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EXHIBIT 10.16
CONTRACT OF SALE
between
DESERT PACIFIC PROPERTIES, L.L.C.
SELLER
AND
UNITED INVESTORS REALTY TRUST
BUYER
pertaining to the sale and purchase of
SOUTHWEST WALGREEN'S CENTER
PHOENIX, ARIZONA
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CONTRACT OF SALE
This Contract of Sale (the "Contract") is made and entered into by and
between DESERT PACIFIC PROPERTIES, L.L.C., an Arizona limited liability company
having its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ("Seller"), and UNITED INVESTORS REALTY TRUST, a Texas real
estate investment trust having its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Buyer").
ARTICLE I
DEFINED TERMS
1.1 Definitions. As used herein, the following terms shall have the
meanings set forth below:
"Anchor Tenant" means any Tenant at the Project that (i) leases and
occupies 8,000 square feet or more at the Project, (ii) leases and occupies
more space than any other Tenant at the Project, or (iii) leases and occupies
space in at least 25 other shopping centers throughout the United States.
"Business Day" means any day other than a Saturday or Sunday on which
Federal Savings Banks in Phoenix, Arizona are open for business.
"Closing" means consummation of the purchase of the Project by Buyer
from Seller in accordance with the terms and conditions of Article VIII.
"Closing Date" means the date specified in Section 8.1 on which the
closing will be held.
"Contract Date" means the later of the two dates set forth immediately
above each of the signatures of the parties hereto, on the signature page
hereof.
"Delivery Date" means the date on which the last to be received of the
(1) Title Commitment in accordance with paragraph 4.1 herein; (2) the Survey in
accordance with paragraph 4.2 herein; and (3) the Ownership Documents required
by paragraph 5.2(a) herein, are received by Buyer.
"▇▇▇▇▇▇▇ Money Deposit" means the moneys deposited by Buyer in escrow
with the Title Company at the time and in the amount specified in Section 3.2.
"Improvements" means the neighborhood shopping center (the "Shopping
Center") known as Southwest Walgreen's Center, containing approximately 84,000
square feet of improved retail space, located in Phoenix, Arizona, the fixtures
and other improvements now or hereafter situated upon the tract of land
described on Exhibit "A".
"Inspection Period" means the period commencing on the Delivery Date
and ending 30 days thereafter.
"Land" means that certain tract of land located in Maricopa County,
Arizona, and being more fully described on Exhibit "A", together with all
rights appurtenant thereto.
"Leases" means all currently effective leases for space in the
Improvements, including all amendments and modifications thereto and any and
all other agreements with Tenants.
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"Permitted Exceptions" means those exceptions or conditions that
affect or may affect title to the Project that are approved or deemed to be
approved by Buyer in accordance with Section 4.3 or Section 4.4.
"Personal Property" means (a) all tangible personal property owned by
Seller and located on, attached to, or used in connection with, the operation
of the Real Property (but not including any tangible personal property owned or
leased by Tenants), (b) Seller's interest in all personal property leases,
licenses, permits, plans, studies, and utility arrangements with respect to the
Real Property, (c) Seller's interest in all service, maintenance, management or
other contracts relating to the ownership or operation of the Real Property,
and (d) Seller's interest in all warranties and guaranties, if any, relating to
the Real Property.
"Project" means, collectively, the Real Property, the Leases, and the
Personal Property for the Shopping Center.
"Purchase Price" means the total consideration to be paid by Buyer to
Seller for the purchase of the Project.
"Real Property" means the Land and the Improvements for the Shopping
Center.
"Rent Roll" means a schedule for the Project identifying the Tenants
at the Project and providing certain information with respect to the Leases in
accordance with Section 5.2(a)(iii).
"Tenants" means those persons holding rights as tenants of the Shopping
Center.
"Title Company" means Safeco Land Title Company, having its principal
office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President and Escrow Officer.
"Title Underwriter" means Lawyer's Title Insurance Corporation.
"Trade Name" means the name "Walgreen's Southwest Center", as well as
any other name utilized in conjunction with the operation of the Project.
1.2 Other Defined Terms. Certain other defined terms shall have
the respective meanings assigned to them elsewhere in this Contract.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
On the terms and conditions stated in this Contract, Seller hereby
agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase and
acquire from Seller, the Project.
ARTICLE III
PURCHASE PRICE
3.1 Purchase Price. The Purchase Price (herein so called) to be
paid by Buyer to Seller shall be Four Million Seven Hundred Fifty Thousand and
No/100 Dollars ($4,750,000.00). The Purchase Price, net of all prorations set
forth in this Contract, shall be payable to Seller through the Title Company at
the Closing in cash or in good federal funds.
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3.2 ▇▇▇▇▇▇▇ Money Deposit. Within three (3) business days after
the Contract Date, Buyer shall deliver the sum of Fifty Thousand and No/100
Dollars ($50,000.00) as an ▇▇▇▇▇▇▇ money deposit (the "▇▇▇▇▇▇▇ Money Deposit")
in cash to the Title Company. The ▇▇▇▇▇▇▇ Money Deposit shall thereafter be
held by the Title Company in escrow to be applied or disposed of by it as is
provided in this Contract. The ▇▇▇▇▇▇▇ Money Deposit shall be invested in
short-term commercial paper having a maturity of thirty (30) days or less and
rated P-1 by ▇▇▇▇▇'▇ Investor Service, Inc. or A-1 by Standard & Poor's Corp.,
or in some other interest-bearing investment acceptable to the Buyer. All
interest earned thereon shall become part of the ▇▇▇▇▇▇▇ Money Deposit. If the
purchase and sale hereunder are consummated in accordance with the terms and
conditions hereof, the ▇▇▇▇▇▇▇ Money Deposit shall be applied to the Purchase
Price at the Closing. In all other events, the ▇▇▇▇▇▇▇ Money Deposit shall be
disposed of by the Title Company as provided elsewhere in this Contract.
ARTICLE IV
TITLE AND SURVEY AND INSPECTION
4.1 Title Commitment. Within three (3) days after the Contract
Date, Seller shall order, at its sole cost and expense, a current commitment
for Title Insurance for the Project (the "Title Commitment") countersigned by
the Title Company, as agent for the Title Underwriter, which Title Commitment
shall be furnished to Buyer. The Title Commitment shall contain the express
commitment of the Title Company to issue a standard coverage ALTA owner's title
insurance policy to the extent permitted by Arizona law for the Project, which
shall otherwise be in form and content satisfactory to Buyer. The Title
Commitment shall be accompanied by legible copies of all instruments that
create or evidence title exceptions affecting the Real Property.
4.2 Survey. Within three (3) days after the Contract Date, Seller
shall order, at its sole cost and expense, a survey for the Project (the
"Survey") to be furnished to Buyer. The Survey shall be a current, as-built
survey prepared by a registered surveyor licensed in the State of Arizona for
the Project. The Survey shall be dated no more than sixty (60) days prior to
the Contract Date and shall be certified to Buyer and the Title Company. The
Survey shall be a Category 1A, Condition II survey which shall satisfy the
requirements attached hereto as Exhibit "B" and shall otherwise be in form
satisfactory to the Buyer. The metes and bounds description of the Land
contained in the Survey shall be used for purposes of describing the Real
Property in the special warranty deed conveying title to the Real Property from
Seller to Buyer.
4.3 Review of Title Commitment and Survey. Buyer shall have a
period of thirty (30) days (the "Title Review Period") after Seller's delivery
to Buyer of both the Title Commitment and the Survey in accordance with
paragraphs 4.1 and 4.2 above, but in no event after December 17, 1997, in which
to review the Title Commitment and the Survey and give written notice to
specifying Buyer's objections (the "Objections"), if any, to the Title
Commitment and the Survey. If Buyer shall fail to give written notice of
Objections to Seller prior to the expiration of the Title Review Period, then
all exceptions to title shown on Schedules B and C of the Title Commitment
shall be deemed to be Permitted Exceptions.
4.4 Seller's Obligation to Cure; Buyer's Right to Terminate. If
Buyer shall have timely notified Seller in writing of Objections to the Title
Commitments or the Survey, then Seller may, but shall not be obligated to, at
any time prior to the expiration of the Inspection Period (the "Cure Period"),
give written notice ("Seller's Title Cure Notice") to Buyer of Seller's
intention to satisfy the Objections prior to December 22, 1997. If Seller fails
to timely give Buyer the Seller's Title Cure
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Notice, then Buyer shall have the option, prior to Closing, to either (i) waive
the unsatisfied Objections, in which event those unsatisfied Objections shall
become Permitted Exceptions, or (ii) terminate this Contract, in which event
the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer and Seller and Buyer shall
have no further obligations, one to the other, with respect to the subject
matter of this Contract.
4.5 Title Policies. At the Closing, Seller shall cause a standard
coverage ALTA owner's title insurance policy (the "Owner's Title Policy") to be
furnished to Buyer by the Title Company. The Owner's Title Policy shall be
issued by the Title Underwriter and shall insure that Buyer has good and
indefeasible fee simple title to the Project, subject only to the Permitted
Exceptions. The Owner's Title Policy shall contain no exceptions, other than
(i) rights of tenants in possession, as tenants only, (ii) visible and apparent
easements, and (iii) Permitted Exceptions. The basic premium for the ALTA
standard coverage shall be paid by Seller or, at Buyer's option, the cost of
the Owner's Title Policy shall be credited against the Purchase Price, in which
event the requirement for title insurance shall be waived. At Buyer's option
and cost, Seller shall deliver an extended coverage policy, together with such
endorsements as Buyer may require, so long as Buyer pays the incremental
increase to the premium for such policy. The tax exception shall be limited to
taxes for the year of Closing and subsequent years not yet due and payable and
subsequent assessments for prior years due to change in land usage or
ownership.
4.6 Inspection.
(a) Buyer shall have the right, during the Inspection Period, to
make such examinations, studies, tenant credit checks, appraisals, inspections,
engineering, environmental and insurance underwriting tests and investigations
(the "Inspections") of the Project as Buyer may deem advisable. Such
Inspections shall include, without limitation, review of current operating
statements, operating statements for the prior three calendar years, current
rent roll, true copies of the latest real estate tax bills, true and complete
copies of all service contracts affecting the Project, and any and all other
contracts and agreements relating to the Project. Seller shall cooperate with
Buyer in making available the Project for Buyer's Inspections, including any
and all books and records relating thereto. Buyer may also reinspect the
Project prior to Closing to verify that the Project has remained in the same
physical shape, ordinary wear and tear excepted, as the Project was during the
Inspection Period.
(b) If Buyer elects for this Contract to remain in full force and
effect beyond the Inspection Period, then Buyer, at its sole option, shall
deliver written notice (the "Notice to Continue") thereof to Seller and Title
Company, on or before the expiration of the Inspection Period, but in no event
after December 17, 1997. Once the Notice to Continue has been given, the
▇▇▇▇▇▇▇ Money Deposit shall become at risk. If, however, Buyer does not timely
deliver the Notice to Continue, or if Buyer notifies Seller and Title Company
that Buyer has no further interest in purchasing the Project, then, in either
event, the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer, and thereafter
Seller and Buyer shall have no further obligations, one to the other, with
respect to the subject matter of this Contract.
(c) Buyer shall indemnify and hold harmless the Seller from and
against all loss, liability, damage, injury and claims resulting from Buyer's
testing or inspection of the Project; provided, however, this indemnity shall
not include, and shall specifically exclude, any loss, liability, damage etc.
arising out of or resulting from Seller's negligence, gross negligence or
willful misconduct and the discovery of any condition that may require
remediation under applicable environmental laws. This indemnity shall survive
the Closing or termination of this Contract for a period of six months, after
which this indemnity shall automatically terminate.
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ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS,
AND AGREEMENTS OF SELLER
5.1 Representations and Warranties of Seller. Seller's
representations and warranties set forth in this Contract are true and correct
in all material respects as of the Contract Date and will be true and correct
in all material respects on the Closing Date. Such representations and
warranties shall survive the Closing and shall not be merged therein. Seller
hereby represents and warrants to Buyer as follows:
(a) Seller has the full right, power, and authority to sell and
convey to Buyer the Project as provided in this Contract and to carry out
Seller's obligations hereunder, and all requisite action necessary to authorize
Seller to enter into this Contract and to carry out Seller's obligations
hereunder has been, or on the Closing Date will have been, taken;
(b) There are no adverse or other parties in possession of the
Project, or of any part thereof as lessees, tenants at sufferance, or
trespassers, except Tenants referenced in the Rent Roll to be delivered
pursuant to Section 5.2(a);
(c) Seller has not received written notice from any governmental
or quasi-governmental agency or insurance underwriter requiring or suggesting
that Seller should correct any condition with respect to the Project, which
condition remains uncorrected;
(d) Seller has not received written notice of any pending
condemnation action with respect to all or any portion of the Project and there
are no existing condemnation or other legal proceedings affecting the existing
use of the Project by any governmental authority having jurisdiction over or
affecting all or any part of the Project;
(e) There is no litigation pending or threatened, affecting the
Project other than as incurred in the normal course of business and with
respect to which Seller's insurance underwriter(s) is responsible or with
respect to which Seller shall indemnify and hold harmless Buyer from and after
the Closing Date;
(f) There are no unpaid assessments (governmental or otherwise)
for sewers, water, paving, electrical power or otherwise affecting the Project
(matured or unmatured) and no such assessments are threatened;
(g) This Contract constitutes a valid and binding obligation of
the Seller, enforceable in accordance with its terms;
(h) The Seller has good and indefeasible title to the Project,
free and clear of any claim, lien, encumbrance, easement, restriction or other
charge, other than the Permitted Exceptions;
(i) The current use of the Project complies with all currently
applicable zoning ordinances and governmental requirements;
(j) Except as expressly referred to herein, there are no licenses
or security interest against the Land, the Improvements, or the Personal
Property or against any other portion of the Project, nor are there any liens
or actions pending which would result in the creation of any lien
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against the Land, the Improvements or against any other portion of the Project,
including, but not limited to water, sewage, street paving, electrical or power
improvements, which give rise to any lien completed or in progress. At the
Closing, there will be no unpaid bills or claims in connection with any repair
of the Improvements or other work performed or material purchased in connection
with the Improvements;
(k) The Service Contracts, Leases and other agreements delivered
to Buyer pursuant to this Contract constitute all contracts, leases or
agreements affecting the Project (and the ownership and use thereof); the
Ownership Documents delivered pursuant to Section 5.2 herein are true and
correct copies of the originals and no other amendments or modifications exist
thereto; and no defaults, or events which with notice and/or passage of time
would constitute default, exist thereunder; and each of the Service Contracts
(as that term is defined in Section 5.2(a)(vi)) pertaining to the Project is
terminable without cause prior to the Closing Date;
(l) To Seller's best information, there are no circumstances
existing that would adversely affect the use or value of the Project as a
shopping center;
(m) No permission, approval or consent by any other person,
including any of partners, shareholders, directors or officers of any of the
Seller, or governmental authorities is required in order for Seller to
consummate this Contract;
(n) The existing water, sewer, gas and electricity lines, storm
sewer and other utility systems on the Land as of the date hereof are not
impaired and are sufficient to serve the Project for its current uses. All
existing utilities enter the Land through adjoining public streets or private
land in accordance with valid public or private easements that will inure to
the benefit of Seller and its successors and assigns. All of said utilities
have been installed and are operating, with all installation and connection
charges paid in full;
(o) Based on currently applicable taxes, Seller has paid all
taxes, charges, and assessments (special or otherwise) required to be paid to
any taxing authority with respect to the Project (except for taxes and
assessments for the current year not yet due and payable); and no action or
proceeding currently exists by a governmental agency or authority for the
assessment or collection of currently applicable taxes, charges, or assessments
with respect to the Project;
(p) The executed Leases, which are to be delivered by Seller to
Buyer at Buyer's principal office in accordance with the terms of this
Contract, are and shall be true and correct copies, and no Tenants are or shall
be entitled to any rebates, allowances, rent concessions or free rent for any
period subsequent to the Closing. All obligations and items of an inducement
nature to be performed by the Seller as landlord under any of the Leases or to
which Seller otherwise agreed to perform have been fully performed and no
commitments have been made to any Tenant for repairs or improvements other than
a general landlord requirement for normal maintenance in the future. No Leases
shall be further modified or amended without the prior written consent of
Buyer, which consent shall not be unreasonably withheld. Except as reflected
on the current Rent Roll to be delivered to Buyer pursuant to the provisions of
Section 5.2 below, no Tenant has given Seller notice of its intention to vacate
its leased premises prior to the end of the primary term (or any current
renewal or extended term). All of the Leases are in full force and effect
without current default by Seller or the respective Tenants. There are no
pending claims asserted by any past or present Tenants for offsets against rent
or any other claims (whether monetary or otherwise) made against Seller, as
landlord, under the Leases or otherwise. There are no fees or commissions
payable to any person or entity in regard to the Leases or the Project, except
as specifically set out in the Rent Roll;
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(q) All financial and operating statements, rent rolls, contracts,
agreements and books and records delivered by Seller to Buyer relating to
Seller and its business are true and correct in all respects; and there are no
omissions of any material facts relating thereon;
(r) The Project is not in violation of any applicable laws, rules,
regulations, ordinances, contracts or agreements, including, without
limitation, any and all state, local, city or federal environmental laws, rules
and regulations;
(s) Seller has full right, title and authority to enter into this
Contract, without the joinder or consent of any other party, and that no other
party has any right, option, interest, or claim to all or any part of the
Project, whether subject to ▇▇▇▇▇▇▇ money contract, option agreement, right of
first refusal, reversionary or future interests, or right of reverter; and
(t) Seller is not a foreign person or entity pursuant to the
Foreign Investment in Real Property Tax Act, or the Tax Reform Act of 1986, and
Buyer is not obligated to withhold any portion of the Purchase Price for the
benefit of the Internal Revenue Service.
5.2 Covenants and Agreements of Seller. Seller covenants and
agrees with Buyer as follows:
(a) Within five (5) business days following the Contract Date,
Seller shall deliver to Buyer the following items (the "Ownership
Documents") with respect to the Project:
(i) To the extent that Seller has in its possession, copies of
"as-built" plans and specifications for the Improvements and copies of
the results of all physical inspections, all structural, mechanical,
engineering reports, soil reports and traffic studies that have been
prepared with respect to the Real Property, and a zoning verification
letter from the authorities of Phoenix, Arizona with copies of all
applicable zoning ordinances then in effect which apply to the
Project;
(ii) Current certificates of occupancy in the name of the Seller
and building permits (if available) for each building within the
Project, and, to the extent that Seller has in its possession, a
current phase I environmental report and ADA study;
(iii) Current Rent Roll for the Project, which Rent Roll shall set
forth with respect to each Tenant the following;
(A) the name and street or unit number of the Tenant;
(B) the term of the Tenant's Lease, its commencement and
expiration dates, any renewal terms or extensions and the base
rent and percentage rent, if any, payable thereunder;
(C) the amount of monthly base rent and percentage rent,
if any, payable by and portion of the Project's CAM and real
estate taxes and insurance premiums recoverable from each
Tenant and any other payments for which such Tenant is liable;
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(D) amount of prepaid rent and the amount of security and
other deposits due under the Lease and held by Landlord;
(E) the amount of any ongoing Lease commission
obligations, if any, and to whom such commission is owed and
copies of all brokerage commission agreements relating to the
Leases;
(F) any uncured defaults and the amounts of any unpaid
rents, percentage rents, and other payments past due
thereunder;
(G) the amount of any offsets or credits against rental,
if any; and
(H) any concessions granted to the Tenant, including,
without limitation, free rent, rental rebates or credits,
lease take-over arrangements, cash payments, and moving
allowances;
(iv) Copy of the most recent or current real estate and personal
property tax bills or other documentation showing the amount of
current real property taxes and the assessed value of the Project;
(v) A schedule setting forth property and liability insurance
coverage on or affecting the Project and the current premiums therefor
together with a written summary of all claims made against the
Project's insurance policies since January 1, 1995.
(vi) Copies of all existing service, maintenance, operations, and
management and other contracts relating to the management, operation
or maintenance of the Project (the "Service Contracts"), and any
commission agreements affecting the Project;
(vii) Copies of true and correct operating income and expense
statements with respect to the Project, accurately reflecting the
operating history of the Project for calendar years 1994, 1995 and
1996 and for year- to-date 1997, together with operating budgets for
calendar years 1997 and 1998, if available, for the Project;
(viii) A detailed summary of all capital expenditures for the
calendar years 1994, 1995 and 1996, and year-to-date 1997, together
with the capital expenditure budgets for calendar years 1997 and 1998,
if available, for the Project;
(ix) All warranties and guaranties currently in force, if any,
relating to the Project or any equipment, appliances or other
personalty located in or used on the Real Property and in the
possession of Seller or its agents;
(x) True and complete copies of all Leases, including all
amendments, extensions and modifications thereof; and
(ix) Such other information and/or documentation as Buyer shall
reasonably request;
All materials delivered by Seller to Buyer pursuant to this Section 5.2(a)
shall be held in confidence by Buyer and disclosed only to its attorneys,
accountants, and prospective lenders and
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securities underwriters and their respective attorneys. If the
parties fail to consummate the transaction described herein for any
reason other than the Seller's default, Buyer shall return to Seller
all materials delivered by or on behalf of Seller pursuant to or in
connection with this Contract.
(b) From the Contract Date until the Closing Date, Seller
undertakes and agrees, with respect to the Project, that it will:
(i) Operate and maintain the Project in a good and workmanlike
manner and in accordance with all applicable laws;
(ii) Promptly notify Buyer in writing of any litigation,
arbitration or administrative hearing before any court or governmental
agency concerning or affecting the Project which is instituted or
threatened after the Contract Date;
(iii) Following the expiration of the Inspection Period, not
terminate or modify any Lease or commence any judicial action against
any Tenant other than in the normal course of business without the
prior written consent of Buyer, which consent shall not be
unreasonably withheld;
(iv) Following the expiration of the Inspection Period, not execute
any new lease or agree to the terms of any lease renewal without the
prior written consent of the Buyer, which consent shall not be
unreasonably withheld;
(v) Promptly notify Buyer in writing of any notice received from a
Tenant of its election to vacate its leased premises or terminate its
Lease, or of any election by Seller to terminate any Lease or commence
any judicial action against any Tenant;
(vi) Not sell, exchange, transfer, assign, convey or encumber or
otherwise dispose of all or any part of the Project or any interest
therein, nor shall Seller remove any Personal Property unless Seller
shall replace the removed items with similar items of comparable
quality;
(vii) Maintain the Project in good condition and repair, except for
normal wear and tear, and Seller shall not in any manner neglect the
Project;
(viii) There will be no rental or other concessions of any nature
granted to any Tenant other than those set forth in the Leases and on
the Rent Roll delivered to Buyer pursuant to Section 5.2 (a)(iii),
above;
(ix) Promptly notify Buyer in writing if Seller discovers any
defect, error or omission in any of the Ownership Documents, detailing
the nature of the defect, error or omission;
(x) Not, without the prior written consent of the Buyer, enter
into or modify any Service Contracts which are not terminable without
cause on or before the Closing Date; or
(xi) Not, without the prior written consent of Buyer, consent to
any assignment or sublease or other encumbrance by a Tenant of its
interest, or any part thereof, in its Lease, except as may be required
by the terms of the Lease.
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5.4 Survival Beyond Closing. The representations, warranties
undertakings and agreements of Seller contained herein shall survive the
Closing and shall not be merged therein.
ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF BUYER
Buyer represents, warrants, covenants, and agrees with, Seller as of
the Contract Date, that, except as otherwise hereinafter expressly provided,
Buyer has the full right, power, and authority to purchase the Project from
Seller as provided in this Contract and to carry out Buyer's obligations under
this Contract, and all requisite action necessary to authorize Buyer to enter
into this Contract and to carry out Buyer's obligations hereunder has been, or
on the Closing Date will have been, taken.
ARTICLE VII
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
7.1 Conditions Precedent to Buyer's Obligations. Buyer shall
not be obligated to consummate the transaction described in this Contract
unless:
(a) Seller shall have furnished or caused to be furnished to
Buyer all of the items required to be furnished by Seller under Section 5.2(a);
(b) Seller shall have performed in all material respects all of
the agreements, covenants and obligations contained in this Contract to be
performed or complied with by Seller on or prior to the Closing Date;
(c) All representations and warranties made by Seller hereunder
shall be true, complete and accurate in all material respects as of the Closing
Date;
(d) The Title Company shall be prepared to deliver at Closing the
Owner's Title Policy described in Section 4.5;
(e) UCC searches conducted by the Title Company within five (5)
days prior to the Closing Date shall show that none of the Personal Property
has been pledged, encumbered or transferred;
(f) No Anchor Tenant shall be in default under its Tenant Lease
and all Service Contracts will terminate as of the Closing Date, except to the
extent that Buyer has notified Seller in writing that it will accept an
assignment of such contracts, as contemplated by Section 8.2(a)(vi) hereof;
(g) Tenant Estoppel Certificates shall have been received by Buyer
from (i) all of the Anchor Tenants, and (ii) at least 85% (by number and square
footage at the Project), of the non-anchor tenants at the Project, which
Estoppel Certificates shall confirm the information set forth on the Rent Roll
delivered (A) as part of the Ownership Documents, as modified to reflect any
non-substantive changes thereto, or (B) with respect to Tenants who have
executed new leases since the Contract Date, as reflected on the Rent Roll to
be delivered in connection with the Closing; and as to the remaining 15% of the
non-anchor tenants, either Tenant Estoppel Certificates have been received by
Buyer or Seller has certified in writing the same information set forth in the
Estoppel Certificates as to such remaining non-anchor tenants;
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(h) If the Project is subject to any reciprocal easement
agreements, agreement of covenants, conditions and restrictions or similar
documents with adjacent landowners, Buyer shall have received an estoppel
certificate from the owner of the adjacent land, which estoppel certificate
shall be dated not more than 30 days prior to the Closing Date and shall state,
inter alia, that there are no defaults by Seller or claims against Seller
arising out of such documents and shall otherwise be in form and substance
reasonably acceptable to Buyer;
(i) There shall be no material change in the matters reflected in
the Title Commitment or Survey and all municipal and utility services shall be
available to the Project;
(j) No material changes shall have occurred or be threatened with
respect to the Project which would adversely affect the findings made during
the Inspection Period;
(k) The Improvements and Personal Property at the Project shall
be in the same or better condition as they were during the Inspection Period,
ordinary wear and tear excepted;
(l) There shall be no litigation pending or threatened that could
materially adversely affect the Project; and
(m) No Anchor Tenant shall have filed a petition under any
section of the Bankruptcy Code, as amended, or under any similar law or statute
of the United States or any State thereof, nor shall any Anchor Tenant have
been adjudged bankrupt or insolvent and no receiver or trustee shall have been
appointed for any Anchor Tenant or any of the assets of any Anchor Tenant, and
no Anchor Tenant shall "have gone dark" with respect to its space at the
Project or shall have notified Seller of its intention to do so.
7.2 Termination if Conditions Precedent not Satisfied or Waived.
If any of the conditions precedent to the performance of Seller's obligations
under this Contract have not been satisfied, waived, or deemed waived by the
Buyer within the time frame established herein or otherwise by the Closing
Date, then the Buyer may, at its option, by written notice delivered to the
obligated party and Title Company, terminate this Contract, in which event the
▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer and thereafter Buyer and
Seller shall have no further obligations, one to the other, with respect to the
subject matter of this Contract, subject to the provisions of Article IX
hereof.
ARTICLE VIII
CLOSING
8.1 Date and Place of Closing. The Closing shall take place in
the offices of the Title Company. The Closing Date shall on December 29,
1997, or sooner, upon Buyer's request.
8.2 Items to be Delivered at or Prior to the Closing
(a) Seller. At the Closing, Seller shall deliver or cause to be
delivered to Buyer or the Title Company, the following items fully executed and
acknowledged where so indicated by all necessary parties in respect to the
Project:
(i) The Owner's Title Policy to Buyer, in the form
specified in Section 4.5 (unless waived by Buyer in accordance
with the provisions of Section 4.5);
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(ii) A special warranty deed, duly executed and
acknowledged by Seller, in the form of Exhibit "C", subject
only to the Permitted Exceptions;
(iii) The original Leases, or, if any original Leases are
not available, copies of any such Leases certified by Seller
as being true, correct and complete;
(iv) Duplicate originals of an assignment and assumption
of leases (the "Assignment of Leases") in the form attached
hereto as Exhibit "D", duly executed by Seller;
(v) A ▇▇▇▇ of sale and assignment in the form, attached
hereto as Exhibit "E", duly executed by Seller;
(vi) Duplicate originals of an assignment and assumption
of Service Contracts (the "Assignment of Service Contracts")
in the form or substantially the form, attached hereto as
Exhibit "F", duly executed by Seller;
(vii) An affidavit, in the form, or substantially in the
form, attached as Exhibit "G", in compliance with Section 1445
of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder, stating under penalty of
perjury the Seller's United States identification number and
that Seller is not a "foreign person" as that term is defined
in Section 1445, duly executed and acknowledged by Seller;
(viii) A notice of sale in the form, or substantially in the
form, attached hereto as Exhibit "H", (the "Tenant Notice
Letter") for each of the Tenants, duly executed by Seller and
Buyer;
(ix) A tenant estoppel letter in the form attached hereto
as Exhibit "I" from each Tenant at the Project, as prescribed
in Section 7.1(g), which estoppel letters shall be signed and
dated by each Tenant not more than 30 days prior to the
Closing Date;
(x) All keys or other access devices in the possession of
Seller or its agents to all locks located at the Project;
(xi) Originals of all Service Contracts, plans,
governmental approvals, and other contracts and agreements in
Seller's possession relating to the ownership and operation of
the Project;
(xii) Originals, to the extent available, and, if not
available, true and correct copies of all books and records
pertaining to the operation of the Project for the calendar
years 1994, 1995 and 1996, and for the year-to-date 1997, in
the possession of Seller or Seller's agent;
(xiii) Appropriate evidence of authorization and opinion of
Seller's counsel reasonably satisfactory to the Title Company
(if required by the Title Company) regarding the consummation
of the transaction contemplated by this Contract;
(xiv) Unless waived by Buyer, notices of cancellation, to
be effective within thirty days of the Closing Date, of all
Service Contracts affecting the Project;
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(xv) A reaffirmation certificate executed by Seller
wherein Seller reaffirms and confirms that the
representations and warranties of Seller set forth in this
Contract are true and such representations and warranties of
Seller remain true and correct as of the Closing Date;
(xvi) Letters to all utility companies advising of the
change of ownership of the Project and an assignment of any
deposits currently held by the utility company for the benefit
of the Seller;
(xvii) An Affidavit of Real Property Value; and
(xviii) Any other items reasonably requested by the Title
Company as administrative requirements for consummating the
Closing.
(b) Buyer. At the Closing, Buyer shall deliver or cause to be
delivered to Seller or the Title Company, the following items:
(i) The cash sum required by Section 3.1;
(ii) Duplicate originals of the Assignment of Leases duly
executed by Buyer;
(iii) Duplicate originals of the Assignment of Service
Contracts duly executed by Buyer;
(iv) Appropriate evidence of authorization reasonably
satisfactory to Seller and the Title Company for the
consummation of the transaction contemplated by this Contract;
(v) An Affidavit of Real Property Value; and
(vi) Any other items reasonably requested by the Title
Company as administrative requirements for consummating the
Closing.
8.3 Adjustments at Closing. Notwithstanding anything to the
contrary contained in this Contract or applicable law, the provisions of this
Section 8.3 shall survive the Closing. All income and obligations attributable
to days preceding the Closing Date shall be allocated to Seller, and all income
and obligations attributable to days from and after the Closing Date shall be
allocated to Buyer. Without limitation upon the foregoing, the following items
shall be adjusted or prorated between Seller and Buyer as set forth below:
(a) Ad valorem and personal property taxes relating to the Project
for the calendar year in which the Closing occurs shall be prorated between
Seller and Buyer as of the Closing Date based upon taxes actually paid by
Seller for the calendar year in which the Closing occurs, if Seller has paid
such taxes prior to Closing, and otherwise upon the ad valorem and personal
property taxes due assuming payment in December of the year of Closing. If the
actual amount of taxes for the calendar year in which the Closing shall occur
is not known as of the Closing Date, the proration shall be based on the amount
of taxes due and payable with respect to the Project using the latest assessed
value and tax rate. All other assessments affecting the Project, if any,
assessed prior to Closing Date, shall be paid by the Seller and if assessed
after the Closing Date, shall be paid by the Buyer.
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(b) Base rents, escalation or reimbursement payments for real
estate and personal property taxes, insurance premiums, CAM or other operating
expenses and charges, payable with respect to the Project for the then current
month shall be prorated as of the Closing Date. Percentage rents for each
Tenant obligated therefor shall be pro-rated on the basis of the number of days
lapsed during the Tenant's percentage rent period as of the Closing Date and
not on the basis of the amount of the Tenant's sales which accrued during such
percentage rent period as of the Closing Date. Such proration may not be
capable of determination at the Closing Date, in which event, such prorations
shall be made post- Closing. Any rent concessions granted by the Seller to
Tenants for free rent, concessions or abatements, which apply to periods after
the Closing Date shall not be prorated but shall be credited to the Buyer.
With respect to any Tenant ("Delinquent Tenant") who owes rents and other
charges which at Closing are past due, such past due rents and other charges
("Delinquencies") shall not be prorated. Buyer shall remit such Delinquencies,
if any, if, as and when collected by Buyer, provided, however, that if a
payment is received by Buyer from a Delinquent Tenant, such payment may be
applied by Buyer first to any rents or other sums that are past due by such
Delinquent Tenant from and after the Closing Date. The right to receive and
collect all rents and profits, delinquent or otherwise, shall be assigned by
Seller to Buyer at Closing.
(c) All other income and ordinary operating expenses of the
Project, including, without limitation, public utility charges, maintenance,
management, and other service charges, and all other normal operating charges
shall be prorated at the Closing effective as of the Closing Date based upon
the best available information. The obligation of the parties to adjust,
post-Closing, and any operating expenses as of the Closing Date, shall, to the
extent unknown or not provided for at Closing, survive the Closing and shall be
paid by the party responsible therefor within ten (10) days after written
demand therefor has been made. Such demand shall include a copy of the
invoice(s) for which payment or reimbursement is sought.
8.4 Deferred Leasing Commissions. The amount of any unpaid
leasing commissions payable on account and over the term of existing Leases or
Leases entered into between the date hereof and the Closing Date shall either
be paid by the Seller or treated as a credit to Buyer. Commissions payable on
account of Leases which are subject to renewal at the option of the Tenant and
with respect to which the options have not been exercised prior to the Closing
Date shall not be covered by the preceding sentence.
8.5 Possession. Possession of the Project shall be delivered to
Buyer by Seller at the Closing, subject to the rights of the Tenants.
8.6 Costs of Closing. Each party shall be responsible for paying
the legal fees of its counsel in negotiating, preparing, and closing the
transaction contemplated by this Contract. Seller shall pay for the cost of
the Survey, title policy premium for a standard ALTA coverage, real estate tax
searches and current UCC searches and Tenant credit checks. Buyer shall pay
the balance of the Owner's Title Policy premium (including the premium for
endorsements required by Buyer), and for the cost of its own engineering and
environmental inspections. All sales, transfer, excise, transaction,
privilege, documentary stamp or similar taxes or fees, and all recording costs
and similar closing costs shall be paid by Seller in connection with the sale
and purchase of the Project under the terms hereof. The parties shall split
the cost of any title company escrow fees. Any other expenses that are incurred
by either party that are expressly identified herein as being the
responsibility of a particular party shall be paid by such party. All other
expenses shall be allocated between the parties in the customary manner for
sales of commercial real properties similar to the Project which are located in
Phoenix, Arizona.
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8.7 Provisions of Article VIII to Survive Closing. The
provisions of this Article VIII shall survive the Closing.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Default of Buyer. If Buyer fails or refuses to consummate the
transaction contemplated by this Contract, for any reason other than
termination of this Contract by Buyer pursuant to a right to do so expressly
set forth in this Contract, then such event shall constitute a default by Buyer
hereunder and the Seller may, as the Seller's sole and exclusive remedy for
such default, either (i) bring an action against the Buyer for specific
performance of the Buyer's obligations under this Contract, or (ii) terminate
this Contract by giving written notice thereof to Buyer and the Title Company
at or prior to the Closing Date, whereupon the Title Company shall deliver the
▇▇▇▇▇▇▇ Money Deposit (including the interest earned thereon) to the Seller
which shall constitute liquidated damages hereunder and thereafter neither
party hereto shall have any further rights or obligations hereunder. It is
agreed that the ▇▇▇▇▇▇▇ Money Deposit is a reasonable forecast of just
compensation for the harm that would be caused by such default, which the
parties agree is one that is incapable or very difficult of accurate
estimation, and that payment of the ▇▇▇▇▇▇▇ Money Deposit upon such default
shall constitute full satisfaction of Buyer's obligations hereunder.
9.2 Default of Seller. If Seller fails or refuses to consummate
the sale of the Project to Buyer pursuant to this Contract at the Closing or
fails to perform any of Seller's other obligations hereunder for any reason
other than Buyer's failure to perform Buyer's obligations under this Contract,
then Buyer may, as Buyer's sole and exclusive remedy for such default, either
(i) bring an action against the Seller for specific performance of the Seller's
obligations under this Contract, (ii) terminate this Contract by giving written
notice thereof to Seller and the Title Company at or prior to the Closing Date,
whereupon the Title Company shall deliver the ▇▇▇▇▇▇▇ Money Deposit (including
the interest earned thereon) to Buyer and thereafter neither party hereto shall
have any further rights or obligations hereunder, or (iii) receive the return
of the ▇▇▇▇▇▇▇ Money Deposit and prosecute an action for damages if Seller has
conveyed or hypothecated the Project to a third party in violation of the terms
hereof.
9.3 ▇▇▇▇▇▇▇ Money. In the event either Seller or Buyer becomes
entitled to the ▇▇▇▇▇▇▇ Money Deposit upon cancellation of this Contract in
accordance with its terms, such party may deliver a letter of instruction to
the Title Company directing disbursement of the ▇▇▇▇▇▇▇ Money Deposit to the
party entitled thereto. The party delivering such notice to the Title Company
shall concurrently deliver a copy of the notice to the other party hereto.
Upon the expiration of three (3) business days after its receipt of the letter
of instructions, the Title Company may deliver the ▇▇▇▇▇▇▇ Money Deposit to the
party as specified in the letter of instructions unless, within such three (3)
business day period, the Title Company shall have received a written objection
to such delivery from the other party hereto. In such event, the Title Company
shall not deliver the ▇▇▇▇▇▇▇ Money Deposit to either party unless it has a
written authorization to do so signed by both parties or a court order has been
issued by a court of competent jurisdiction to deliver the ▇▇▇▇▇▇▇ Money
Deposit to one of the parties hereto. The Title Company may deposit the
▇▇▇▇▇▇▇ Money Deposit into a court of competent jurisdiction and thereafter
shall have no further interest in or responsibility for this Contract or for
the ▇▇▇▇▇▇▇ Money Deposit.
9.4 Indemnification of Title Company. Each party hereto hereby
indemnifies and holds harmless the Title Company from any loss, damage or claim
therefor arising out of or in connection with the receipt and disposition of
the ▇▇▇▇▇▇▇ Money Deposit in accordance with the instructions set
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forth in this Contract. These indemnities shall survive the termination of
this Contract or a closing pursuant hereto.
ARTICLE X
BROKERAGE COMMISSIONS
10.1 Amount. Seller hereby agrees to pay to Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ of
▇▇▇▇▇▇ and Millichap and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and any other broker or finder and
responsible for introducing the parties hereto to each other for the purpose of
consummating the transaction contemplated hereby (the "Broker"), for Broker's
services in connection with this transaction, a commission pursuant to a
separate agreement between Seller and Broker.
10.2 Indemnity. Seller hereby represents and warrants to Buyer that
it has not contacted or entered into any agreement with any real estate broker,
agent, finder, or any other party in connection with this transaction, and that
Seller has not taken any action which would result in any real estate broker's,
finder's, or other fees or commissions being due or payable to any other party
with respect to the transaction contemplated hereby. Buyer hereby represents
and warrants to Seller that Buyer has not contracted or entered into any
agreement with any real estate broker, agent, finder, or other party in
connection with this transaction, other than as identified in Section 10.1, and
that Buyer has not taken any action which would result in any real estate
broker's, finder's, or other fees or commissions being due or payable to any
other party with respect to the transaction contemplated hereby. Each party
hereby indemnifies and agrees to hold the other party harmless from any loss,
liability, damage, cost, or expense (including, but not limited to, reasonable
attorneys' fees) resulting to the other party by reason of a breach of the
representation and warranty made by such party in this Section 10.2. The
indemnities set forth in this Section 10.2 shall survive the Closing.
ARTICLE XI
CASUALTY OR CONDEMNATION
(a) Seller agrees to give Buyer and Title Company prompt notice of
any fire or other casualty affecting the Project or of any actual or threatened
taking or condemnation of all or any portion of the Project. If, prior to the
Closing, there shall occur:
(i) damage to the Project caused by fire or other
casualty; or
(ii) a threatened or actual taking or condemnation of all
or any portion of the Project,
then, Buyer shall have the right to terminate this Contract by written notice
delivered to Seller within ten (10) days after Buyer has received notice from
Seller of that event or the date on which Buyer learns of that event, whichever
shall last occur. If Buyer terminates this Contract, the ▇▇▇▇▇▇▇ Money
Deposit shall be returned to Buyer and the parties shall have no further
obligations under this Contract, or to each other with respect to the subject
matter of this Contract. Notwithstanding the foregoing, in the event that the
cost of repairing or restoring such damage shall be covered by available
insurance and such cost shall be less than $100,000, then Buyer shall proceed
to Closing and Seller shall assign at Closing to Buyer its right, title and
interest in the insurance proceeds available to repair or restore the damage or
destruction and to any applicable rent loss insurance and, in addition, Seller
shall credit the Purchase Price with the amount of any deductible under such
insurance policy(s).
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(b) In the event of damage or destruction to the Project, Buyer
may postpone the Closing Date pending a determination of the nature and extent
of such damage or destruction and the availability and adequacy of insurance
proceeds. Such postponement shall be by written notice from Buyer to Seller
and Title Company and shall remain in effect for a period of ten (10) days (the
"Damages Determination Period") following Buyer's determination of the nature
and extent of the damage or destruction and the availability and adequacy of
insurance proceeds for repair or restoration.
(c) If the cost to repair or replace the damage is reasonably
estimated by the Seller's insurance adjuster to exceed $100,000, then at
Buyer's election and in its sole discretion, Buyer may elect to proceed with
the Closing and at the Closing, Seller shall assign to Buyer its right, title
and interest in the insurance proceeds available to repair or restore the
damage or destruction and to any applicable rent loss proceeds, and Seller
shall credit the Purchase Price with the amount of any deductible under such
insurance policy(s).
(d) In the event that Buyer fails to notify Seller and Title
Company of its intention to proceed to Closing and accept as assignment of the
insurance proceeds prior to the expiration of the Damage Determination Period,
the Contract shall automatically terminate and the ▇▇▇▇▇▇▇ Money Deposit shall
be returned to Buyer forthwith.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices, demands, requests, and other
communications required or permitted hereunder shall be in writing, and shall
be deemed to be delivered on receipt if delivered by hand, overnight delivery,
or by facsimile, or whether actually received or not, three (3) days after
having been deposited in a regularly maintained receptacle for the United
States mail, registered or certified, return receipt requested, postage
prepaid, addressed as follows:
If to Seller: Desert Pacific Properties, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: United Investors Realty Trust
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Operating Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
United Investors Realty Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
8th Floor Texas Commerce Bank Bldg.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
12.2 Governing Law. This Contract is being executed and delivered,
and is intended to be performed, in the State of Arizona, and the laws of
Arizona shall govern the validity, construction, enforcement, and
interpretation of this Contract. This Contract is performable in, and the
exclusive venue for any action brought with respect hereto, shall lie in
Maricopa County, Arizona.
12.3 Entirety and Amendments. This Contract embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the Project, and may be amended or
supplemented only by an instrument in writing executed by the party against
whom enforcement is sought.
12.4 Parties Bound. This Contract shall be binding upon and inure
to the benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and permitted assigns, but shall not inure to the
benefit of another party.
12.5 Saturday, Sunday or Legal Holiday. If any date set forth in
this Contract for the performance of any obligation by Buyer or Seller or for
the delivery of any instrument or notice should be on other than a Business
Day, the compliance with such obligations or delivery shall be deemed
acceptable on the next following Business Day.
12.6 Time is of the Essence. It is expressly agreed by Seller and
Buyer that time is of the essence with respect to this Contract.
12.7 Exhibits. The Exhibits which are referenced in, and attached
to, this Contract are incorporated in, and made a part of, this Contract for
all purposes. If one or more exhibits to be attached to this Agreement
according to the terms hereof are not so attached or are incomplete upon the
actual date of execution hereof, then all such missing or incomplete exhibits
must be prepared or completed by the Buyer prior to the expiration of the
Inspection Period; on or before the expiration of the Inspection Period, Seller
has the right to approve, in its sole discretion, the form and contents of each
such exhibit supplied by the Buyer pursuant to this paragraph and such approval
by Seller is a condition precedent to Buyer to the Closing.
12.8 Attorney's Fees. If either party hereto shall be required to
employ an attorney to enforce or defend the rights of such party hereunder, the
prevailing party shall be entitled to recover its reasonable attorney's fees
and costs.
12.9 Expiration of Offer. The execution by one party hereto and
delivery to the other party hereto of an executed counterpart of this Contract
shall constitute an offer to sell or purchase the Project, as may be the case,
upon the terms stated herein. If a counterpart of this Contract executed by
one party hereto without modification is not received by the other party hereto
within three (3) business days after the time and date of the execution by the
first, as indicated below, the offer contained in this Contract shall be null
and void.
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12.10 Multiple Counterparts. This Contract may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and either of the parties hereto may execute this Contract
by signing any such counterpart.
12.11 Severability. If any provision of this Contract shall, for
any reason, is held to violate any applicable law, and so much of this Contract
is held to be unenforceable, then the invalidity of such specific provision
shall not be held to invalidate any other provision of this Contract which
shall remain in full force and effect.
12.12 Assignment. This Contract may be assigned by Buyer to any
affiliated entity without the prior written consent of Seller.
12.13 Tax-Free Exchange. Seller may desire to consummate this
transaction in whole or in part as a tax deferred exchange pursuant to Section
1031 of the Internal Revenue Code. Upon written notification from Seller to
Buyer, Buyer agrees that the purchase price shall not be distributed to Seller
outright or otherwise, but shall be distributed to a "qualified person" (as
defined in Treasury Regulation Section 1.1031(k)-1(k)) pursuant to an agreement
between Seller and the qualified person which meets one of the safe harbors
contained in Treasury Regulation Section 1.1031(k). Seller shall be
responsible for ensuring that such agreement meets the requirements of a safe
harbor and shall provide Buyer with the name of the qualified person in writing
within a reasonable time before Closing. Buyer agrees to accommodate Seller in
effectuating a like-kind exchange of the Project in exchange for exchange
property selected by Seller, but in no event shall Buyer be required or
obligated to incur any costs, expenses or liability in connection with
accommodating Seller in effectuating a like-kind exchange.
EXECUTED by Buyer on the 21st day of November, 1997.
BUYER: UNITED INVESTORS REALTY TRUST, a Texas
real estate investment trust
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Operating
Officer
EXECUTED by Seller on the 26th day of November, 1997
SELLER: DESERT PACIFIC PROPERTIES, L.L.C., an
Arizona limited liability company
By: /s/ ▇. ▇. ▇▇▇▇▇
----------------------------------
Name: ▇. ▇. ▇▇▇▇▇
--------------------------------
Title: CFO
-------------------------------
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Receipt of a fully executed copy of the Contract and a check, subject to
collection for the ▇▇▇▇▇▇▇ Money Deposit received this 5th day of
December 1997.
TITLE COMPANY: SAFECO LAND TITLE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President
--------------------------------
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Order No. 7-0672571
EXHIBIT "A"
Part of the Southeast quarter of Section 36, Township 3 North, Range 2 East
of the Gila and Salt River Base and Meridian, Maricopa County, Arizona,
more particularly bounded and described as follows:
COMMENCING at the Northeast corner of the Southeast quarter of said Section
36;
THENCE South 89 degrees 51 minutes 50 seconds West, a distance of 40.00
feet;
THENCE South 00 degrees 05 minutes 35 seconds West, 40.00 feet Westerly of
and parallel to the East line of said Section 36, a distance of 1741.79
feet to the Point of Beginning for the tract to be described;
THENCE continuing South 00 degrees 05 minutes 35 seconds West 40.0 feet
Westerly of and parallel to the East line of said Section 36, and being
along the existing right-of-way line of 19th Avenue, a distance of 712.65
feet;
THENCE North 89 degrees 57 minutes 32 seconds West, a distance of 150.00
feet (measured North 89 degrees 57 minutes 07 seconds West 150.25 feet);
THENCE South 00 degrees 05 minutes 35 seconds West, a distance of 150.00
feet (measured 149.97 feet) to a point on the existing Northerly
right-of-way line of Northern Avenue;
THENCE North 89 degrees 57 minutes 32 seconds West, (measured North 89
degrees 56 minutes 36 seconds West), 40.00 feet Northerly of and parallel
to the South line of said Section 36, and being along the existing
Northerly right-of-way line of Northern Avenue, a distance of 315.06 feet;
THENCE North 00 degrees 05 minutes 35 seconds (measured North 00 degrees 04
minutes 06 seconds East) and (measured North 00 degrees 25 minutes 09
seconds East) a distance of 90.00 feet (measured 89.89 feet) to a point of
curvature;
THENCE along a curve to the left, having a radius of 145.00 feet (measured
144.36 feet) and an interior angle of 45 degrees 00 minutes 00 seconds
(measured 45 degrees 13 minutes 58 seconds) a distance of 113.88 feet
(measured 113.97 feet) to a point of reverse curve;
THENCE along a curve to the right having a radius of 145.00 feet (measured
144.36 feet) and an interior angle of 45 degrees 00 minutes 00 seconds
(measured 45 degrees 13 minutes 58 seconds) a distance of 113.88 feet
(measured 113.97 feet) to a point of tangency;
THENCE North 00 degrees 05 minutes 35 seconds East (measured 00 degrees 06
minutes 55 seconds), a distance of 567.51 feet (measured 568.11 feet);
THENCE South 89 degrees 57 minutes 32 seconds East (measured South 89
degrees 52 minutes 45 seconds East), a distance of 550.00 feet (measured
550.04 feet) and measured 548.72 feet) to the Point of Beginning.