Tuesday, December 2, 1997 (the "Buyer's
Examination Period") in which to review the Commitment, Title
Documents, Inspection Items, the general condition of the Property,
and any other matters Buyer deems appropriate, and in which to
determine, in the Buyer's sole and absolute discretion, if the Buyer
shall elect to purchase the Property pursuant to this Agreement.
12.2.If Buyer notifies Seller and the Title Company in writing, prior to
the expiration of the Buyer's Examination Period, that Buyer elects to
terminate this Agreement for any reason whatsoever, then the Title
Company shall, without the necessity of securing Seller's consent,
immediately return to Buyer the ▇▇▇▇▇▇▇ Money Deposit, but there will
be no obligations to return the Initial ▇▇▇▇▇▇▇ Money Payments or the
interest earned thereon (except as otherwise specifically provided for
herein), and neither party hereto shall have any further liability to
the other hereunder except as otherwise provided in this Agreement to
specifically survive termination of this Agreement. If Buyer fails to
so advise Seller and the Title Company within the Buyer's Examination
Period that Buyer elects to terminate this Agreement, it is
conclusively presumed that Buyer elects to purchase the Property
pursuant to this Agreement, and the ▇▇▇▇▇▇▇ Money Deposit will become
non-refundable to Buyer except as otherwise specifically provided in
this Agreement.
13. Seller's Representations and Warranties. THE PROPERTY IS TO BE CONVEYED TO
BUYER "AS IS" IN ALL RESPECTS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES BY
SELLER, WRITTEN OR ORAL, EXPRESS OR IMPLIED, PERTAINING TO THE CONDITION,
OPERATION, USE OF THE PROPERTY, OR OTHERWISE, EXCEPT FOR THE LIMITED
REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS SECTION 13 AND EXCEPT FOR
THE SPECIFIC WARRANTIES OF TITLE AS ARE OTHERWISE PROVIDED IN THIS
AGREEMENT, WHICH REPRESENTATIONS AND WARRANTIES ARE PROVIDED AS OF THE
EFFECTIVE DATE HEREOF AND WHICH REPRESENTATIONS AND WARRANTIES WILL BE
DEEMED REPEATED ON AND AS OF THE CLOSING DATE:
13.1.Organization. Seller is a joint venture duly created and validly
existing pursuant to and in good standing under the laws of the State
of Texas, and each venture partner of Seller is an entity duly
organized and validly existing pursuant to and in good standing under
the laws of the State of Texas or the State of Delaware.
13.2.Authority. Seller has full power and authority to sell and convey the
Property and to enter into and perform (a) this Agreement and (b) all
documents and instruments to be executed by Seller pursuant to this
Agreement (collectively, "Seller's Ancillary Documents"). Prior to
Closing, Seller shall have taken all partnership and corporate actions
required for the consummation of the transactions contemplated by this
Agreement. This Agreement has been, and Seller's Ancillary Documents
will be, duly authorized, executed and delivered by a duly authorized
representative of Seller. This Agreement constitutes, and the Seller's
Ancillary Documents upon delivery will constitute, valid and legally
binding obligations of Seller, enforceable against Seller in
accordance with their terms (except to the extent that enforcement may
be affected by laws relating to bankruptcy, reorganization, insolvency
and creditors' rights and by the availability of injunctive relief,
specific performance and other equitable remedies). The person signing
and delivering this Agreement on behalf of Seller has been duly
authorized to do so. Neither the execution and
delivery of this Agreement and Seller's Ancillary Documents by Seller,
nor the consummation by Seller of the transaction herein and therein
contemplated, will conflict with or result in a breach of any of the
terms, conditions or provisions of Seller's Joint Venture Agreement
or, to the current actual knowledge of Seller, of any statute or
administrative regulation, or of any order, writ, injunction, judgment
or decree of any court or any governmental authority or of any
arbitration award. Seller owns legal and beneficial fee simple title
to the Property, which is to the current actual knowledge free and
clear of all liens and encumbrances except the Permitted Exceptions.
13.3.Required Consents. No consent, authorization, order or approval of,
or filing or registration with, any governmental authority or other
person is required for the execution and delivery by Seller of this
Agreement and Seller's Ancillary Documents and the consummation by
Seller of the transaction contemplated by this Agreement and Seller's
Ancillary Documents.
13.4.Litigation. No litigation proceedings or actions are pending with
respect to the Property or to which the Seller is a party (other than
a suit by Seller against the prior tenant in the restaurant for
eviction and attorneys fees which resulted in judgment [as yet
uncollected] in favor of Seller), and to the current actual knowledge
of Seller, no litigation claims, actions or proceeds are pending or
threatened against the Property or against Seller.
13.5.Use. Seller's current use of the Property is in accordance with
applicable zoning regulations, and the current use and occupancy of
the Property are in all material respects in accordance with
applicable deed restrictions, and other covenants and restrictions
affecting the Property.
13.6.
Condition of the Property.
13.6.1. To the current actual knowledge of Seller, there are no defects
in the Improvements and/or furniture, fixtures and equipment used
by Seller in the operation of the Property, which taken as a
whole would have a material adverse effect on the operations or
value of the Property (during Buyer's Examination Period, Seller
will disclose to Buyer, in writing, certain matters pertaining to
the Improvements and equipment which Seller does not consider
material; but when disclosed Buyer should make its own
determination as to whether it considers any such matter
material, in which case Buyer's remedy will be to terminate this
Agreement under Section 12.2, hereof); and
13.6.2. All water, storm, sanitary sewer, gas, electricity, telephone
and other utilities serving the Property are supplied directly to
the Property by facilities of public utilities through lands as
to which public or private easements exist that will inure to the
benefit of Buyer, and to the current actual knowledge of Seller
are adequate to service the current normal operations of the
Improvements, and the cost of installation of such utilities has
been fully paid.
13.7.Compliance with Applicable Laws. For purposes of this Agreement: (a)
"Applicable Law" means all laws, rules, regulations (other than
Environmental Laws, which are covered separately below) statutes,
treaties, codes, ordinances, permits, certificates, orders and
licenses of and interpretations by, any Governmental Authority in
effect as of the Effective Date hereof, and applicable judgments,
decrees, injunctions, writs, orders or like action of any court,
arbitrator or other administrative, judicial or quasi-judicial
tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the Environment (including, without
limitation, wetlands) in effect as of the Effective Date hereof, and
those pertaining to the construction, use or occupancy of the Property
in effect as of the date hereof, and any restrictive covenant or deed
restriction or easement of record as of the Effective Date hereof
affecting the Property; and (b) "Governmental Authority" means any
federal, state, county, municipal or other governmental or regulatory
authority, agency, board, body, commission, instrumentality, court or
quasi-Governmental Authority. To the current actual knowledge of
Seller, the use and operation of the Property are not in violation in
any material respect of any Applicable Laws; excepting only that
Seller makes no representation or warranties with respect to the
applicability of or compliance with the federal Americans with
Disabilities Act or the Texas Architectural Barriers Act and it will
be the responsibility of Buyer to satisfy itself with respect to the
compliance of the Property with respect to such laws.
13.8.Inspection Items. (i) Copies of any Inspection Items provided to or
made available to Buyer are true and correct copies of the originals
of each such instrument, and (ii) copies of the real property tax
bills for the Property that have been furnished by Seller to Buyer are
true and correct copies of all such tax bills.
13.9. Leases.
13.9.1. The Project Rent Roll and the Leases and the Lease Guaranties,
copies of which are attached thereto, when taken together,
represent all of the written and oral obligations of Seller, and
to the current actual knowledge of Seller, of any other party,
with respect to any leasing of any premises in the Property, and
there are no other agreements (written or oral) in the nature of
space leases, licenses, permits, franchises, concession or
occupancy agreements affecting the Property to which Seller is a
party (or to the current actual knowledge of Seller, with respect
to which Seller is not a party) affecting the Property in any
material manner or amount, and the Leases and the Lease
Guaranties are in full force and effect and binding in accordance
with their terms (except to the extent that enforcement may be
affected by laws relating to bankruptcy, reorganization,
insolvency and creditors' rights and by the availability of
injunctive relief, specific performance and other equitable
remedies).
13.9.2. Seller is not in default in any material manner or amount under
any Lease, and no event has occurred that, with the giving of
notice or passage of time or both would constitute a default in
any material manner or amount, and to the current actual
knowledge of Seller, no other party thereto is in default in any
material manner or amount under any Lease or Lease Guarantee, and
no event has occurred that, with the giving of notice or passage
of time or both would constitute a default in any material manner
or amount .
13.9.3. There are no pending claims asserted by Tenants or any
guarantor under any Lease Guaranty for offsets against rent or
any other claims (whether monetary or otherwise) made against
Seller, as Landlord, under any Lease or Lease Guaranty.
13.9.4. There are no fees or commissions payable (or will, with the
passage of time or occurrences of an event or both, be payable)
to any person or entity in regard to the leases by Seller except
as specifically set out in the Leases or Project Rent Roll or as
may be disclosed to Buyer in writing during Buyer's Examination
Period, and all such commissions due and payable to date have
been paid.
13.9.5. True and correct copies of all Leases and Lease Guaranties have
been delivered to Buyer as an exhibit to the Project Rent Roll,
and there are no other agreements, amendments, guaranties, side
letters or other documents, written or oral, which vary those
documents in any manner or amount which, taken as a whole, would
have a material adverse effect on the operation or value of the
Property.
13.9.6. Seller has no obligation, whether under any Lease or otherwise,
to contribute money or services to a tenants' association or
merchants' association, or to provide advice thereto.
13.10. Tenant Files. To the current actual knowledge of Seller, the Tenant
Files are all files of Seller pertaining to any current Lease.
13.11. Project Plans. Seller makes no representations or warranties as to
the accuracy or adequacy or completeness of the Project Plans,
excepting only that, to the current actual knowledge of Seller, the
Improvements, as built, do not differ from the Project Plans in any
material manner.
13.12. Project Studies. Seller makes no representations or warranties as to
the accuracy or adequacy or completeness of any Project Studies.
13.13. Ad Valorem Taxes. The property is not now, and will not as a result
of the conveyance of the Property from Seller to Buyer be, subject to
an agriculture use or open space exemption or roll back for ad valorem
taxes. There are no pending or, to the current actual knowledge of
Seller threatened, actions, suits, proceedings or claims involving the
Property. There are no challenges or appeals pending regarding the
amount of the taxes on, or the assessed valuation of, the Property,
and no arrangements or agreements exist with any governmental
authority with respect thereto. There is no assessment for ad valorem
taxes due (in addition to the normal annual general real estate tax
assessment) which is pending or, to the current actual knowledge of
Seller, threatened, with respect to any portion of the Property.
13.14. Non-Foreign Seller. Seller is not a foreign person as defined in
Section 1445 of the Internal Revenue Code.
13.15. Condemnation. There are no condemnation proceedings pending or, to
the current actual knowledge of Seller threatened, with respect to any
portion of the Property.
13.16. Contracts. Each of the Contracts is in full force and effect in all
material respects (except to the extent enforcement may be affected by
laws relating to bankruptcy, reorganization, insolvency and creditors'
rights and by the availability of injunctive relief, specific
performance and other equitable remedies); and Seller is not in
default thereunder in any manner or amount which, taken as a whole,
will have a material adverse effect on the operations or value of the
Property, and to the current actual knowledge of Seller, no other
party is in default in any manner or amount which, taken as a whole,
will have a material adverse effect on the operation or value of the
Property.
13.17. Employees. There are no employees of Seller, at the Property or
otherwise, who by reason of Federal, state, county, municipal or other
law, ordinance, order, requirement or regulation, or by reason of any
union or other employment contract, written or otherwise, or any other
reason whatsoever, would become employees of Buyer as a result of the
purchase of the Property by Buyer. None of the employees of Seller
located on the Property are covered by or employed under any union
contract.
13.18. Project Rent Roll. The information contained in the Project Rent
Roll, certified as provided in Section 9.5, above.
13.19. Permits. To the current actual knowledge of Seller:
13.19.1. All certificates of occupancy, licenses, certificates and
permits issued by any governmental or quasi-governmental agency
or authority or any board of fire underwriters or real estate
board or similar organization or institution, which are material
to the ownership and operations of the Property, have been
secured by Seller; and
13.19.2. The current use and occupation of any portion of the Property
does not violate any such certificates or permits or amendments
thereto required for the current use and operation of the
Property in any material manner; and
13.19.3. All such certificates and permits are in full force and
effect.
13.20. Insurance. To the current actual knowledge of Seller, all insurance
policies held by Seller relating to or affecting the Property are in
full force and effect and will be in full force and effect to the
Closing Date.
13.21. Liens. To the current actual knowledge of Seller, the only monetary
encumbrance against the Property is a mortgage in favor of The Frost
National Bank, which will be paid off at Closing, and no services,
material or work have been supplied to the Property for which payment
has not been made in full. If, subsequent to the Closing Date, any
mechanic's or other lien, charge or order for the payment of money
shall be filed against the Property or any portion thereof or against
Seller or Seller's assigns, based upon any act or omission, or alleged
act or omission before or after the Closing Date, of Seller, its
agents, servants or employees, or any contractor, subcontractor or
materialmen connected with the construction of improvements at the
Property, or repairs made to the Property under the direction or
authorization of Seller (that is, not individual Tenants) (whether or
not such lien, charge or order shall be valid or enforceable as such),
within ten (10) days after notice to Seller of the filing thereof,
Seller shall take such action, ), by bonding, deposit, payment or
otherwise, as will remove or satisfy such lien of record against the
Property.
13.22. Environmental Matters.
13.22.1. For purposes of this Agreement, the following terms shall have
the meanings set forth below:
13.22.1.1. "CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System database.
13.22.1.2. "Environment" means all air, surface water,
watercourse, body of water, or any land thereunder,
groundwater or land, including land surface or subsurface,
and including all persons, fish, wildlife, biota and all
other natural resources.
13.22.1.3. "Environmental Claims" means any and all litigation,
administrative or judicial actions, suits, orders, claims,
liens, notices, notices of violations, investigations,
complaints, requests for information, proceedings, or
other communication (written or oral), whether criminal or
civil (collectively, "Claims"), including without
limitation, administrative or judicial claims, pursuant to
or relating to any applicable Environmental Law or
Hazardous Materials by any entity or person (including but
not limited to any Governmental Authority or citizens'
group) based upon, alleging, asserting, or claiming any
actual or potential (a) violation of or liability under
any Environmental Law, (b) violation of any Environmental
Permit, or (c) liability for investigatory costs, cleanup
costs, removal costs, remedial costs, response costs,
natural resource damages, property damage, personal
injury, fines, or penalties or loss of the use of property
or diminution in value of property, arising out of, based
on, resulting from, or related to the presence, or Release
into the Environment, of any Hazardous Materials at the
Property or at any off-site location to which Hazardous
Materials or materials containing Hazardous Materials
originating from the Property were sent for handling,
storage, treatment or disposal.
13.22.1.4. "Environmental Cleanup Site" means any location which
is listed or proposed for listing on the National
Priorities List, on CERCLIS, or on any similar federal,
state or local list of sites requiring investigation or
cleanup, or which is the subject of any pending or
threatened action, suit, proceeding, or investigation
related to or arising from any alleged violation of any
Environmental Law or the presence of a Hazardous Material.
13.22.1.5. "Environmental Condition" means the presence or Release
of a Hazardous Material at, in, on, under, about, or
emanating from or migrating to or from the Property which
has or may result in or form the basis of an Environmental
Claim.
13.22.1.6. "Environmental Law" means any and all federal, state,
county, local, and foreign laws, statutes, ordinances,
orders, codes, rules, regulations, policies, guidance
documents, judgments, decrees, injunctions, or agreements
with any Governmental Authority, in effect as of the
Effective Date hereof and the Closing Date, as the case
may be, relating to the protection of health and the
Environment and/or governing the handling, use,
generation, treatment, storage, transportation, disposal,
manufacture, distribution, formulation, packaging,
labeling, or any Release of Hazardous Materials, including
but not limited to: the Clean Air Act, 42 U.S.C. ss.7401,
et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), as
amended, 42 U.S.C. ss.9601 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. ss.1251 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. ss.1801
et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. ss.136 et seq.; the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as
amended, 42 U.S.C. ss.6901 et seq.; the Toxic Substances
Control Act, 15 U.S.C. ss.2601 et seq., the Occupational
Safety and Health Act of 1970, 29 U.S.C. ss.651 et seq.;
the Oil Pollution Act of 1990, 33 U.S.C. ss.2701 et seq.;
and the state laws applicable thereto in effect as of the
Effective Date hereof, and the Closing Date, as the case
may be, together with all administrative regulations
promulgated under any of the foregoing, in effect as of
the Effective Date hereof, and the Closing Date, as the
case may be; and any common law doctrine, including but
not limited to, negligence, nuisance, trespass, personal
injury, or property damage related to or arising out of
the presence, Release, or exposure to a Hazardous
Material, in effect as of the Effective Date hereof, and
the Closing Date, as the case may be.
13.22.1.7. "Environmental Permit" means any federal, state,
county, or local license, certificate, permit or
authorization issued under or in connection with any
Environmental Law.
13.22.1.8. "Hazardous Material" means petroleum and petroleum
products and derivatives, petroleum by-products,
radioactive materials, asbestos, gasoline, diesel fuel,
radon, urea formaldehyde, lead-containing materials,
polychlorinated biphenyls, and any other material, gas or
substance known or suspected to be toxic or hazardous
which could cause a detriment to, or impair the beneficial
use of, the Property, or constitute a health, safety or
environmental risk to any occupancy of the Property, and
any other materials or substances defined as or included
in the definition of "hazardous substances," "hazardous
materials," "hazardous wastes," "contaminants" or
"pollutants" under any applicable Environmental Law, but
in no event to include any such materials used in the
Property in not significant quantities in the ordinary
course of business consistent with all Applicable Law in
all material respects.
13.22.1.9. "Release" means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
treating, injecting, escaping, leaching, dumping or
disposing of a Hazardous Material into the Environment on,
at, into, onto or migrating from or into the Property,
regardless of whether the result of any intentional or
unintentional action or omission .
13.22.1.10. "Remediation Work" means the remediation (including
without limitation, investigation and removal) work required
to remediate the Hazardous Materials in compliance with
Environmental Laws.
13.22.1.11. "Environmental Documents" shall mean all environmental
documentation in the possession or under the control of
Seller concerning the Property, or its environs, including
without limitation, all sampling plans, cleanup plans,
preliminary assessment plans and reports, site
investigation plans and reports, remedial investigation
plans and reports, remedial action plans and reports, or
the equivalent, sampling results, sampling result reports,
data, diagrams, charts, maps, analysis, conclusions,
quality assurance/quality control documentation,
correspondence to or from any Governmental Authority,
submissions to any Governmental Authority and directives,
orders, approvals and disapprovals issued by any
Governmental Authority.
13.22.1.12. "Governmental Authority" shall mean the federal,
state, county or municipal government, or any department,
agency, bureau or other similar type body obtaining
authority therefrom, or created pursuant to any law.
13.22.1.13. "Notice" shall mean, any written communication of any
nature, whether in the form of correspondence, memoranda,
order, directive or otherwise.
13.22.2. Seller represents and warrants to Buyer, the following:
13.22.2.1. With respect to the Property, to the current actual
knowledge of Seller, both Seller and the Property are in
compliance with all applicable Environmental Laws and
Environmental Permits, and no circumstances exist that
would prevent or interfere with such compliance by Buyer
following Closing, other than the necessity to install a
water refiltering tank and related drainage improvements
for the car wash, and the cost to complete the same will
be borne by Seller and, to the extent that has not been
completed by Closing, the cost to complete the same will
be escrowed by Seller at Closing.
13.22.2.2. To the current actual knowledge of Seller, Seller has
obtained all Environmental Permits required for the
ownership, occupancy and use of the Property, if any.
13.22.2.3. With respect to the Property, there are no past,
pending, or to the current actual knowledge of Seller
threatened, Environmental Claims against Seller, or
involving the Property, and Seller has no current actual
knowledge of any facts or circumstances which could
reasonably be expected to form the basis for any
Environmental Claim against Seller involving the Property.
13.22.2.4. To the current actual knowledge of Seller, no Hazardous
Materials are present, and no Releases of Hazardous
Materials have occurred at, from, in, on, under or to the
Property or any real property adjacent thereto by Seller
or any affiliates or by any other person, other than the
use of Hazardous Materials in
insignificant quantities in the operations of the Property
or by any Tenant in its operations within the Property in
compliance with Environmental Law.
13.22.2.5. To the current actual knowledge of Seller, neither the
Property nor any real estate adjacent thereto is an
Environmental Cleanup Site.
13.22.2.6. To the current actual knowledge of Seller, there are no
liens arising under or pursuant to any Environmental Law
on the Property and there are no facts, circumstances or
conditions that could reasonably be expected to result in
the imposition of such a lien.
13.22.2.7. There are no above-ground or, to the current actual
knowledge of Seller, under-ground storage tanks at the
Property or any real property adjacent thereto, other than
a restaurant grease trap, the water re-filtering tank for
the car wash to be installed, and other than a service
station located across the intersection from the Property.
13.22.2.8. To the current actual knowledge of Seller, the Property
has not been used as a transfer station, incinerator,
resource recovery facility, landfill (although portions of
the property may have been filled for development) or
other similar facility for receiving or treating, storing
or disposing of waste, garbage, refuse and other discarded
materials resulting from, without limitation, industrial,
commercial, agricultural, domestic and community
activities, including without limitation, sanitary,
hazardous, medical, special or other waste.
13.22.2.9. To the current actual knowledge of Seller, Seller has
provided to Buyer copies of, or access for inspection of,
all Environmental Documents relating to the physical
condition of the Property, in its possession or under its
control, and will in good faith use its best efforts to do
so after the execution of this Agreement until Closing,
promptly upon its receipt of the same.
13.23. Seller covenants to Buyer that, from the Effective Date hereof until
Closing, Seller shall promptly upon becoming aware of or receiving
Notice of any of the following conditions or occurrences, provide
Buyer with written notice thereof, including the details surrounding
the occurrence or condition and any action taken or proposed to be
taken by Seller in connection therewith: (a) any actual, pending or
threatened Environmental Claim against Seller, its general partners or
any affiliates or any other person or entity with respect to the
Property; (b) any Environmental Condition at the Property; (c) any
violation of Environmental Laws; or (d) any Release of Hazardous
Materials.
13.24. In the event that prior to Closing either Buyer or Seller discovers
the presence of any Hazardous Materials, at, in, on, under, about,
emanating from or affecting the Property, other than use of Hazardous
Materials used in insignificant quantities in the operations of
the Property or by any Tenant in its operations within the Property in
compliance with Environmental Law, the discovering party shall give
prompt written notice of such discovery, together with such additional
relevant information as is within the possession of the discovering
party, to the other party. If, prior to Closing, any such Hazardous
Materials are discovered at, in, on, under, about, emanating from or
affecting the Property or any violation of any Environmental Law is
discovered with respect to the Property, provided Seller has not
knowingly permitted or caused such Hazardous Materials at, in, on,
under, about, emanating from or affecting the Property, Seller shall
have no obligation to commence any Remediation Work, and Buyer's sole
remedy shall be termination of this Agreement, and return of the
Initial ▇▇▇▇▇▇▇ Money Payment, less One Hundred Dollars ($100.00) to
be retained by Seller as consideration for this Agreement, and the
▇▇▇▇▇▇▇ Money Deposit and the parties shall have no further
obligations under this Agreement other than as provided in this
Agreement to specifically survive termination of this Agreement. If
Seller has knowingly caused or permitted Hazardous Materials at, in,
on, under, about, emanating from or affecting the Property or if
Seller elects to perform Remediation Work pursuant to this Section,
Seller shall, at its own expense, be responsible for the Remediation
Work in a manner reasonably satisfactory to Buyer.
13.25. Independent Unit. Other than recorded easements, the Property is an
independent unit which does not now rely on any facilities (other than
facilities covered by easements appurtenant to the Property or
facilities or municipalities or public utilities) located on any
property that is not part of the Property to fulfill any municipal or
other governmental requirement, or for the furnishing to the Property
of any essential building systems or utilities (including drainage
facilities, catch basins, and retention ponds). Other than record
easements, no other building or other property that is not part of the
Property relies upon any part of the Property to fulfill any municipal
or other governmental requirement, or to provide any essential
building systems or utilities.
13.26. ERISA. Seller is not and is not acting on behalf of an "employee
benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, a "plan" within
the meaning of Section 4975 of the Internal Revenue Code of 1986, as
amended, or an entity deemed to hold "plan assets" within the meaning
of 29 C.F.R. ss.2510.3-101 of any such employee benefit plan or plans.
13.27. At the Closing, Seller will again provide the representations set
out in this Section 13, or Seller will indicate the extent to which
any such representations are no longer true and correct
13.28. If because of circumstances which occur after the Effective Date,
any representations provided in this Section 13 are in any material
respect different than the representations set out in this Section 13,
above, Seller will take such action, at a cost not to exceed One
Hundred Thousand and no/100 Dollars ($100,000.00), as will be required
to make such
representation true and correct.
13.29. If at the Closing the representations provided in this Section 13
are in any material respect different than the representations
provided in this Section 13 because of change of circumstances, and if
such change of circumstances are not a result of a knowing and
material breach of any representation of Seller under this Section 13,
then Buyer (as its only remedies) may either (a) waive any such change
in circumstances and such representations and warranties of Seller
shall be amended accordingly, or (b) elect to terminate this Agreement
and receive the return of the Initial ▇▇▇▇▇▇▇ Money Payment, less One
Hundred Dollars ($100.00) to be retained by Seller as consideration
for this Agreement, and the ▇▇▇▇▇▇▇ Money Deposit and neither Seller
nor Buyer will have any further liability or responsibility to the
other hereunder (other than as provided in this Agreement to
specifically survive termination of this Agreement).
13.30. If, at the Closing, any representation contained in this Section 13
is not accurate in any material respect for any reason other than
changed circumstances which are not a result of a knowing and material
breach of any representation of Seller (that is, other than as covered
by Section 13.29, above), Buyer will have the following options only:
(a) to waive such requirement and proceed with Closing in which case
Seller will be liable to reimburse Buyer for up to One Hundred
Thousand and no/100 Dollars ($100,000.00) (that is, including but not
in addition to the $100,000 provided above in this Section 13.28) or
(b) terminate this Agreement and receive the return of the Initial
▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money Deposit, together with all
other sums, if any, paid on account of this Agreement by Buyer to
unrelated third-parties, including, without limitation, all amounts
paid or incurred by Buyer, whether before or after the date of this
Agreement, in connection with its due diligence investigation of the
Property, and neither Seller nor Buyer will have any further liability
to or responsibility to the other hereunder other than as provided in
this Agreement to specifically survive termination of this Agreement;
but in no event will Seller be liable to Buyer for any other damages
(actual, consequential, speculative, punitive, or otherwise).
13.31. If at or before expiration of Buyer's Examination Period, Buyer
discovers any matter that would be a breach of a representation
contained in this Section 13, but for the fact that the representation
is limited to Seller's knowledge (excluding by reason of changed
circumstances which is not a result of a knowing and material breach
of any representation of Seller under this Section 13), then Buyer
will have the following options only: (a) to waive such requirement
and proceed with Closing or (b) terminate this Agreement and receive
the return of the Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money
Deposit and neither Seller nor Buyer will have any further liability
to or responsibility to the other hereunder other than as provided in
this Agreement to specifically survive termination of this Agreement.
13.32. Seller does hereby agree to indemnify and hold Buyer harmless from
any liability to
or claims by unrelated third-parties arising out of the existence of
any Hazardous Substances on the Property prior to Closing; and Buyer
does hereby agree to indemnify and hold Seller harmless from any
liability to or claims by any unrelated third-parties arising out of
the existence of any Hazardous Substances on the Property from and
after Closing which did not exist on the Property prior to Closing.
13.33. For purposes of any claim made against Seller by Buyer after Closing
for breach of Seller's representations and warranties, the
representations and warranties of Seller in this Section 13 are
qualified by any information with respect to which Buyer has current
actual knowledge at the Closing.
13.34. Notwithstanding anything in this Agreement to the contrary, the
representations and warranties under this Section 13 shall survive
Closing, but not beyond 12:00 p.m. (noon) CST on the 31st day of
December, 1998 (the "Claim Period"), and any such claim shall be
asserted by specific written notice from Buyer to Seller, setting out
the specific nature of such claim, which notice must be delivered to
Seller prior to the expiration of the Claim Period. Any claim for any
breach of any representation or warranty under this Section 13 shall
be limited to a claim for actual out-of-pocket damages incurred by
Buyer, and not for punitive, speculative, consequential or other
damages.
14. Buyer's Representations. Buyer represents and warrants to Seller that:
14.1.Organization and Existence. Buyer is a corporation, duly organized,
validly existing and in good standing under the laws of state of its
formation and prior to Closing will be properly qualified to do
business in the State of Texas and has all requisite power to enter
into and perform under the terms of this Agreement without any
qualification whatsoever.
14.2.Authority. The execution, delivery and performance by Buyer of this
Agreement has been duly authorized by directors or partners, as the
case may be, and no further action is necessary on the part of Buyer
to make this Agreement valid, binding and enforceable. Neither the
execution, delivery nor performance by Buyer of this Agreement will
conflict with or result in a violation of breach of any term or
provision of nor constitute a default under any of the organizational
or trust documents of Buyer.
14.3.Experienced Investor. Buyer has, to its satisfaction, examined the
general real property and market conditions in San Antonio, Bexar
County, Texas. Buyer is able to evaluate an investment in property in
San Antonio, Texas.
14.4.Litigation. There are no material claims, actions, suits, proceedings
or investigations pending, or to the current actual knowledge of
officers and directors or Buyer, threatened against Buyer which could
reasonably be expected to materially impair the ability of Buyer to
fulfill and perform its obligations under this Agreement.
14.5.Buyer's Examination Period. Buyer agrees and represents to Seller
that Buyer will conduct the Property Inspection and that the Buyer's
Examination Period is adequate for Buyer to conduct the Property
Inspection. Buyer represent and warrants that in making Buyer's
decision to purchase the Property, Buyer has relied solely upon and
shall rely solely upon the opinion and judgment of Buyer and Buyer's
experts; and that Buyer has not relied, and is not relying upon any
representations of Seller or any of Seller's agents or employees as to
the quality, nature, adequacy or condition of the Property for Buyer's
intended use or any other use, except as to those representations and
warranties of Seller provided in Section 13 of this Agreement and the
limited representations as to title provided by Seller in this
Agreement.
14.6.The representations and warranties provided by Buyer in this Section
14 shall survive Closing. Notwithstanding anything in this Agreement
to the contrary, the representations and warranties under Section
14.1, 14.2 and 14.4 shall survive Closing, but not beyond 12:00 p.m.
(noon) CST on the 31st day of December, 1998 (the "Claim Period"), and
any such claim shall be asserted by specific written notice from
Seller to Buyer, setting out the specific nature of such claim, which
notice must be delivered to Buyer prior to the expiration of the Claim
Period. Any claim for any breach of any representation or warranty
under this Section 14 shall be limited to a claim for actual
out-of-pocket damages incurred by Seller, and not for punitive,
speculative, consequential or other damages.
15. Closing. The purchase and sale of the property herein described shall be
closed on Wednesday, December 17, 1997, in the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, attorneys
for Seller (the "Closing" or "Closing Date"). Upon Closing, Seller, at
Seller's expense, shall deliver to Buyer or the Title Company, as the case
may be:
15.1.A Special Warranty Deed conveying good and indefeasible title in fee
simple to the Property, free and clear of any and all liens,
encumbrances, easements, assessments, restrictions, and other
conditions except for the following:
15.1.1. Taxes for the year of Closing and subsequent years not yet due
and payable.
15.1.2. The Permitted Exceptions.
15.1.3. The Deed shall contain the following provision: "By the
acceptance of this Deed, Grantee does hereby acknowledge that:
except for the warranties of title provided in this Special
Warranty Deed and except for the representations and warranties
of Grantor provided in Section 13 of that one certain Purchase
and Sale Agreement with an Effective Date of [DATE] wherein
Grantor is Seller and Grantee is Buyer for the Property (which
representations and warranties expire December 31, 1998), Grantee
takes the property in "AS IS" condition; Grantor has not made and
does not make any representations as to the physical condition,
layout, footage, expenses, zoning,
operation or any other matter affecting or related to the
Property; and Grantor makes no other warranties, express or
implied, of merchantability, marketability, fitness or
suitability for a particular purpose or otherwise except as set
forth and limited herein. Any implied warranties are expressly
disclaimed and excluded."
15.2.Title Policy. A form TLTA Owner's Title Policy of Insurance issued in
the face amount of the Purchase Price insuring legal, equitable and
indefeasible fee simple title to the Property, free and clear of all
restrictions, encumbrances, easements, and other matters of record,
except for the Permitted Exceptions, and all taxes for the year of
Closing and subsequent years.
15.3.Leases. Executed original counterparts of the Leases and Lease
Guaranties, as well as an assignment and assumption of each lease, in
form to be agreed upon by Seller and Buyer prior to expiration of
Buyer's Examination Period (the "Assignment and Assumption of
Leases").
15.4.▇▇▇▇ of Sale and Assignment. A ▇▇▇▇ of Sale and Assignment in the
form to be agreed upon by Seller and Buyer prior to expiration of
Buyer's Examination Period, conveying the Accessories, the Project
Plans, the Permits, Contracts (which Buyer agrees to assume in
accordance with this Agreement), the Contract Deposits, the Security
Deposit Escrow, General Intangibles and the Personal Property, and all
other personal property transferred hereunder and, except for the
representations otherwise provided herein, in an "As Is" condition
duly executed by and without recourse to Seller together with an
indemnity by Seller in favor of Buyer from and against any and all
claims, liabilities, damages and expenses (including reasonable
attorneys' fees) arising from any misapplication of the Security
Deposits prior to the Closing.
15.5.Non-Foreign Affidavit. An Affidavit of Seller certifying that Seller
is not a "foreign person" as defined in the Federal Foreign Investment
and Real Property Tax Act of 1980, and the 1984 Tax Reform Act, as
amended.
15.6.Warranties. The originals of all warranties from third parties
regarding the Property in the possession of Seller, without recourse
to Seller.
15.7.Evidence of Authority. (i) Copy of Seller's resolutions, certified as
true and complete as of the Closing date, authorizing Seller's selling
the Property pursuant to this Agreement, and evidencing the authority
of the person signing this Agreement and any documents to be executed
by Seller at Closing, (ii) Incumbency Certificate for each joint
venture partner of Seller, and (iii) good standing certificate for
each joint venture partner of Seller, issued by the State of Texas
dated within thirty (30) days of the Closing Date..
15.8.Estoppel Certificate. Estoppel Certificates as specified in Section
11.4 dated no earlier than forty-five (45) days prior to Closing which
have been executed by the respective
Tenant, to the extent Seller is able to obtain the same.
15.9. Plans and Specification. Complete sets of "to be built" plans and
specifications for the Improvements, if available.
15.10. Certification of Representations and Warranties. A certificate of
the Seller dated as of the Closing Date certifying that all of
Seller's representations and warranties set forth in this Agreement
remain true as of the Closing Date, or if not, specifying the respect
in which any such representation or warranty is no longer true, dated
as of the Closing Date and represented and certified by the Seller to
be true and correct in all material respects.
15.11. Tenant Notice. Notices to Tenant in the form to be provided by Buyer
and incorporated herein by reference, advising Tenants of the sale of
the Property to Buyer and directing that rents and other payments
thereafter be sent to Buyer or as Buyer may direct.
15.12. Contracts. A letter from Seller to the other party under each of the
Contracts assumed by Buyer, in form and substance reasonably
satisfactory to Buyer, notifying such other party of the change in
ownership of the Property and the assignment by Seller to Buyer of
such Contract; and evidence that Seller has terminated any management
agreement covering the Property and provided notice of termination or
otherwise terminated all Contracts that Buyer has not specifically
agreed to assume.
15.13. Project Rent Roll. A schedule showing any variations, as of the
Closing Date, in the Project Rent Roll, certified by Seller as
provided in Section 9.5, above.
15.14. UCC Search. A UCC search dated within five (5) days business days of
Closing, showing no security interests with respect to any of the
Property, other than as reflected in the Permitted Exceptions.
15.15. Other Documents. Such other documents and instruments as are
reasonably required by the Title Company in connection with the
issuance of its title insurance policy to Buyer or deemed necessary or
desirable by Buyer or its attorneys in order to effectuate the
transactions set forth in this Agreement, so long as any such document
or instrument will not, of itself, increase the cost to or liability
of Seller with respect to this Agreement and its performance
hereunder..
16. Buyer's Obligations at Closing. At the Closing, Buyer shall deliver to the
Title Company or to Seller, as the case may be, the following:
16.1. Purchase Price. The Purchase Price, adjusted by prorations as
provided for herein, by wire transfer of immediately available funds.
16.2. Evidence of Authority. Copy of Buyer's resolutions, certified as true
and complete
as of the Closing date, authorizing Buyer's acquisition of the
Property pursuant to this Agreement, and evidencing the authority of
the person signing this Agreement and any documents to be executed by
Buyer at Closing.
16.3. Assignment and Assumption of Leases. The Assignment and Assumption of
Leases evidencing the assumption of the obligation of Landlord under
the Leases.
16.4. Other Documents. Such other documents and instruments as are
reasonably required by the Title Company in connection with the
issuance of its title insurance policy to Buyer.
17. Proration.
17.1.The following shall be apportioned between Seller and Buyer at the
Closing as of midnight of the day preceding the Closing Date:
17.1.1. Prepaid rents and Additional Rents and other amounts payable by
Tenants, if, as and when received.
17.1.2. Real estate taxes, water charges, sewer rents and vault
charges, if any, on the basis of the fiscal years, respectively,
for which same have been assessed.
17.1.3. Charges and payments under transferable Contracts or permitted
renewals or replacements thereof, if assigned and assumed by
Buyer at the Closing.
17.1.4. Utilities, including, without limitation, water, steam,
electricity and gas, on the basis of (1) an actual reading done
on or immediately prior to the Closing Date or (2) the most
recent bills therefor. Notwithstanding the foregoing, the parties
shall endeavor to have the account name on each of the foregoing
utilities changed from Seller to Buyer as of the Closing Date, it
being understood that under no circumstances shall Buyer have any
liability for any such utility charges relating to any period
prior to the Closing Date, nor shall Seller have any liability
for any such utility charges from and after the Closing Date.
Buyer shall have no obligation or liability whatsoever with
regard to any security deposit of Seller maintained by any
utility company with regard to the Property.
17.2.If the Closing shall occur before a new real estate tax rate is
fixed, the apportionment of real estate taxes at the Closing shall be
upon the basis of the old tax rate for the preceding fiscal year
applied to the latest assessed valuation. Promptly after the new tax
rate is fixed, the apportionment of real estate taxes shall be
recomputed and any discrepancy resulting from such recomputation and
any errors or omissions in computing apportionments at Closing shall
be promptly corrected and the proper party reimbursed.
17.3. If, on the Closing Date, any Tenant is in arrears in the payment of
rent or has not paid
the rent payable by it for the month in which the Closing occurs
(whether or not it is in arrears for such month on the Closing Date),
any rents received by Buyer or Seller from such tenant after the
Closing shall be applied to amounts due and payable by such Tenant
during the following periods in the following order of priority: (A)
first to any month or months following the month in which the Closing
occurred, (B) second, to the month in which the Closing occurred, and
(C) third, to any month or months preceding the month in which the
Closing occurred. If rents or any portion thereof received by Seller
or Buyer after the Closing are due and payable to the other party by
reason of this allocation, the appropriate sum, less a proportionate
share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly
paid to the other party. After Closing, Seller will have no right to
▇▇▇ any Tenant for delinquent rent for any Lease.
17.4.If any Tenants are required to pay percentage rent, escalation
charges for real estate taxes, parking charges, operating expenses and
maintenance escalation rents or charges, cost-of-living increases or
other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Buyer, it shall promptly pay to
Seller it's proportionate share thereof, if and when the tenant paying
the same has made all payments of rent and Additional Rents then due
to Buyer pursuant to the tenant's Lease. If Seller has collected
estimates of Additional Rents in excess of a Tenant's proportionate
share allocable to the period prior to Closing, Buyer shall receive a
credit against the Purchase Price at Closing for any such excess.
17.5.Seller shall cooperate with Buyer in all respects in connection with
the collection of rents and Additional Rents, so long as Seller shall
incur no liability or significant expenses in doing so. In particular,
Seller shall for a period to not exceed thirty (30) days after
Closing, cooperate with Buyer in calculating Additional Rents and
▇▇▇▇▇▇▇▇ therefor.
17.6. The provisions of this Section 17.2 through 17.5 shall survive the
Closing.
17.7.If any of the items subject to apportionment under the foregoing
provisions of this Section 17 cannot be apportioned at the Closing
because of the unavailability of the information necessary to compute
such apportionment, or if any errors or omissions in computing
apportionments at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors and
omissions corrected as soon as practicable after the Closing Date and
the proper party reimbursed, which obligation shall survive the
Closing for a period of one hundred eighty (180) days after the
Closing Date as hereinafter provided. Neither party hereto shall have
the right to require a recomputation of a Closing apportionment or a
correction of an error or omission in a Closing apportionment unless
within the aforestated one hundred eighty (180) day period one of the
parties hereto (i) has obtained the previously unavailable information
or has discovered the error or omission, (ii) has given notice thereof
to the other party, together with a copy of its
good faith recomputation of the apportionment and copies of all
substantiating information used in such recomputation and (iii) such
recomputation or correction involves amounts which in the aggregate
exceed Five Thousand Dollars ($5,000). The failure of a party to
obtain any previously unavailable information or discover an error or
omission with respect to an item subject to apportionment hereunder
and to give notice thereof as provided above within one hundred eighty
(180) days after the Closing Date shall be deemed a waiver of its
right to cause a recomputation or a correction of an error or omission
with respect to such item after the Closing Date.
17.8.Buyer shall receive a credit on the Closing Date equal to all leasing
commissions due to leasing or other agents for the current remaining
term of each Lease (determined without regard to any unexercised
termination or cancellation right), discounted to present value using
reasonable discount rates. Buyer shall assume, in writing, the
obligation to pay any such leasing commissions due thereunder after
the Closing Date up to the amount of such credit (without discount).
Buyer shall promptly return to Seller any such commission (without
discount) that, due to later events, does not become due and payable.
At Closing, Buyer shall assume leasing commissions for renewals or
expansions under any Lease expressly identified in the Project Rent
Roll as a result of the exercise of such right after the Effective
Date of this Agreement. If by Closing Seller has not completed and
paid in full all tenant improvement expenses, tenant allowances,
moving expenses and other out-of-pocket costs which are the obligation
of Landlord under Leases ("TI Obligations"), other than for the
Athletic Club Tenant for which the provisions of Section 21.8 shall
apply, then such costs as reasonably agreed by Buyer and Seller shall
be withheld from the Purchase Price at Closing, placed in escrow with
the Title Company, and Buyer shall be responsible for completing and
paying such TI Obligations. Any funds held in the escrow shall be
released to Buyer without any requirement for the consent of Seller
and shall be used by Buyer to pay the Landlord's share of such tenant
improvement and allowances. If there are any funds remaining in escrow
after payment of such TI Obligations, such excess shall be paid to
Seller; but if the amount in escrow is insufficient for the purpose,
Seller shall reimburse Buyer for such deficiency on demand.
Notwithstanding the above, Buyer will be responsible for Commission
(not to exceed $11,616.00) and Leasehold Allowances (but not to exceed
$14,040.00) on the Fireman's Fund Lease Agreement.
18. Assessments. If, on the Closing Date, the Property or any part thereof
shall be affected by any assessment or assessments which are or may become
payable in installments, of which the first installment is now or at
Closing will be a charge or lien, or has been paid, then for the purposes
of this Agreement, all the unpaid installments of any such assessment
including those which are to become due and payable on or after the Closing
Date shall be deemed to be due and payable and be liens upon the Property
and the payment thereof shall be paid and discharged by Seller upon the
Closing.
19. Closing Costs. Notwithstanding anything to the contrary contained herein,
the Closing Costs
shall be paid as follows:
19.1. By Seller:
(a) Title insurance examination and premium; (b) Preparation of Special
Warranty Deed; (c) Revenue stamps or transfer tax, if any; (d) One-half
(1/2) the escrow fee, if any; (e) Brokerage fee as outlined in Section
26 herein; (f) The Survey; Seller's attorneys' fees; and Recording fees
with regard to releases of liens.
19.2. By Buyer:
(a) Preparation of Mortgage, Deed of Trust or other applicable
financing instruments; (b) Recording fees (except as provided in
Section 19.1(h), above); (c) One-half (1/2) the escrow fee, if any; (d)
Any additional engineering reports, environmental reports, appraisals,
or other
reports or studies required by Buyer;
(e) The survey deletion fee for Title Insurance purposes; and
(f) Buyer's attorneys' fees.
20. Default.
20.1.Default of Seller. In the event Seller is in default of its
obligations under this Agreement, Buyer, as its exclusive remedies,
shall be entitled to either (a) a refund of the full amount of the
Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money Deposit together
with all other sums, if any, paid on account of this Agreement by
Buyer to unrelated third-parties, including, without limitation, all
amounts paid or incurred by Buyer, whether before or after the date of
this Agreement, in connection with its due diligence investigation of
the Property, or (b) enforce specific performance of this Agreement;
provided, however, that any such action for specific performance shall
be initiated by Buyer, if at all, within sixty (60) days after that
date on which the sale of the Property was scheduled to close
hereunder and, if such action is not initiated within such 60-day
period, then Buyer shall be deemed conclusively to have elected to
waive the right to initiate such action for specific performance, in
which event, Buyer's sole remedy shall be to terminate this Agreement
and receive a refund of the Initial ▇▇▇▇▇▇▇ Money Payment and the
▇▇▇▇▇▇▇ Money Deposit together with all other sums, if any, paid on
account of this Agreement by Buyer to unrelated third-parties,
including, without limitation, all amounts paid or incurred by Buyer,
whether before or after the date of this Agreement, in connection with
its due diligence investigation of the Property; and provided,
further, Seller shall not be in default hereunder
unless and until Buyer shall provide written notice to Seller of the
basis for any such default and Seller has failed to cure such matter
within ten (10) days of its receipt of such notice; provided, further,
Buyer may not enforce specific performance against Seller if Seller is
unable to deliver the Property subject only to the Permitted
Exceptions (e.g., a third party places a cloud on title to the
Property which Seller cannot remove prior to Closing). In no event
shall Seller be liable to Buyer for any other actual, punitive,
speculative, consequential or other damages, excepting only in the
case of the inability of Seller to deliver the Property subject only
to the Permitted Exceptions is due to a willful and bad faith overt
act of Seller. No delay or omission in the exercise of any right or
remedy accruing to Buyer upon any default of Seller under this
Agreement shall impair any such right or remedy or be construed as
waiver of such default or any default theretofore or thereafter
occurring. The waiver by Buyer of any condition or event of default
shall not be deemed to be a waiver of any other condition or of any
prior or subsequent event of default.
20.2.Default of Buyer. Except as provided below, in the event of a default
hereunder by Buyer or if Buyer shall otherwise fail to perform any of
Buyer's obligations hereunder Seller may terminate this Agreement by
notice to Buyer and may retain the Initial ▇▇▇▇▇▇▇ Money Payment and
the ▇▇▇▇▇▇▇ Money Deposit as liquidated damages and this shall be
Seller's sole remedy for the Buyer's breach of this Agreement and
neither party shall have any further rights, obligations or
liabilities hereunder, except as otherwise provided herein; however,
Buyer shall not be in default hereunder unless and until Seller shall
provide written notice to Buyer of the basis for any such default and
Buyer has failed to cure such matter within ten (10) days of its
receipt of such notice. Seller and Buyer agree that it is difficult to
determine, with any degree of certainty, the loss which Seller would
incur in the event of Buyer's failure to close the purchase of the
Property, and the parties have agreed that the amount of the ▇▇▇▇▇▇▇
Money Deposit represents a reasonable estimate of such loss and is
intended as a liquidated damages provision. No delay or omission in
the exercise of any right or remedy accruing to Seller upon any
default of Buyer under this Agreement shall impair such right or
remedy or be construed as a waiver of such default or any default
theretofore or thereafter occurring. The waiver by Seller of any
condition or event of default shall not be deemed to be a waiver of
any other condition or of any prior or subsequent event of default.
21. Future Operations. From the date of this Agreement until the Closing or
earlier termination of this Agreement, Seller will:
21.1.Maintenance and Operation of Property. Keep, operate and maintain the
Property in substantially the same condition and manner as the
Property is now maintained and operated by Seller and perform all
obligations on the part of landlord to be performed under the Lease.
21.2. Litigation and Claims. Promptly advise Buyer of any actual or
threatened litigation,
arbitration, administrative hearing or claim (of any material matter
or amount) concerning the Property for which Seller has current actual
knowledge, or if Seller determines that any representation or warranty
made by Seller in Section 13 hereof is incorrect in any material
manner or amount.
21.3. Insurance. Maintain (or cause the maintenance of) all liability,
property and casualty or other insurance which Seller currently has in
force with respect to the Property.
▇▇.▇.▇▇ Change in Title. Not enter into or acquiesce in the filing of any
easement, license, plat (or replat) or zoning charge affecting the
Property, except as provided in Section 21.9, below, without the prior
written consent of Buyer in its sole discretion.
21.5. No Encumbrance. Not transfer or encumber or permit any lien to be
placed against all or any portion of the Property.
▇▇.▇.▇▇ Sale. Neither Seller nor any of its affiliates shall negotiate,
discuss or enter into any agreement with any third party regarding the
transfer, sale or conveyance of all or any portion of the Property.
21.7.Leasing. (i) Not modify any existing Lease or enter into any new
Lease in any manner without the prior written consent of Buyer, and
Buyer will not unreasonably withhold or delay its consent for any
modification to any existing lease or for Seller to enter into any new
Lease which is with an individual or entity unrelated (directly or
indirectly) to Seller and/or its joint venture partners and which is
in the ordinary course of business of the Property consistent with
past business practices in the operation of the Property, and any such
consent will be deemed given if specific written objection is not
provided by Buyer to Seller within five (5) business days after Buyer
receives written notice of such amendment or new lease, with the
proposed lease amendment or new agreement attached to such notice; and
(ii) promptly deliver to Buyer a copy of any notice (including,
without limitation, a notice of default under any Lease, and promptly
cure any such default; provided, however, from and after expiration of
Buyer's Examination Period, Buyer may withhold its consent in its sole
discretion.
21.8.Athletic Club Renovations. Pursuant to the Lease for the Athletic
Club, the Athletic Club Tenant and Seller have entered into certain
agreements for refurbishment/renovations which are being made to the
Athletic Club, the cost of which are to be borne equally by Seller, as
Landlord, and such Tenant. At Closing, Seller will escrow with the
Title Company, under escrow instructions to be agreed upon between
Seller and Buyer during Buyer's Examination Period, any then remaining
obligation of Seller and Tenant for the costs of such improvements
plus any additional sums reasonably projected to complete such
refurbishment/renovations; however if the escrowed amount is
insufficient to complete such refurbishment/renovations, Seller will
remain liable for any deficiency. Seller will, until completion,
continue such improvements pursuant to such agreements with such
changes
as Seller in its discretion shall deem appropriate, but Seller will
notify Buyer in writing of any material change in such planned
improvements, and any such material change after expiration of the
Buyer's Examination Period will require the prior written consent of
Buyer, which consent Buyer will not unreasonably withhold or delay,
and such consent will be deemed provided if written objection is not
provided by Buyer to Seller within five (5) business days after Seller
notifies Buyer in writing of the specific nature of the change
requested.
21.9.Described Easements. Seller is in the process of negotiating (i) an
easement to provide the owner of the tract contiguous to and south of
the Property (who is an affiliate of Seller) access to the utility
easements located within the entry drive of Concord Plaza so long as
any such access is at the sole cost of such owner and has no material
adverse effect on the capacity of any utilities provided to the
Property and (ii) acquisition of the parking area on the north side of
the Property, which is currently owned by an affiliate of Seller and
provided to Seller by easement. Both such transactions will be
completed at or before Closing at the expense of Seller. If the
transaction described in clause (ii) has not been completed at or
before Closing, Buyer may terminate this Agreement and receive a
return of the Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money
Deposit, and neither party shall have any further liability to the
other hereunder other than the obligations which specifically survive
termination as provided in this Agreement.
21.10. Claims. Promptly deliver notice to Buyer of, and, if the same may
adversely affect the Buyer or the Property, defend at the Seller's
expense, all actions, suits, claims and other proceedings affecting
the Property, or the use, possession or occupancy thereof;
21.11. Condemnation. Promptly deliver notice to Buyer of any actual or
threatened condemnation of the Property or any portion thereof;
21.12. Permits. Maintain all Permits in full force and effect and promptly
deliver notice to Buyer of any intention of the Seller to seek any new
Permit;
21.13. Contracts. Maintain all Contracts in full force and effect, timely
make all payments and observe and perform all obligations to be paid,
observed or performed by the Seller thereunder, and promptly notify
the Buyer of any receipt or delivery of any notice (including any
notice of default) thereunder, and not modify, amend, renew, extend,
terminate or otherwise alter any Contracts nor enter into any new
maintenance service contracts or any other agreements affecting the
Property without the prior written consent of Buyer in each instance,
which consent will not be unreasonably withheld or delayed; provided,
however, Buyer may withhold its consent in its sole discretion for any
such Contract which cannot be terminable on thirty (30) days notice or
less.
21.14. Repairs. Provide all services, repairs and other work required to be
provided by the landlord under the Leases;
21.15. Personal Property. Seller will not remove from the Property any
Personal Property (as defined in Section 1.8, above) of any material
value or which is material to the operations of the Property unless it
is replaced with a comparable item of equal quality and quantity as
existed as of the time of such removal; and
21.16. Security Deposits. Not apply any of the Security Deposits, whether
to a default of a Tenant or otherwise without the prior written
consent of Buyer which consent shall not be unreasonably withheld or
delayed.
22. Casualty. The risk of loss or damage to the Property by fire or other
casualty shall, until Closing, be borne by Seller. After Closing, the risk
of any loss or damage to the Property by fire or other casualty shall be
borne by Buyer. Seller shall promptly give Buyer written notice if all or
any portion of the Property is damaged or destroyed by fire or other
casualty and the extent thereof. For purposes of this Section 22, "Material
Casualty" shall be any casualty resulting in damage to the Property of
Twenty-Five Thousand and No/100 Dollars ($25,000.00) or more or any
casualty which can be the basis for any Tenant to terminate any Lease or
Leases which, individually or in the aggregate, is for more than five
thousand (5,000) square feet of net rentable area in each case as
reasonably estimated by Buyer. In the event of a Material Casualty, Buyer
may, by written notice to Seller within ten (10) days after receipt of
notice of the occurrence of such Material Casualty, elect to cancel this
Agreement. In the event either party shall so elect, the Initial ▇▇▇▇▇▇▇
Money Payment and ▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer and,
upon such return of the Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money
Deposit, both parties shall be relieved and released of and from any
further liability hereunder, except as otherwise provided in this
Agreement. In the event of a Material Casualty, if this Agreement is not so
cancelled by Buyer, or if there is a non-material casualty, this Agreement
shall not be affected, but Seller shall assign to Buyer all of Seller's
right, title and interest in any insurance proceeds and claims, and the
Purchase Price shall be reduced by the amount of any applicable insurance
policy deductible.
23. Disclaimer Regarding Representations and Warranties of Seller. EXCEPT FOR
THE WARRANTIES OF TITLE CONTAINED IN THE DEED AND THE LIMITED EXPRESS
WRITTEN REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN SECTION 13
HEREOF, BUYER ACCEPTS THE PROPERTY "AS IS" AND "WHERE IS", WITH ALL FAULTS,
AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER SELLER
NOR ANY OF SELLER'S EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES OR
AGENTS (COLLECTIVELY THE "SELLER RELATED PARTIES") HAVE MADE OR GIVEN ANY
WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND WHATSOEVER,
REGARDING ANY MATTER RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER
ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, BUYER
AGREES THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF HABITABILITY,
MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE AND THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS REGARDING THE PRESENT OR FUTURE VALUE, PROFITABILITY,
PERFORMANCE OR PRODUCTIVITY OF THE PROPERTY, OR REGARDING THE PAST OR
PRESENT COMPLIANCE BY SELLER OF ENVIRONMENTAL LAWS.
24. Condemnation. If, prior to Closing, all or any portion of the Property is
condemned or taken by eminent domain by any authority (a "Condemnation"),
Seller shall promptly notify Buyer thereof, and Buyer may terminate this
Agreement by giving written notice thereof to Seller prior to the Closing
Date, in which event the Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇
Money Deposit shall be returned to Buyer and, upon the return of such
Initial ▇▇▇▇▇▇▇ Money Payment and the ▇▇▇▇▇▇▇ Money Deposit, both parties
shall be relieved and released of and from any further liability hereunder,
except as otherwise provided in this Agreement. If Buyer does not elect to
terminate this Agreement as a result of a Condemnation, Seller shall pay to
Buyer, at Closing, all awards or other proceeds for such Condemnation
collected by Seller and assign and transfer to Buyer all of Seller's right,
title and interest in and to any claims for uncollected awards and other
proceeds for such Condemnation which Seller may be entitled to receive. At
Buyer's request, from and after the Closing, Seller shall cooperate with
Buyer in the settlement of any condemnation claims pursued by Buyer.
25. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be sent by either confirmed
receipt by facsimiles or mailed by certified and/or registered mail, return
receipt requested, postage prepaid, or personally delivered, or delivered
by a national overnight carrier, addressed or faxed as follows:
SELLER: The New Concord Plaza Joint Venture
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy To: Mr. J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BUYER: Patriot American Acquisition Corp.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President-Acquisitions
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Cali Realty Corp.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
2300 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such changed address or facsimile number as a party hereto shall
designate to the other party hereto from time to time in writing. Notices
shall be deemed delivered (i) if personally delivered or delivered by
overnight carrier, on the date of delivery or first business day thereafter
if delivered other than on a business day or after 5:00 p.m. CST to said
offices; (ii) if sent by certified mail, return receipt requested, on the
date shown on the receipt unless delivery is refused or delayed by the
addressee in which event they shall be deemed delivered on the date of
deposit in the U.S. Mail; or (iii) if sent by means of a facsimile
transmittal machine, at the time and on the date of receipt with receipt
thereof confirmed by telephonic acknowledgement or first business day
thereafter if receipt other than on a business day or after 5:00 p.m. CST.
26. Real Estate Commission. If, as and when this transaction closes, and the
full Purchase Price has been paid to Seller, then Seller will pay a
commission to Corporate Realty, Inc. arising out of the transaction
contemplated by this Agreement per a separate agreement between Seller and
Corporate Realty, Inc. (the "Broker"). Seller hereby indemnifies and holds
Buyer harmless from any and all real estate commissions, claims for such
commissions or similar fees on this transaction arising in any manner out
of any commitment or promise or agreement made by Seller. Buyer hereby
indemnifies and holds Seller harmless from any and all real estate
commissions, claims for such commissions or similar fees on this
transaction arising in any manner out of any commitment or promise or
agreement made by
Buyer. In accordance with the terms of the Real Estate License Act of
Texas, Buyer is hereby advised by the Broker that Buyer should have the
abstract covering the Property examined by an attorney of Buyer's
selection, or be furnished with or obtain a policy of title insurance.
27. Information and Audit Cooperation. At Buyer's request, at any time before
Closing, and within one (1) year after Closing, Seller will provide to
Buyer's designated independent auditor access to those books and records of
the Property which are in Seller's possession and not provided to Buyer at
Closing, and Seller shall provide to such auditor a representation letter
regarding the books and records of the Property, in substantially the form
of Exhibit "A", attached hereto and incorporated herein by reference, in
connection with the normal course of auditing the Property in accordance
with generally accepted auditing standards.
28. Further Assurances. In addition to the acts and deeds recited herein and
contemplated to be performed, executed and/or delivered by either party at
Closing, each party agrees to perform, execute and deliver, on or after
Closing, any further actions or documents, and will obtain such consents,
as may reasonably necessary or as may be reasonably requested to fully
effectuate the purposes, terms and conditions of this Agreement, or to
further perfect the conveyance, transfer and assignments of the Property to
Buyer, so long as this will not in any material manner or amount increase
the cost to such party to perform hereunder or the financial obligations of
such party hereunder.
29. Assignment. At or prior to Closing, Buyer may assign its rights as buyer
hereunder to (i) any Affiliate of Buyer, or (ii) upon the prior written
consent of Seller in its sole discretion. Any assignee will be deemed to
have been provided all of the information provided to Buyer under this
Agreement.
30. Control of Adjacent Properties. Seller has advised Buyer that an Affiliate
of one of the joint venture partners of Seller owns the tracts immediately
to the north and south of the Project (herein the "Adjacent Properties").
Except as otherwise provided in Section 21.9, this Agreement shall not in
any manner be subject to any agreements which may or may not be made
between Buyer and the Owners of the Adjacent Properties and this Agreement
shall not result in any restrictions, directly or indirectly, with respect
to any other properties which may be owned by any joint venture partner of
Seller or their respective Affiliates.
31. Entire Agreement. This written Agreement constitutes the entire and
complete agreement between the parties hereto with respect to the Property.
It is expressly understood that there are no verbal understandings or
agreements which may change the terms, covenants and conditions herein set
forth, and that no modification of this Agreement and no waiver of any of
the terms and conditions shall be effective unless made in writing and duly
executed by the parties hereto.
32. Binding Effect. All covenants, agreements, warranties and provisions of
this Agreement shall be binding upon and inure to the parties hereto
and their respective successors and assigns.
33. Current Actual Knowledge. Any representation or warranty limited herein
to "current actual knowledge" shall be deemed to mean the actual
knowledge of Seller, its joint venturers, their respective employees,
the property manager of the Property, and its employees, with no duty
for any independent inquiry with respect to the matters which are the
subject of such representation or warranty.
34. Affiliate. For purposes of this Agreement, an "Affiliate" is any person
which, directly or indirectly, controls, is controlled by, or is under
common control with, such person.
35. Indemnified Claim. Upon the occurrence of any expense or liability or
third-party claim for which indemnification is provided pursuant to this
Agreement (the "Indemnified Claim"), when the party to be indemnified (the
"Indemnified Party") has actual knowledge of such claim or facts reasonably
expected to lead to any such claim, it shall provide written notice (the
"Notice of Claim") to the party required to provide such indemnification
(the "Indemnifying Party"), setting out the nature of the Indemnified
Claim, including the facts which gave rise or are expected to give rise to
such claim. The Indemnifying Party shall have the right to control the
defense of such Claim, which it shall do at its expense with counsel
subject to the approval of the Indemnified Party, which approval will not
be unreasonably withheld or delayed; but the Indemnified Party shall have
the right to participate in the defense thereof and be represented, at its
own expense, by advisory counsel selected by it, and in such case the
counsel selected by the Indemnifying Party and responsible for the defense
of such claim shall consult with and cooperate with such advisory counsel
of the Indemnified Party. The Indemnifying Party shall provide to the
Indemnified Party, or its advisory counsel, if any, copies of all
third-party correspondence and pleadings pertaining to the resolution of
such claim, and will provide prior written notice to the Indemnified Party
of any resolution or settlement of any such claim, and the Indemnified
Party shall have the right to approve any such resolution or settlement
only if such resolution or settlement is likely to have a material adverse
effect upon the Indemnified Party (e.g., potential further liability to the
Indemnified Party which may not be covered by the Indemnifying Party), in
which case such approval is required but may not be unreasonably withheld
or delayed.
36. Attorneys' Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
37. Controlling Law. This Agreement has been made and entered into under the
laws of the State of Texas, and said laws shall control the interpretation
thereof.
38. Counterparts. This Agreement may be executed in as many counterparts as may
be
required and it shall be sufficient that the signature of each party appear
on one or more such counterparts. All counterparts shall collectively
constitute a singular agreement.
39. Seller's Escrow. At Closing, Seller will place in escrow Five Hundred
Thousand and No/100 Dollars ($500,000.00), with such escrow agent and on
such terms, as shall be agreed upon by Buyer and Seller during Buyer's
Examination Period, to secure Seller's obligations hereunder, which Escrow
shall terminate on the expiration of the Claim Period (as defined in
Section 13.34) unless a claim has been asserted by Buyer hereunder prior to
expiration of such Claim Period.
40. Bravo's Restaurant Lease. During Buyer's Examination Period, the lease for
Bravo's Restaurant will be renegotiated on terms acceptable to Seller,
Buyer and the Tenant hereunder, in each of their respective sole
discretion, or it will be terminated at Closing.
41. Management Office. During Buyer's Examination Period, Seller and Buyer will
endeavor to enter into a lease agreement for the Management Office at a
location and on terms and provision acceptable to Seller and Buyer, in each
of their sole discretion.
EXECUTED by Seller this 3rd day of November, 1997, in multiple
counterparts, each of which shall have the force and effect of an original.
EXECUTED by Buyer this 3rd day of November, 1997, in multiple
counterparts, each of which shall have the force and effect of an original.
SELLER:
THE NEW CONCORD PLAZA JOINT VENTURE
By: THE NEW PLAZA CORPORATION,
Managing Venturer
By:_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
BUYER:
CALI REALTY ACQUISITION CORP.
By:_____________________________________________
Its:_______________________________________
Receipt of this Purchase and Sale Agreement is acknowledged the _____
day of _________________, 1997.
CHICAGO TITLE INSURANCE COMPANY
By:_____________________________________________
Its:_______________________________________
Receipt of the Initial ▇▇▇▇▇▇▇ Money Payment in the amount of
$100,000.00 is hereby acknowledged this _____ day of _________________, 1997.
SELLER:
THE NEW CONCORD PLAZA JOINT VENTURE
By: THE NEW PLAZA CORPORATION,
Managing Venturer
By:_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., President
Receipt of the ▇▇▇▇▇▇▇ Money Deposit in the amount of $250,000.00 is
hereby acknowledged this _____ day of _________________, 1997.
CHICAGO TITLE INSURANCE COMPANY
By:_____________________________________________
Its:_______________________________________
NOTICE TO TITLE COMPANY: Upon receipt, please deliver one fully
executed counterpart of this Agreement to each of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ with a
copy to ▇▇▇▇▇ ▇. Lowery, Jones, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, 2300 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.