Exhibit 10.1
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PURCHASE AND SALE AGREEMENT
dated
November , 2001,
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by and between
TRIPLE NET PROPERTIES, L.L.C.,
a Virginia limited liability company
as Buyer,
and
UNITED STATES FIDELITY AND GUARANTY COMPANY,
a Maryland corporation
as Seller
TABLE OF CONTENTS
Page
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1. PURCHASE AND SALE........................................................1
2. PURCHASE PRICE...........................................................1
2.1 Deposit............................................................1
2.2 Independent Contract Consideration.................................2
2.3 Balance............................................................2
2.4 Adjustment for Prorations..........................................2
3. OPENING OF ESCROW........................................................2
4. ACTIONS PENDING CLOSING..................................................3
4.1 Due Diligence......................................................3
4.2 Title..............................................................7
5. DESCRIPTION OF PROPERTY..................................................8
5.1 The Improvements...................................................8
5.2 The Real Property..................................................8
5.3 The Personal Property..............................................9
5.4 The Intangible Property............................................9
6. CONDITIONS TO CLOSING....................................................9
6.1 Buyer's Conditions.................................................9
6.2 Failure of Buyer's Closing Conditions.............................11
6.3 Seller's Conditions...............................................11
6.4 Failure of Seller's Closing Conditions............................12
7. CLOSING.................................................................12
7.1 Closing Date......................................................12
7.2 Deliveries by Seller..............................................12
7.3 Deliveries by Buyer. delivered by Buyer at the Closing,...........13
7.4 Actions by Escrow Agent...........................................13
7.5 Prorations........................................................14
7.6 Closing Costs.....................................................16
7.7 Deliveries Outside of Escrow......................................16
8. SELLER'S REPRESENTATIONS AND WARRANTIES.................................17
8.1 Due Organization..................................................17
8.2 Seller's Authority; Validity of Agreements........................17
8.3 Leases............................................................17
8.4 Contracts.........................................................17
8.5 Violations of Laws................................................17
8.6 Litigation........................................................17
8.7 Zoning and Condemnation...........................................18
8.8 Seller's Knowledge...............................................18
8.9 Survival..........................................................18
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Table of Contents
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(continued)
Page
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9. BUYER'S REPRESENTATIONS AND WARRANTIES..................................18
9.1 Due Organization..................................................18
9.2 Buyer's Authority: Validity of Agreements.........................18
9.3 Survival..........................................................19
10. ADDITIONAL COVENANTS AND AGREEMENTS.....................................19
10.1 As-Is.............................................................19
10.2 Changes in Conditions.............................................20
10.3 Service and Management Contracts..................................20
10.4 Leases............................................................20
11. RISK OF LOSS............................................................20
11.1 Condemnation......................................................20
11.2 Casualty..........................................................21
12. REMEDIES................................................................21
12.1 Liquidated Damages................................................21
12.2 Default by Seller.................................................22
13. BROKERS.................................................................22
14. MISCELLANEOUS PROVISIONS................................................23
14.1 Governing Law.....................................................23
14.2 Entire Agreement..................................................23
14.3 Modification; Waiver..............................................23
14.4 Notices...........................................................23
14.5 Expenses..........................................................24
14.6 Assignment........................................................24
14.7 Severability......................................................25
14.8 Successors and Assigns, Third Parties.............................25
14.9 Counterparts......................................................25
14.10 Headings..........................................................25
14.11 Time of Essence...................................................25
14.12 Further Assurances................................................25
14.13 Number and Gender.................................................25
14.14 Construction......................................................25
14.15 Exhibits..........................................................25
14.16 Attorneys' Fees...................................................26
14.17 Business Days.....................................................26
14.18 Early Termination.................................................26
14.19 Waiver of Known Defaults..........................................26
14.20 DTPA WAIVER.......................................................26
14.21 Texas Real Estate License Act.....................................26
14.22 Exchange..........................................................27
14.23 Confidentiality...................................................27
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
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into as of November, 2001, (the "Execution Date"), by and between Triple Net
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Properties, L.L.C., a Virginia limited liability company ("Buyer"), and United
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States Fidelity and Guaranty Company, a Maryland corporation ("Seller"), for the
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purpose of setting forth the agreement of the parties and of instructing
Commonwealth Land Title Insurance Company ("Escrow Agent"), with respect to the
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transaction contemplated by this Agreement.
R E C I T A L S
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A. Seller is the owner of an undivided fee simple interest in those certain
parcels of real property respectively located at 8200 ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇ and 8333 Vicar Drive, respectively, in the City of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, as more particularly described on Exhibit "A" attached
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hereto (the "Land Parcel"), commonly known as the "Titan Building" and "Titan
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Plaza". The Land Parcel, together with all and singular property rights and
interests constituting the "Real Property" (as hereinafter defined), the
"Improvements," the "Leases," the "Personal Property," and the "Intangible
Property" (each as hereinafter defined), are sometimes collectively referred to
herein as the "Property."
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B. Seller desires to sell, transfer and convey the Property to Buyer, and
Buyer desires to purchase and acquire the Property from Seller, upon and subject
to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree, and
instruct Escrow Agent, as follows:
1. PURCHASE AND SALE.
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Subject to all of the terms and conditions of this Agreement, Seller agrees
to sell, transfer and convey to Buyer, and Buyer agrees to purchase and acquire
from Seller, the Property, upon the terms and conditions set forth herein.
2. PURCHASE PRICE.
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The purchase price of the Property (the "Purchase Price") shall equal Nine
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Million Three Hundred Thirty Thousand Dollars ($9,330,000.00), subject to
adjustment as hereinafter provided. The Purchase Price shall be payable as
follows:
2.1 Deposit. Concurrently with the "Opening of Escrow" (as hereinafter
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defined), Buyer shall deposit into "Escrow" (as hereinafter defined) the
sum of One Hundred Thousand
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Dollars ($100,000.00) (which amount, together with all additional sums
thereafter deposited and any and all interest earned thereon, shall
hereinafter be referred to as the "Deposit"), by wire transfer. Within two
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(2) Business Days following the expiration of the "Due Diligence Period"
(as hereinafter defined), Buyer shall deposit into Escrow an additional
amount of One Hundred Thousand Dollars ($100,000.00) (the "Additional
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Deposit") by wire transfer, such that the principal amount of the Deposit
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(exclusive of any earnings which may be accrued) shall be equal to Two
Hundred Thousand Dollars ($200,000.00). If the sale of the property is not
consummated for any reason other than the default of Seller, then the
Deposit shall be held and disbursed in accordance with the terms of this
Agreement. Escrow Agent shall invest the Deposit in money market accounts,
certificates of deposit or United States Treasury Bills as Buyer may
instruct from time to time, provided that such investments are federally
issued. At the "Closing" (as hereinafter defined), the Deposit shall be
paid to Seller and credited against the Purchase Price. Seller shall not be
responsible for, nor shall Seller bear the risk of loss of, the Deposit and
Seller shall not be responsible for the rate of return thereon.
2.2 Independent Contract Consideration. The amount of One Hundred and
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No/100 Dollars ($100.00) shall be paid to Seller by Buyer concurrently with
the deposit into Escrow of the Deposit, as consideration for Seller's
execution and delivery of this Agreement and for Buyer's right of review,
inspection and termination (the "Independent Contract Consideration"). The
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Independent Contract Consideration is independent of any other
consideration or payment provided for in this Agreement and,
notwithstanding anything to the contrary contained herein, is
non-refundable in all events.
2.3 Balance. Not later than 10:00 a.m., Pacific Standard time, of the
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"Closing Date" (as hereinafter defined), Buyer shall pay to Seller the
balance of the Purchase Price over and above the Deposit, by wire transfer
of immediately available federal funds, net of all prorations and
adjustments, as provided herein.
2.4 Adjustment for Prorations. On the Closing Date, Buyer shall receive as
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a credit against the Purchase Price an amount equal to the sum of all: (a)
unrefunded and unapplied security deposits which were paid by tenants of
the Property (collectively, "Tenants") to or for the account of Seller; (b)
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rentals already received by Seller attributable to the period from and
after the Closing Date; and (c) the amount, if any, by which prorated
amounts and "Closing Costs" (as hereinafter defined) allocated to Seller
pursuant to Sections 7.5.1 and 7.6 hereof exceed prorated amounts and
Closing Costs allocated to Buyer pursuant to Sections 7.5.1 and 7.6 hereof.
3. OPENING OF ESCROW.
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On or before the second (2nd) "Business Day" (as hereinafter defined) after
the Execution Date, Buyer and Seller shall cause an escrow ("Escrow") to be
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opened with Escrow Agent (the "Opening of Escrow") by delivery to Escrow Agent
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of a fully executed copy of this Agreement and Buyer shall deliver to Escrow
Agent the Deposit as provided in Section 2.1 hereof. Escrow Agent shall promptly
deliver to Buyer and Seller written notice of the date of the Opening of Escrow.
This Agreement shall constitute escrow instructions to Escrow Agent as well as
the agreement of the parties. Escrow Agent is hereby appointed and designated to
act as Escrow Agent and instructed to
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deliver, pursuant to the terms of this Agreement, the documents and funds to be
deposited into Escrow as herein provided. The parties hereto shall execute such
additional escrow instructions (not inconsistent with this Agreement as
determined by counsel for Buyer and Seller) as Escrow Agent shall deem
reasonably necessary for its protection, including Escrow Agent's general
provisions (as may be modified by Buyer, Seller and Escrow Agent). In the event
of any inconsistency between this Agreement and such additional escrow
instructions, the provisions of this Agreement shall govern.
4. ACTIONS PENDING CLOSING.
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4.1 Due Diligence.
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4.1.1 Property Documents.
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(a) On or before the third (3rd) Business Day after the
Execution Date (the "Document Delivery Date"), Seller shall,
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at Seller's sole cost and expense, provide to Buyer true,
correct and complete copies of all of the following
documents, to the extent that such documents exist and are
in Seller's possession (collectively, the "Delivered
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Documents"):
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(i) all leases and other occupancy agreements now in effect
at the Property, together will all amendments,
guaranties and other agreements pertaining thereto
(collectively, the "Leases");
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(ii) a current rent roll (the "Rent Roll") for the Property
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for the month preceding the Execution Date in the
format customarily prepared for Seller and showing
tenant names, vacant premises, commencement dates,
expiration dates of all Leases and a current schedule
of rent for each Lease;
(iii) a list of all security deposits held by Seller under
Leases;
(iv) operating statements for the Property for the last
calendar year and the current year-to-date;
(v) a list of currently delinquent Tenants under Leases, as
aging;
(vi) a copy of the general ledger for the Property, in
detail, for the past calendar year and the current
year-to-date;
(vii) a copy of Seller's common area maintenance budget and
operating recovery reconciliation statements for the
last calendar year and the current year to date;
(viii) a summary of utility expenses for the last calendar
year and the current year to date, as provided by the
local providers of water / sewer and gas / electricity,
or copies of the bills from such providers for such
period;
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(ix) a copy of the ad valorem tax statement for the Property
for the years 1999 and 2000;
(x) copies of any hazardous materials reports prepared for
Seller during Seller's period of ownership;
(xi) copies of any roof reports;
(xii) a list of any outstanding litigation affecting the
Property;
(xiii) copies of the "Service Contracts" (as hereinafter
defined); and
(xiv) a list of the Personal Property.
(b) Prior to the expiration of the Document Delivery Date,
Seller shall make available to Buyer for its review and
copying, at Buyer's sole cost and expense, during normal
business hours and upon reasonable advance notice to Seller,
at the management office of the Property, true, correct and
complete copies of all reports, studies, site plans,
surveys, maps, certificates of occupancy, property photos
and other materials or information relating to the Property,
to the extent such items exist and are in Seller's
possession or control (collectively, together with the
Delivered Documents, the "Property Documents").
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(c) With respect to any reports or other information prepared by
third parties provided to Buyer pursuant to (a) and/or (b)
of this Section 4.1.1, Seller is not making any
representations or warranties, implied or otherwise, as to
the accuracy of the factual information provided or the
conclusions formed by the consultants who prepared such
reports or information, or as to the skill and care taken by
the consultant in preparing the same. Seller will not be
responsible for conditions or consequences arising from
relevant facts that were concealed, withheld, or not fully
disclosed by any consultant, any regulatory or governmental
agency, or from persons interviewed as part of the
preparation of any such report. Buyer also acknowledges that
the facts and conditions referenced in any of such reports
may change over time and the conclusions and recommendations
set forth therein are applicable only to the facts and
conditions as described therein. Buyer should use good faith
efforts in determining whether any of such reports are
accurate.
(d) Seller will instruct Seller's property manager to cooperate
fully with Buyer with respect to the foregoing review items
subject to the provisions of this Section 4.1.1.
Notwithstanding the foregoing, Buyer shall have no right to
inspect (i) any internal memoranda or reports prepared by or
on behalf of Seller which Seller deems confidential, nor
(ii) any appraisals of the Property prepared by or on behalf
of Seller. In the event this Agreement shall terminate for
any
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or no reason, Buyer agrees to return to Seller, no later
than two (2) days after request, all documents and other
materials delivered to Buyer hereunder.
(e) All information made available by Seller to Buyer in
accordance with this Agreement or obtained by Buyer in the
course of its investigations shall be treated as
confidential information by Buyer, and, prior to the
purchase of the Property by Buyer, Buyer shall use its best
efforts to prevent its consultants, agents and employees
from divulging such information to any unrelated third
parties except as reasonably necessary to third parties
engaged by Buyer for the limited purpose of analyzing and
investigating such information for the purpose of
consummating the transaction contemplated by this Agreement.
4.1.2 Buyer's Diligence Tests. At all reasonable times during the
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thirty (30) day period commencing on the later to occur of the
Execution Date or the Document Delivery Date (the "Due Diligence
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Period"), Buyer, its agents and representatives shall be entitled at
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Buyer's sole cost and expense to:
(a) enter onto the Property during normal business hours and
upon reasonable advance notice to Seller, to perform any
inspections, investigations, studies and tests of the
Property (including, without limitation, physical,
structural, mechanical, architectural, engineering, soils,
geotechnical and environmental tests that Buyer deems
reasonable);
(b) cause an environmental assessment of the Property to be
performed, upon reasonable notice to Seller;
(c) review all Property Documents; and
(d) investigate such other matters as Buyer may desire.
Buyer's entry onto and inspections of the Property in accordance with
the terms hereof shall not damage the Property in any respect. Any
entry by Buyer onto the Property shall be subject to, and conducted in
accordance with, all applicable laws and the terms of the Leases so as
to avoid any interference with the occupancy of the Property and to
avoid any disturbance of any of the Tenants of the Property. A
representative of Seller shall have the right to be present during any
physical tests, inspections and investigation at or about the
Property. Buyer has no right to make any physical alterations to the
Property without Seller's written consent. If Buyer or its
representatives undertake any borings or other disturbances of the
soil of the Property, the soil shall be re-compacted and Buyer shall
otherwise restore any damage to the Property to its condition
immediately before any such borings or other disturbances were
undertaken, and Buyer shall obtain, at Buyer's sole cost and expense,
a certificate from a licensed soils engineer that certifies that the
soil has
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been re-compacted to such condition. Any soil, waste or other
materials removed during any environmental testing must be properly
disposed of by Buyer at Buyer's sole cost, even though Buyer may elect
to terminate this Agreement. Buyer shall keep the Property free and
clear of any mechanic's or materialmen's liens arising out of any
entry onto or inspection of the Property. The Buyer's obligations
pursuant to this Section 4.1.2 shall survive the Closing or the
earlier termination of this Agreement.
4.1.3 Insurance and Indemnity. Buyer agrees that from the Execution
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Date through the Due Diligence Termination Date, Buyer shall carry, or
cause its agent to carry, workers' compensation and general liability
insurance in the amount of $1,000,000 per occurrence, which insurance
shall name Seller as an additional insured; upon request, Buyer shall
provide Seller with proof of such insurance prior to commencing
Buyer's physical inspections of the Property. Buyer shall indemnify,
protect, defend and hold Seller harmless from and against any and all
claims (including, without limitation, claims for mechanic's liens or
materialmen's liens), causes of action, demands, obligations, losses,
damages, liabilities, judgements, costs and expenses (including,
without limitation, reasonable attorneys' fees, charges and
disbursements) (collectively, "Claims") in connection with or arising
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out of any inspections carried on by or on behalf of Buyer pursuant to
the terms hereof; provided, however, that Buyer shall not indemnify
Seller for any Claims solely caused by Seller's negligence or willful
misconduct. In the event that this Agreement is terminated for any
reason, (i) Buyer shall repair any damage to the Property caused by
its entry thereon and restore the same to the condition in which it
existed prior to such entry and (ii) Buyer shall deliver to Seller,
upon Seller's request and without charge therefor, the results and
copies of any and all inspections, studies, tests, surveys, or other
reports made by or for Buyer with respect to the Property. The
provisions of this Section 4.1.3 shall survive the Closing or the
earlier termination of this Agreement.
4.1.4 Buyer's Termination Right. Buyer shall have the right at any
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time on or before the last day of the Due Diligence Period (the "Due
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Diligence Termination Date") to terminate this Agreement if Buyer
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determines in its sole and absolute discretion that the Property is
not acceptable to Buyer. In the event that Buyer fails to deliver a
written notice to Seller and Escrow Agent waiving its termination
right under this Section 4.1.4 on or before the Due Diligence
Termination Date and giving notice of Buyer's intention to proceed
with the acquisition of the Property, then (a) Escrow Agent shall
return the Deposit to Buyer, (b) the parties shall equally share the
cancellation charges of Escrow Agent and "Title Company" (as
hereinafter defined), if any, and (c) this Agreement shall
automatically terminate and be of no further force or effect and
neither party shall have any further rights or obligations hereunder,
other than pursuant to any provision hereof which expressly survives
the termination of this Agreement. In the event that Buyer delivers a
written notice to Seller and Escrow Agent waiving its termination
right hereunder and giving notice of Buyer's intention to proceed with
the acquisition of the Property on or before the Due Diligence
Termination Date, then Buyer shall be deemed to have unconditionally
waived its termination right hereunder and this Agreement shall
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continue in full force and effect, and the Additional Deposit shall be
delivered to the Escrow Agent by Buyer in accordance with the
provisions of Section 2.1.
4.1.5 Financing Contingency. Buyer shall have a period of forty-five
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(45) days from the date which is the later to occur of the Execution
Date or the Document Delivery Date (the "Financing Contingency
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Period") to obtain a commitment for financing of the acquisition of
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the Property on terms acceptable to Buyer. If Buyer is unable to
obtain such a commitment for financing on terms acceptable to Buyer,
Buyer shall have the right to terminate this Agreement at any time on
or before the last day of the Financing Contingency Period. In the
event that Buyer fails to deliver a written notice to Seller and
Escrow Agent waiving its termination right under this Section 4.1.5 on
or before 5:00 p.m., Central Standard time, of the last day of the
Financing Contingency Period, this Agreement shall automatically
terminate and be of no further force and effect, subject to and except
for Buyer's obligations under Section 4.1.3 and any other provision
hereof which expressly survives the termination of this Agreement, and
Escrow Agent shall return to Buyer the Deposit and Seller and Buyer
shall evenly divide the cancellation charges of the Escrow Agent and
the Title Company, if any. In the event that Buyer delivers a written
notice to Seller and Escrow Agent waiving its termination right under
this Section 4.1.5 by 5:00 p.m., Central Standard time, of the last
day of the Financing Contingency Period, this Agreement shall remain
in full force and effect and Buyer shall no longer have a right to
terminate this Agreement pursuant to this Section 4.1.5.
4.2 Title.
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4.2.1 Deliveries by Seller. Not later than fourteen (14) days
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following the Execution Date, Seller shall, at its sole cost and
expense, cause to be delivered to Buyer (a)(i) a current commitment
(the "Title Commitment") for a standard coverage owner's policy of
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title insurance (the "Title Policy") for the Real Property issued by
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Commonwealth Land Title Insurance Company, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, "Title Company") and (ii)
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legible copies of all documents referenced as exceptions therein
(collectively, the "Underlying Documents"), and (b) a current as-built
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survey of the Real Property (the "Survey") prepared in accordance with
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and satisfying the minimum standards of ALTA, in a form and certified
as of a date satisfactory to the Title Company to delete standard
survey exceptions from the Title Policy. The Title Commitment, the
Underlying Documents and the Survey shall be collectively referred to
herein as the "Title Documents."
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4.2.2 Buyer's Review of Title. Buyer shall have a period of ten (10)
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days following Buyer's receipt of the Title Commitment, Underlying
Documents and Survey to notify Seller in writing of any objection
which Buyer may have to any matters reported or shown in the Title
Documents or any updates thereof ("Buyer's Objection Letter")
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(provided, however, that if any such updates are received by Buyer,
Buyer shall have an additional five (5) Business Days following
Buyer's receipt of such update and copies of all documents referenced
therein to notify Seller
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of objections to items shown on any such update which were not
disclosed on the previously delivered Title Documents). In addition to
the Leases, matters reported in or shown by the Title Documents (or
any updates thereof) and not timely objected to by Buyer as provided
above shall be deemed to be "Permitted Exceptions." Seller shall have
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no obligation to cure or correct any matter objected to by Buyer other
than deed of trust liens and liens securing the payment of money
having an outstanding amount of Fifty Thousand and No/100 Dollars
($50,000.00) or less (other than inchoate liens for taxes not yet due
and payable). However, on or before the fifth (5th) Business Day
following Seller's receipt of Buyer's Objection Letter, Seller may
elect, by delivering written notice of such election to Buyer and
Escrow Agent ("Seller's Response") whether to cause Title Company to
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remove or insure over any matters objected to in Buyer's Objection
Letter. If Seller fails to deliver Seller's Response within the time
frame set forth above, it shall be deemed to be an election by Seller
not to cause Title Company to so remove or insure over such
objections. If Seller elects not to cause Title Company to so remove
or insure, then Buyer must elect, by delivering written notice of such
election to Seller and Escrow Agent on or before the earlier to occur
of (a) the fifth (5th) Business Day following Buyer's receipt of
Seller's Response or (b) if no Seller's Response is received by Buyer,
the fifth (5th) Business Day following the date on which Seller shall
have been deemed to have responded, as provided above, to: (i)
terminate this Agreement (in which case Escrow Agent shall return the
Deposit to Buyer) and Seller shall pay the cancellation charges of
Escrow Agent and Title Company, if any, and neither party shall
thereafter have any rights or obligations to the other hereunder,
other than pursuant to any provision hereof which expressly survives
the termination of this Agreement); or (ii) proceed to a timely
Closing whereupon such objected to exceptions or matters shall be
deemed to be Permitted Exceptions. In the event that Buyer fails to
make such election on a timely basis, then Buyer shall be deemed to
have elected to proceed to a timely Closing in accordance with the
preceding clause (ii).
4.2.3 Condition of Title at Closing. Upon the Closing, Seller shall
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sell, transfer and convey to Buyer fee simple title to the Real
Property by a duly executed and acknowledged special warranty deed in
the form of Exhibit "B" attached hereto (the "Deed"), subject only to
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the Permitted Exceptions.
5. DESCRIPTION OF PROPERTY.
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5.1 The Improvements. As used herein, the term "Improvements" shall mean
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all of Seller's right, title and interest in and to all buildings,
improvements, structures and fixtures now or hereafter located on the Land
Parcel.
5.2 The Real Property. As used herein, the term "Real Property" shall mean,
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collectively, all of Seller's right, title and interest in and to: (a) the
Land Parcel; (b) the Improvements; (c) all apparatus, equipment and
appliances affixed to and used in connection with the operation or
occupancy of the Property and/or any of the Improvements (such as heating,
air conditioning or mechanical systems and facilities used to provide any
utility services, refrigeration, ventilation, waste disposal or other
services) and now or hereafter located on or in the Property and/or any of
the Improvements; and (d) all of Seller's rights,
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privileges and easements appurtenant to or used in connection with the
Property and/or any of the Improvements, including, without
limitation, all minerals, oil, gas and other hydrocarbon substances,
all development rights, air rights, water, water rights and water
stock relating to the Land Parcel, all strips and gores, streets,
alleys, easements, rights-of-way, public ways, or other rights of
Seller appurtenant, adjacent or connected to the Land Parcel.
5.3 The Personal Property. As used herein, the term "Personal Property"
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shall mean all of Seller's right, title and interest in and to that certain
tangible personal property, equipment, machinery and supplies owned or
leased by Seller and situated at the Real Property and used by Seller
exclusively in connection with the use, operation, maintenance or repair of
all or any portion of the Real Property as of the Closing Date.
5.4 The Intangible Property. As used herein, the term "Intangible Property"
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shall mean all of Seller's right, title and interest in and to that certain
intangible property owned by Seller and used by Seller exclusively in
connection with all or any portion of the Real Property and/or the Personal
Property, including, without limitation, all of Seller's right, title and
interest, if any, in and to: (a) the Leases, (b) all contracts identified
on Exhibit "C" attached hereto (collectively, the "Service Contracts"), but
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only to the extent that such are assignable, all books, records, reports,
test results, environmental assessments, if any, as-built plans,
specifications and other similar documents and materials relating to the
use, operation, maintenance, repair, construction or fabrication of all or
any portion of the Real Property and for the Personal Property; (c) all
transferable business licenses, architectural, site, landscaping or other
permits, applications, approvals, authorizations and other entitlements
affecting any portion of the Real Property and Personal Property; and (d)
all transferable guarantees, warranties and utility contracts relating to
all or any portion of the Real Property.
6. CONDITIONS TO CLOSING.
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6.1 Buyer's Conditions. The obligation of Buyer to complete the transaction
------------------
contemplated by this Agreement is subject to the following conditions
precedent (and conditions concurrent, with respect to deliveries to be made
by the parties at the Closing) (the "Buyer's Closing Conditions"), which
--------------------------
conditions may be waived, or the time for satisfaction thereof extended, by
Buyer only in a writing executed by Buyer (provided, however, that Buyer's
acceptance of the Deed shall be deemed to be a waiver of any unsatisfied
conditions regardless of whether Buyer executes a separate written
instrument to that effect at the Closing):
6.1.1 Title. Title Company shall be prepared and irrevocably committed
-----
to issue to Buyer (with an effective date not earlier than the Closing
Date), a Texas form of owner's policy of title insurance in favor of
Buyer for the Real Property (a) showing fee title to the Real Property
vested in Buyer, (b) with liability coverage in an amount equal to the
Purchase Price, (c) with those endorsements reasonably requested by
Buyer (provided that such endorsements are available in the State of
Texas and are paid for by Buyer in accordance with the terms hereof)
and (d) containing no exceptions other than the Permitted Exceptions
(the "Owner's Title Policy").
--------------------
Page 9
6.1.2 Seller's Due Performance. All of the representations and
------------------------
warranties of Seller set forth in this Agreement shall be true,
correct and complete in all material respects as of the Closing Date,
and Seller, on or prior to the Closing Date, shall have complied with
and/or performed all of the obligations, covenants and agreements
required on the part of Seller to be complied with or performed
pursuant to the terms of this Agreement.
6.1.3 Physical Condition of Property. Subject to the terms of Section
------------------------------
11 hereof, the physical condition of the Property shall be the same on
the Closing Date as on the Execution Date, except for reasonable wear
and tear and any damages due to any act of Buyer or Buyer's
representatives.
6.1.4 Bankruptcy. No action or proceeding shall have been commenced by
----------
or against Seller under the federal bankruptcy code or any state law
for the relief of debtors or for the enforcement of the rights of
creditors, and no attachment, execution, lien or levy shall have
attached to or been issued with respect to Seller's interest in the
Property or any portion thereof.
6.1.5 Tenant Estoppels. Seller agrees to furnish each Tenant under the
----------------
Leases with the form of Tenant estoppel required by Buyer's lender and
to request that each Tenant execute and return the same to Seller,
provided that Buyer shall provide to Seller the required form of
estoppel certificate and subordination, non-disturbance, and
attornment agreement as soon as available but not later than thirty
(30) days prior to the Closing Date. Buyer shall have no obligation to
complete the transaction contemplated by this Agreement unless, at
least five (5) days prior to the closing, Seller shall have delivered
to Buyer current estoppel certificates and subordination,
non-disturbance and attornment agreements for all "Major Tenants" (as
hereinafter defined); provided, however, in no event shall Seller's
failure to obtain such certificates and agreements constitute a
default by Seller under this Agreement, including but not limited to
the provisions of Section 6.2.2 and Section 12.2, except that Buyer
shall be entitled to exercise its rights and remedies provided under
Section 6.2 (other than the right provided in Section 6.2.2 to pursue
its remedies under Section 12.2). As used in this Agreement, "Major
-----
Tenants" shall mean those tenants identified on Exhibit "H" attached
------- -----------
hereto (which in the aggregate represent approximately 82% of the
currently leased space of the Property).
6.1.6 Leases. At the Closing, Seller shall assign all of its rights
------
and remedies under the Leases (including, without limitation, its
right to any security deposits and prepaid rent) to Buyer, and Buyer
shall assume the obligations of Seller with respect thereto, pursuant
to an assignment and assumption of leases and security deposits in the
form of Exhibit "D" attached hereto (the "Assignment of Leases"). The
----------- --------------------
Assignment of Leases shall include a provision whereby (a) Seller
shall indemnify, protect and hold Buyer harmless from and against any
and all claims with respect to liabilities or obligations of the
landlord under the Leases arising during Seller's period of ownership
and (b) Buyer shall indemnify, protect, defend and hold Seller
harmless from and against any and all Claims with respect to
liabilities or obligations
Page 10
of the landlord under the Leases arising during Buyer's period of
ownership, in each case as set forth in the form of Assignment of
Leases attached hereto as Exhibit "D".
-----------
6.1.7 ▇▇▇▇ of Sale. At the Closing, Seller shall transfer to Buyer
------------
(and Buyer shall assume Seller's obligations, if any, with respect to)
all of the Personal Property and the Intangible Property (other than
the Leases and any management agreement pertaining to the Property),
pursuant to a ▇▇▇▇ of sale, assignment and assumption in the form of
Exhibit "E" attached hereto (the "▇▇▇▇ of Sale"). Any existing
----------- ------------
management agreement pertaining to the Property shall be terminated by
Seller as of the Closing Date.
6.1.8 Non-Foreign Affidavit. At the Closing, Seller shall deliver to
---------------------
Buyer a non-foreign affidavit in the form of Exhibit "F" attached
------------
hereto executed by Seller (the "Non-Foreign Affidavit").
---------------------
6.2 Failure of Buyer's Closing Conditions. If any of Buyer's Closing
-------------------------------------
Conditions have not been fulfilled within the applicable time periods,
Buyer may:
6.2.1 waive the Buyer's Closing Condition and close Escrow in
accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
6.2.2 terminate this Agreement by written notice to Seller and Escrow
Agent, in which event Escrow Agent shall return the Deposit to Buyer
(subject to the provisions of Section 12.2), all other documents,
------------
instruments and funds delivered into Escrow shall be returned to the
party that delivered the same into Escrow, Seller shall pay for all of
the cancellation charges of Title Company and Escrow Agent, if any,
and to the extent that the failure of any applicable Buyer's Closing
Condition is caused by a Seller default, Buyer shall be entitled to
pursue its rights and remedies pursuant to the terms of Section 12.2
hereof.
6.3 Seller's Conditions. The obligation of Seller to complete the
-------------------
transaction contemplated by this Agreement is subject to the following
conditions precedent (and conditions concurrent, with respect to deliveries
to be made by the parties at the Closing) (the "Seller's Closing
----------------
Conditions") which conditions may be waived, or the time for satisfaction
----------
thereof extended, by Seller only in a writing executed by Seller:
6.3.1 Buyer's Due Performance. All of the representations and
-----------------------
warranties of Buyer set forth in this Agreement shall be true, correct
and complete in all material respects as of the Closing Date, and
Buyer, on or prior to the Closing Date, shall have complied with
and/or performed all of the obligations, covenants and agreements
required on the part of Buyer to be complied with or performed
pursuant to the terms of this Agreement.
6.3.2 Bankruptcy. No action or proceeding shall have been commenced by
----------
or against Buyer or any of its affiliates under the federal bankruptcy
code or any state law for the relief of debtors or for the enforcement
of the rights of creditors.
Page 11
6.3.3 Deliveries. Buyer shall have delivered to Escrow Agent or
----------
Seller, as the case may be, such documents or instruments as are
required to be delivered by Buyer pursuant to the terms of this
Agreement.
6.4 Failure of Seller's Closing Conditions. If any of Seller's Closing
--------------------------------------
Conditions have not been fulfilled within the applicable time periods,
Seller may:
6.4.1 waive the Seller's Closing Condition and close in accordance
with this Agreement, without adjustment or abatement of the Purchase
Price; or
6.4.2 terminate this Agreement by written notice to Buyer and Escrow
Agent, in which event (a) Escrow Agent shall deliver the Deposit to
Seller (which Seller shall retain as liquidated damages, as its sole
and exclusive remedy hereunder, in accordance with the terms of
Section 12 hereof), (b) Escrow Agent shall return all other documents,
instruments and funds delivered into Escrow to the party that
delivered the same into Escrow and (c) Buyer shall pay for all of the
cancellation charges of Title Company and Escrow Agent, if any.
7. CLOSING.
-------
7.1 Closing Date. Subject to the provisions of this Agreement, Closing
------------
shall take place on the forty-fifth (45th) day after the Due Diligence
Termination Date, or on such other date as the parties hereto may agree. As
used the following terms shall have the following meanings: (a) the
"Closing" means the consummation of the sale and purchase of the Property
-------
pursuant to the terms of this Agreement; and (b) the "Closing Date" shall
mean the date up which the Closing actually occurs.
7.2 Deliveries by Seller. On or before 10:00 a.m., Pacific Standard time,
--------------------
of the Closing Date, Seller, at its sole cost and expense, shall deliver or
cause to be delivered into Escrow the following documents and instruments,
each dated as of the Closing Date, in addition to all other items and
payments required by this Agreement to be delivered by Seller at the
Closing:
7.2.1 Deed. The original executed and acknowledged Deed conveying the
----
Real Property to Buyer;
7.2.2 Non-Foreign Affidavit. The original executed Non-Foreign
---------------------
Affidavit;
7.2.3 Assignment of Leases. Two (2) original executed counterparts of
--------------------
the Assignment of Leases.
7.2.4 ▇▇▇▇ of Sale. Two (2) original executed counterparts of the ▇▇▇▇
------------
of Sale;
7.2.5 Seller's Certificate. An original certificate executed by Seller
--------------------
certifying that the representations and warranties of Seller set forth
in this Agreement are true, correct and complete in all material
respects as of the Closing Date.
Page 12
7.2.6 Proof of Authority. Such proof of Seller's authority and
------------------
authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may be
reasonably required by Title Company or Buyer; and
7.2.7 Keys. All keys to all locks on the Property and, to the extent
----
in Seller's possession, original counterparts of all Leases, Service
Contracts and other documents included within the Property. The items
referred to in this Section 7.2.6 may be delivered to the Property
rather than at the Closing.
7.2.8 Current Rent Roll. A current rent roll in the form described in
-----------------
Section 4.1.1(a)(ii).
--------------------
7.2.9 Other. Such other documents and instruments, signed and properly
-----
acknowledged by Seller, if appropriate, as may be reasonably required
by Buyer, Title Company, Escrow Agent or otherwise in order to
effectuate the provisions of this Agreement and the Closing of the
transaction contemplated herein.
7.3 Deliveries by Buyer. On or before 10:00 a.m., Pacific Standard time, of
-------------------
the Closing Date, Buyer, at its sole cost and expense, shall deliver or
cause to be delivered into Escrow the following funds, documents and
instruments, each dated as of the Closing Date, in addition to all other
items and payments required by this Agreement to be delivered by Buyer at
the Closing,
7.3.1 Purchase Price. Cash in an amount equal to the sum of the
--------------
Purchase Price and all of the Buyer's Closing Costs (and otherwise
sufficient to close the transaction contemplated herein);
7.3.2 Assignment of Leases. Two (2) original executed counterparts of
--------------------
the Assignment of Leases;
7.3.3 ▇▇▇▇ of Sale. Two (2) original executed counterparts of the ▇▇▇▇
------------
of Sale;
7.3.4 Proof of Authority. Such proof of Buyer's authority and
------------------
authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be
reasonably required by Title Company or Seller; and
7.3.5 Other. Such other documents and instruments, signed and properly
-----
acknowledged by Buyer, if appropriate, as may reasonably be required
by Seller, Title Company, Escrow Agent or otherwise in order to
effectuate the provisions of this Agreement and the Closing of the
transaction contemplated herein.
7.4 Actions by Escrow Agent. Provided that Escrow Agent shall not have
-----------------------
received written notice from Buyer or Seller of the failure of any
condition to the Closing or of the termination of the Escrow and this
Agreement, when Buyer and Seller have deposited into
Page 13
Escrow the documents and funds required by this Agreement and Title Company
is irrevocably and unconditionally committed to issue the Owner's Title
Policy in accordance with the terms hereof, Escrow Agent shall, in the
order and manner herein below indicated, take the following actions:
7.4.1 Funds. Disburse all funds as follows:
-----
7.4.1.1 pursuant to the "Closing Statement" (as hereinafter
defined), retain for Escrow Agent's own account all escrow
fees and costs, disburse to Title Company the fees and
expenses incurred in connection with the issuance of the
Owner's Title Policy and disburse to any other persons or
entities entitled thereto the amount of any other Closing
Costs;
7.4.1.2 disburse to Seller an amount equal to the Purchase Price,
less or plus the net debit or credit to Seller by reason of
the prorations and allocations of Closing Costs provided for
herein by wire transfer in accordance with Seller's
instructions or, in the absence of any contrary instruction
from Seller, to Seller's account at: ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇ #
▇▇▇▇▇▇▇▇▇, ▇▇▇ - ▇▇▇&▇ CO, Account No. ▇▇▇▇▇▇▇▇; and
7.4.1.3 disburse to the party who deposited the same any
remaining funds in the possession of Escrow Agent after
payments pursuant to Sections 7.4.1.1 and 7.4.1.2 above have
been completed;
7.4.2 Recording. Cause the Deed and any other documents which the
---------
parties hereto may mutually direct to be recorded in the Official
Records and obtain conformed copies thereof for distribution to Buyer
and Seller;
7.4.3 Delivery of Documents. Deliver: (a) to Seller (i) one original
---------------------
of all documents deposited into Escrow (other than the Deed and the
Non-Foreign Affidavit, and (ii) one conformed copy of each document
recorded pursuant to the terms hereof; and (b) to Buyer, (i) one
originals of all documents deposited into Escrow, (ii) the original
Non-Foreign Affidavit and (iii) one conformed copy of each document
recorded pursuant to the terms hereof; and
7.4.4 Owner's Title Policy. Cause Title Company to issue to Buyer the
--------------------
Owner's Title Policy.
7.5 Prorations.
----------
7.5.1 Rentals, revenues, and other income, if any, from the Property,
taxes, assessments, improvement bonds, Service Contract fees, utility
costs and other expenses affecting the Property shall be prorated
between Buyer and Seller as of the Closing Date based on a 365 day
year. For purposes of calculating prorations, Buyer shall be deemed to
be title holder of the Property, and therefore entitled to the income
and responsible for the expenses, after 12:01 a.m., Central Standard
time, on the Closing Date. Delinquent rentals as of the Closing Date
shall not be prorated, but
Page 14
when paid to Buyer shall be applied and delivered by Buyer as follows:
first, to the payment of rent currently due and payable, next, to any
delinquent rent owing to Buyer, and third, to Seller. After the
Closing, Buyer shall use commercially reasonable efforts to collect
delinquent rentals on behalf of Seller, provided, however, Buyer shall
have no obligation to ▇▇▇ or evict any tenants who are delinquent in
the payment of rents. All non-delinquent real estate taxes or
assessments on the Property shall be prorated based on the actual
current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet been received by
Seller by the Closing Date, the parties shall make any necessary
adjustment after the Closing by cash payment to the party entitled
thereto so that Seller shall have borne all real property taxes
allocable to the period prior to the Closing and Buyer shall bear all
real property taxes allocable to the period from and after the
Closing. If any tenant under a Lease is entitled to an allowance for
tenant improvements or other Lease concession, whether pursuant to a
new Lease or an expansion or renewal of an existing Lease, such
allowance or concession (other than rental rate reductions) shall be
allocated over the term of the Lease expansion or renewal, and
prorated between Seller and Buyer on a proportional basis based on the
period that such Tenant is in possession of the leased premises and
making payments of rent under such Lease, expansion or renewal, so
that Seller will bear all such expenses allocable to such period prior
to the Closing and Buyer shall bear all expenses allocable to such
period after the Closing. Any deposits held by third parties for the
account of Seller in connection with the Property, including but not
limited to utility deposits, shall not be prorated between the parties
or transferred to Buyer but shall belong to and remain the property of
Seller. If any expenses attributable to the Property and allocable to
the period prior to the Closing are discovered or billed after the
Closing, the parties shall make any necessary adjustment after the
Closing by cash payment to the party entitled thereto so that Seller
shall have borne all expenses allocable to the period prior to the
Closing and Buyer shall bear all expenses allocable to the period from
and after the Closing. The provisions of this Section 7.5.1 shall
survive the Closing. To the extent that any of the Leases provide for
the reconciliation of estimated operating costs paid by Tenants, Buyer
shall determine such reconciliation as of the calendar year-end
following the Closing Date and any amounts collected or payable by
Buyer which either exceed or are less than the actual recoverable
operating costs paid by Tenants, as applicable, shall be prorated
between Buyer and Seller as of the Closing Date, such that amounts
collected by Buyer from Tenants in reconciliation which are
attributable to the period of Seller's ownership shall be reimbursed
to Seller by Buyer, and amounts refundable to Tenants and which are
attributable to Seller's period of ownership shall be refunded to
Buyer by Seller. Buyer and Seller will settle such proration within
120 days after the actual calendar year-end reconciliation.
7.5.2 Five (5) Business Days prior to the Closing Date, Escrow Agent
shall deliver to each of the parties for their review and approval a
preliminary closing statement (the "Preliminary Closing Statement")
-----------------------------
setting forth: (a) the proration amounts allocable to each of the
parties pursuant to Section 7.5 hereof, and (b) the Closing Costs
allocable to each of the parties pursuant to Section 7.6 hereof. Based
on each of the party's comments, if any, regarding the Preliminary
Closing Statement,
Page 15
Escrow Agent shall revise the Preliminary Closing Statement and
deliver a final, signed version of a closing statement to each of the
parties at the Closing (the "Closing Statement").
-----------------
7.6 Closing Costs. Each party shall pay its own costs and expenses arising
-------------
in connection with the Closing (including, without limitation, its own
attorney and advisor fees), except the following costs (the "Closing
-------
Costs"), which shall be allocated between the parties as follows:
-----
7.6.1 Escrow Agent's escrow fees and costs, which shall be paid
one-half (1/2) by Seller and one-half (1/2) by Buyer;
7.6.2 the incremental cost of the basic premium of the Owner's Title
Policy for coverage thereunder in excess of $9,080,000 and the cost of
any endorsements or amendments to the Owner's Title Policy (other than
those endorsements which Seller has agreed to pay pursuant to this
Agreement), which shall be paid by Buyer;
7.6.3 the basic premium of the Owner's Title Policy to extent of the
first $9,080,000 of coverage thereunder, and the Survey, which shall
be paid by Seller; and
7.6.4 all recording fees attributed to the recordation of the Deed and
any mortgage loan documentation, which shall be paid by Buyer.
7.7 Deliveries Outside of Escrow. Seller shall deliver possession of the
----------------------------
Property, subject only to the Leases and the other Permitted Exceptions, to
Buyer upon the Closing. Further, Seller hereby covenants and agrees to
deliver to Buyer, on or prior to the Closing, the following items:
7.7.1 Intangible Property. The Intangible Property, including, without
-------------------
limitation, the original Property Documents;
7.7.2 Personal Property. The Personal Property, including, without
-----------------
limitation, any and all keys, pass cards, remote controls, security
codes, computer software and other devices relating to access to the
Improvements; and
7.7.3 Notices.
-------
7.7.3.1 Notices to Tenants. A letter, duly executed by Seller,
------------------
dated as of the Closing Date and addressed to all Tenants,
informing such Tenants of the transfer of the Property and
the assignment of the Leases to Buyer, together with an
instruction to pay all amounts due or to become due under
the Leases to Buyer; and
7.7.3.2 Service Contracts Notices. A letter to all of the vendors
-------------------------
of the Service Contracts, duly executed by Seller, dated as
of the Closing Date and addressed to the Service Contract
vendors, informing such vendors of the assignment of the
Service Contracts to Buyer.
Page 16
8. SELLER'S REPRESENTATIONS AND WARRANTIES.
----------------------------------------
Seller represents and warrants to and agrees with Buyer, as of the
Execution Date and as of the Closing Date, as follows:
8.1 Due Organization. Seller is a corporation duly organized and existing
----------------
in good standing under the laws of the State of Maryland and qualified to
do business in the State of Texas.
8.2 Seller's Authority; Validity of Agreements. Seller has full right,
------------------------------------------
power and authority to sell the Property to Buyer as provided in this
Agreement and to carry out its obligations hereunder. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
Seller have the legal power, right and actual authority to bind Seller to
the terms hereof and thereof. This Agreement is, and all other instruments,
documents and agreements to be executed and delivered by Seller in
connection with this Agreement shall be, duly authorized, executed and
delivered by Seller and shall be valid, binding and enforceable obligations
of Seller (except as enforcement may be limited by bankruptcy, insolvency
or similar laws) and do not, and as of the Closing Date will not, violate
any provisions of any agreement or judicial order to which Seller is a
party or to which Seller or the Property is subject.
8.3 Leases. Subject to the terms of Section 10.4 hereof, the schedule
------
attached hereto as Exhibit "G" is in all material respects a true, correct
-----------
and complete list of all of the Leases currently in effect and, to Seller's
Knowledge, (i) the Rent Roll delivered to Buyer pursuant to Section
-------
4.1.1(a)(ii) is true, correct and complete in all material respects as of
------------
the date thereof, and (ii) there are no leasing commissions or costs
relating to the leasing of any of the Property which will be outstanding or
owed at the time of the Closing (other than the payment of the remaining
one-half of a leasing commission which will become owing with respect to
the Lease to Pixel Magic Imaging upon such tenant's occupancy of its leased
premises, the payment of which shall be Seller's responsibility. Other than
the Leases (together with all amendments, modifications and guarantees
thereof), Seller has not directly entered into any leases or subleases of
the Property.
8.4 Contracts. Subject to the terms of Section 10.3 hereof, except as set
---------
forth on the schedule attached hereto as Exhibit "C", neither Seller nor
-----------
any of its agents has executed any service, maintenance, repair,
management, supply or other contracts (including, without limitation, any
service contracts) affecting the Property which would be binding on Buyer
subsequent to the Closing.
8.5 Violations of Laws. To "Seller's Knowledge" (as hereinafter defined),
------------------
Seller has not received any written notices of any material violations of
any laws, ordinances, orders or requirements of any governmental authority,
agency or officer having jurisdiction against or affecting the Property,
which have not previously been complied with.
8.6 Litigation. (a) There are no actions, investigations, suits or
----------
proceedings (other than tax appeals or protests) pending or, to Seller's
knowledge, threatened in writing that have a material adverse effect on the
Property, or the ownership or operation thereof, and (b) there
Page 17
are no judgments, orders, awards or decrees currently in effect against
Seller with respect to the ownership or operation of the Property which
have not been fully discharged prior to the Execution Date.
8.7 Zoning and Condemnation. To Seller's Knowledge, there are no pending
-----------------------
proceedings to alter or restrict the zoning or other use restrictions
applicable to the Property, or to condemn all or any portion of the
Property by eminent domain proceedings or otherwise.
8.8 Operating Statements. The operating statements for the Property
--------------------
delivered to Buyer pursuant to Section 4.1.1(iv) of this Agreement were
prepared by Seller's manager of the Property and Seller has relied on them
in the course of its business regarding the Property.
8.9 Seller's Knowledge. As used herein, the term "Seller's Knowledge" shall
------------------ ------------------
mean the actual knowledge, without any investigation or inquiry, of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇.
8.10 Survival. All of the representations and warranties of Seller set
--------
forth in this Agreement shall be true upon the Execution Date, shall be
deemed to be repeated at and as of the Closing Date (except as otherwise
set forth in writing to Buyer) and shall survive the delivery of the Deed
and the Closing for a period of six (6) months (the "Survival Period");
---------------
provided, however, in no event shall Seller have any liability with respect
to any of such representations or warranties except to the extent that (a)
Buyer has provided written notice to Seller during the Survival Period of
Seller's breach thereof, (b) Buyer did not have knowledge of such breach
prior to the Closing Date, and (c) any damage resulting from such breach
does not exceed, individually or in the aggregate, $100,000.00; and
provided further, however, that the covenant of Seller contained in Section
8.3, with respect to the payment of the leasing commission which may become
owing with respect to the Lease to Pixel Magic Imaging, shall survive the
delivery of the Deed and the Closing until the termination or expiration of
such Lease.
9. BUYER'S REPRESENTATIONS AND WARRANTIES.
---------------------------------------
Buyer represents and warrants to Seller, as of the Execution Date and as of
the Closing Date, as follows:
9.1 Due Organization. Buyer is a limited liability company duly organized
----------------
and validly existing under the laws of the Commonwealth of Virginia.
9.2 Buyer's Authority: Validity of Agreements. Buyer has full right, power
-----------------------------------------
and authority to purchase and acquire the Property from Seller as provided
in this Agreement and to carry out its obligations hereunder. The
individual(s) executing this Agreement and the instruments referenced
herein on behalf of Buyer have the legal power, right and actual authority
to bind Buyer to the terms hereof and thereof. This Agreement is, and all
instruments, documents and agreements to be executed and delivered by Buyer
in connection with this Agreement shall be, duly authorized, executed and
delivered by Buyer and shall be valid, binding and enforceable obligations
of Buyer (except as enforcement may be limited by bankruptcy, insolvency or
similar laws) and do not, and as of the Closing Date will not,
Page 18
violate any provision of any agreement or judicial order to which Buyer is
a party or to which Buyer is subject.
9.3 Survival. All of the representations, warranties and agreements of
--------
Buyer set forth in this Agreement shall be true upon the Execution Date,
shall be deemed to be repeated at and as of the Closing Date (except as
otherwise set forth in writing to Seller) and shall survive the delivery of
the Deed and the Closing for a period of six (6) months.
10. ADDITIONAL COVENANTS AND AGREEMENTS.
------------------------------------
10.1 As-Is. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE AS FOLLOWS: (A) BUYER
-----
IS A SOPHISTICATED PURCHASER WHO IS FAMILIAR WITH THIS TYPE OF PROPERTY;
(B) EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE DEED,
NEITHER SELLER NOR ANY OF ITS AGENTS, REPRESENTATIVES, BROKERS, OFFICERS,
DIRECTORS, SHAREHOLDERS, OR EMPLOYEES HAS MADE OR WILL MAKE ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY; AND (C) EXCEPT
AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH IN THE DEED, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS
"AS-IS", "WHERE-IS" AND "WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT
LIMITED TO ANY MATTER, FACT OR CONDITION PERTAINING TO OR AFFECTED BY ANY
APPLICABLE LAW, RULE OR REGULATION PERTAINING TO WATER, AIR, WASTE OR
ENVIRONMENTAL PROTECTION (WHETHER ABOVE, WITHIN, UNDER OR ADJACENT TO THE
PROPERTY). SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTIES, EXPRESS
OR IMPLIED, AS TO THE FITNESS, ENVIRONMENTAL COMPLIANCE, HANDICAPPED
ACCESSIBILITY LAW COMPLIANCE, ELECTROMAGNETIC FIELD EXPOSURE LEVELS, AREA,
CONDITION, QUALITY, QUANTITY, CHARACTER, SIZE, VALUE OF THE PROPERTY OR
IMPROVEMENTS THEREON, EXPENSES, DESCRIPTION, MERCHANTABILITY OR
HABITABILITY OF THE PROPERTY, FITNESS OF THE PROPERTY FOR A PARTICULAR
PURPOSE OR OTHERWISE. GRANTEE, BY ITS ACCEPTANCE HEREOF, DOES HEREBY
RELEASE AND FOREVER DISCHARGE GRANTOR, ITS OFFICERS, DIRECTORS AND TRUSTEES
AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNEES FROM ANY
AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN TORT, UNDER
CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH
REPRESENTATION (OTHER THAN THE SPECIAL WARRANTY OF TITLE SET FORTH HEREIN)
AND/OR ALLEGED REPRESENTATION. SUBJECT TO THE TERMS HEREOF, BUYER WILL BE
AFFORDED THE OPPORTUNITY TO MAKE ANY AND ALL INSPECTIONS OF THE PROPERTY
AND SUCH RELATED MATTERS AS BUYER MAY REASONABLY DESIRE AND, ACCORDINGLY,
BUYER WILL RELY SOLELY ON ITS OWN DUE DILIGENCE AND INVESTIGATIONS IN
PURCHASING THE PROPERTY.
Page 19
10.2 Changes in Conditions. Subject to the provisions of Section 11 of this
--------------------- ----------
Agreement, if, prior to the Closing, Seller becomes aware that any
representation or warranty set forth in this Agreement which was true and
correct on the Execution Date has become incorrect in a material and
adverse respect due to changes in conditions outside of the control of
Seller or the discovery by Seller of information of which Seller was
unaware on the Execution Date, the same shall not constitute a breach by
Seller of any of its representations or warranties set forth herein or be
deemed to be a default by Seller in its obligations under this Agreement,
but Seller shall promptly notify Buyer thereof and may, at Seller's option,
undertake to cure or correct the material and adverse effect thereof, and
the representations and warranties set forth herein which are to be remade
and reaffirmed by Seller at the Closing shall be supplemented by such new
information; provided, however, that Buyer shall have the option to
terminate this Agreement upon written notice to Seller and Escrow Agent if
Seller fails to cure or correct such material and adverse effect by the
Closing Date, in which event Escrow Agent shall return the Deposit to Buyer
and the parties shall equally share the cancellation charges of Escrow
Agent and Title Company, if any.
10.3 Service and Management Contracts. Seller shall not enter into any new
--------------------------------
service or management contract or renew or replace any existing service or
management contract in respect of the Property without Buyer's prior
written consent unless the same shall be cancellable without premium or
penalty upon not more than thirty (30) days' notice from the owner of the
Property. Any existing agreement for the management of the Property shall
be terminated effective as of the Closing Date.
10.4 Leases. Seller shall not (a) enter into any new Lease or modify,
------
extend, renew or replace any existing Lease without Buyer's prior written
consent (which consent may be withheld in Buyer's sole discretion)
following the day which is three (3) days prior to the expiration of the
Due Diligence Period, or (b) following the expiration of the Due Diligence
Period, apply or retain any security deposit (or portion thereof) with
respect to any tenant under a Lease who will continue in occupancy as a
tenant on the Closing Date, except with the written consent of Buyer (which
consent shall not be unreasonably withheld or delayed). Prior to the
expiration of the Due Diligence Period, Seller shall give notice to Buyer
of (i) any new Lease or modification or extension of any existing Lease
which occurs during the Due Diligence Period, and provide to Buyer a copy
thereof, and (ii) any application or retention of any security deposit (or
portion thereof) made with respect to any tenant under a Lease.
11. RISK OF LOSS.
------------
11.1 Condemnation. If, prior to the Closing, all or any "Material Portion"
------------
(as hereinafter defined) of the Property is taken by condemnation or
eminent domain (or is the subject of a pending or contemplated taking which
has not been consummated), Seller shall immediately notify Buyer of such
fact. In such event, Buyer shall have the option to terminate this
Agreement upon written notice to Seller given not later than thirty (30)
days after receipt of such notice from Seller. Upon such termination,
Escrow Agent shall return the Deposit to Buyer, which shall be distributed
to Seller, the parties shall equally share the cancellation charges of
Escrow Agent and Title Company, if any, and neither party shall have any
further rights or obligations hereunder, other than pursuant to any
provision hereof which expressly
Page 20
survives the termination of this Agreement. Buyer shall have no right to
terminate this Agreement as a result of any taking of any portion of the
Property that is not a Material Portion. If Buyer does not elect or has no
right to terminate this Agreement, Seller shall assign and turn over to
Buyer, and Buyer shall be entitled to receive and keep, all awards for the
taking by condemnation and Buyer shall be deemed to have accepted the
Property subject to the taking without reduction in the Purchase Price. As
used herein, the term "Material Portion" shall mean (a) any portion having
----------------
a value in excess of $300,000.00, or (b) any taking which reduces the
parking available to the Property to be less than that required under the
Leases (if any) or under applicable zoning laws. The provisions of this
Section 11.1 shall survive the Closing.
11.2 Casualty. Prior to the Closing and notwithstanding the pendency of
--------
this Agreement, the entire risk of loss or damage by earthquake, flood,
landslide, fire, "Environmental Contamination" (as hereinafter defined) or
other casualty shall be borne and assumed by Seller. If, prior to the
Closing, any "Material Damage" (as hereinafter defined) occurs to any
portion of the Property as a result of any earthquake, flood, landslide,
fire, Environmental Contamination or other casualty, Seller shall
immediately notify Buyer of such fact. In such event, Buyer shall have the
option to terminate this Agreement in the same manner as provided in
Section 11.1 above upon written notice to Seller given not later than
thirty (30) days after receipt of any such notice from Seller. Buyer shall
have no right to terminate this Agreement as a result of any damage or
destruction of any portion of the Property that does not constitute
Material Damage. If Buyer does not elect or has no right to terminate this
Agreement, Seller shall assign and turn over, and Buyer shall be entitled
to receive and keep, any insurance proceeds payable with respect to such
damage or destruction (which shall then be repaired or not at Buyer's
option and cost) together with the amount of the deductible payable by
Seller in connection therewith (which shall be credited to Buyer against
the payment of the Purchase Price at Closing), and the parties shall
proceed to the Closing pursuant to the terms hereof without modification of
the terms of this Agreement. If Buyer does not elect or has no right to
terminate this Agreement by reason of any casualty, Buyer shall have the
right to participate in any adjustment of the insurance claim. As used
herein, the term "Environmental Contamination means the disposal, leaking
---------------------------
or other presence or release into the environment of any chemicals,
pollutants, contaminants, wastes or toxic or hazardous substances in, at,
on, under or about the Property, from any location, forming the basis of a
violation of any applicable federal, state or local law or regulation
relating to pollution or protection of the environment. As used herein, the
term "Material Damage" shall mean damage or destruction (a) the cost of
---------------
repair or remediation of which exceeds $300,000.00, or (b) entitles any
Major Tenant to terminate its Lease.
12. REMEDIES.
--------
12.1 Liquidated Damages. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION
------------------
FAIL TO CLOSE AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S
ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE
PARTIES THEREFORE AGREE THAT IN THE EVENT THAT THE ESCROW AND THIS
TRANSACTION FAIL TO CLOSE AS A RESULT OF THE DEFAULT OF BUYER IN
Page 21
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND
EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE
DEPOSIT. IN THE EVENT THAT THE ESCROW FAILS TO CLOSE AS A RESULT OF BUYER'S
DEFAULT, THEN (A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER
AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (B)
ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN
PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES
WHO DEPOSITED THE SAME, (C) ESCROW AGENT SHALL DELIVER THE DEPOSIT TO
SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL,
AGREED AND LIQUIDATED DAMAGES, AND (D) ALL TITLE AND ESCROW CANCELLATION
CHARGES, IF ANY, SHALL BE CHARGED TO BUYER; PROVIDED, HOWEVER, THAT THE
FOREGOING SHALL NOT LIMIT SELLER'S RIGHTS OR REMEDIES WITH RESPECT TO (1)
THE OBLIGATIONS OF BUYER UNDER SECTIONS 4 AND 13 HEREOF AND (2) THOSE
RIGHTS AND OBLIGATIONS THAT, BY THEIR TERMS, SURVIVE THE TERMINATION OF
THIS AGREEMENT.
12.2 Default by Seller. In the event that the Closing fails to occur as a
-----------------
result of the default of Seller in the performance of its obligations under
this Agreement, then, upon notice by Buyer to Seller and Escrow Agent to
that effect, (a) Escrow Agent shall return the Deposit to Buyer and (b)
Buyer shall, as its sole remedy, elect to either (i) terminate this
Agreement, in which event Seller shall reimburse Buyer for its reasonable
out-of-pocket expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred in connection with the
negotiation of this Agreement and Buyer's due diligence efforts (provided
that the amount of such reimbursement shall not exceed $25,000.00) or (ii)
seek the specific performance of this Agreement. Notwithstanding anything
to the contrary contained herein, neither Seller nor Buyer shall be in
default with respect to any of its obligations hereunder unless and until
(y) it receives written notice from the other party specifying such default
and (z) it fails to cure such default within five (5) Business Days after
receipt of such notice.
13. BROKERS.
-------
Buyer and Seller each hereby represent, warrant to and agree with each
other that it has not had, and shall not have, any dealings with any third party
to whom the payment of any broker's fee, finder's fee, commission or other
similar compensation ("Commission") shall or may become due or payable in
----------
connection with the transaction contemplated hereby, other than (a) Transwestern
Commercial Services (the "Broker") and Triple Net Properties Realty, Inc.
------
("Buyer's Broker"). Seller hereby agrees to pay any Commission due and payable
--------------
to the Broker in connection with the transaction contemplated hereby pursuant to
its separate agreement with the Broker, and to pay to Buyer's Broker at the
Closing a commission of $250,000.00, provided, however, in no event shall
Buyer's Broker be entitled to payment of a Commission if the Closing shall fail
to occur for any reason. Seller shall indemnify, defend, protect and hold Buyer
harmless from and against any and all Claims incurred by Buyer by reason of any
breach or inaccuracy of the representation, warranty and agreement of Seller
contained in this Section 13. Buyer shall indemnify, defend, protect and hold
Seller harmless from and against any and all Claims incurred by Seller by reason
of any breach or
Page 22
inaccuracy of the representation, warranty and agreement of Buyer contained in
this Section 13. The provisions of this Section 13 shall survive the Closing or
earlier termination of this Agreement.
14. MISCELLANEOUS PROVISIONS.
-------------------------
14.1 Governing Law. This Agreement and the legal relations between the
-------------
parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to its
principles of conflicts of law.
14.2 Entire Agreement. This Agreement, including the exhibits attached
----------------
hereto, constitutes the entire agreement between Buyer and Seller
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, letters of intent, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made
to either party by the other party in connection with the subject matter
hereof except as specifically set forth herein or in the documents
delivered pursuant hereto or in connection herewith.
14.3 Modification; Waiver. No supplement, modification, waiver or
--------------------
termination of this Agreement shall be binding unless executed in writing
by the party to be bound thereby. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
14.4 Notices. All notices, consents, requests, reports, demands or other
-------
communications hereunder (collectively, "Notices") shall be in writing and
-------
may be given personally, by registered or certified mail, by telecopy or by
Federal Express (or other reputable overnight delivery service)
To Buyer: Triple Net Properties, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Federal Reserve Bank Building
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Page 23
To Seller: United States Fidelity and Guaranty Company
c/o St. ▇▇▇▇ Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Agent: Commonwealth Land Title Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Mesh
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or such other person as the addressee party shall
have last designated by notice to the other party. All Notices shall be
deemed to have been given when received. All Notices given by telecopy
shall be followed by the delivery of a hard copy of such Notice, provided
that such Notice shall be deemed to have been given when received by
telecopy.
14.5 Expenses. Subject to the provision for payment of the Closing Costs in
--------
accordance with the terms of Section 7.6 hereof and any other provision of
this Agreement, whether or not the transaction contemplated by this
Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
14.6 Assignment. Neither all nor any portion of either party's interest
----------
under this Agreement may be sold, assigned, encumbered, conveyed, or
otherwise transferred, whether directly or indirectly, voluntarily or
involuntarily, or by operation of law or otherwise (including, without
limitation, by a transfer of interests in such party) (collectively, a
"Transfer"), without the prior written consent of the other party hereto,
--------
which consent may be granted or denied in its sole and absolute discretion.
Any attempted Transfer without such consent Shall be null and void. No
Transfer, whether with or without consent, shall operate to release the
party requesting a Transfer or alter such party's primary liability to
perform its obligations under this Agreement. Notwithstanding the
foregoing, Buyer shall have the right, power and authority to assign all or
any portion of this Agreement or its rights hereunder or to delegate any
duties or obligations rising under this Agreement, voluntarily or
involuntarily, or by operation of law, without Seller's consent, to either
an affiliate of Buyer
Page 24
or an entity managed by Buyer; provided, however, that no such assignment
or delegation shall relieve Buyer of its obligations or liabilities under
this Agreement.
14.7 Severability. Any provision or part of this Agreement which is invalid
------------
or unenforceable in any situation in any jurisdiction shall, as to such
situation and such jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision
in any other situation or in any other jurisdiction.
14.8 Successors and Assigns, Third Parties. Subject to and without waiver
-------------------------------------
of the provisions of Section 14.6 hereof, all of the rights, duties,
benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors and assigns,
Except as specifically set forth or referred to herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or
give to any person or entity, other than the parties hereto and their
successors or permitted assigns, any rights or remedies under or by reason
of this Agreement.
14.9 Counterparts. This Agreement may be executed in as many counterparts
------------
as may be deemed necessary and convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the
same instrument.
14.10 Headings. The section headings of this Agreement are for convenience
--------
of reference only and shall not be deemed to modify, explain, restrict,
alter or affect the meaning or interpretation of any provision hereof.
14.11 Time of Essence. Time shall be of the essence with respect to all
---------------
matters contemplated by this Agreement.
14.12 Further Assurances. In addition to the actions recited herein and
------------------
contemplated to be performed, executed, and/or delivered by Seller and
Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause
to be performed, executed and/or delivered at the Closing or after the
Closing any and all such further acts, instruments, deeds and assurances as
may be reasonably required to consummate the transaction contemplated
hereby. The provisions of this Section 14.12 shall survive the Closing.
14.13 Number and Gender. Whenever the singular number is used, and when
-----------------
required by the context, the same includes the plural, and the masculine
gender includes the feminine and neuter genders.
14.14 Construction. This Agreement shall not be construed more strictly
------------
against one party hereto than against any other party hereto merely by
virtue of the fact that it may have been prepared by counsel for one of the
parties.
14.15 Exhibits. All exhibits attached hereto are hereby incorporated by
--------
reference as though set out in full herein.
Page 25
14.16 Attorneys' Fees. In the event that either party hereto brings an
---------------
action or proceeding against the other party to enforce or interpret any of
the covenants, conditions, agreements or provisions of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover
all costs and expenses of such action or proceeding, including, without
limitation, attorneys' fees, charges, disbursements and the fees and costs
of expert witnesses.
14.17 Business Days. As used herein, the term "Business Day" shall mean a
------------- ------------
day that is not a Saturday, Sunday or legal holiday in San Antonio, Texas.
In the event that the date for the performance of any covenant or
obligation under this Agreement shall fall on a Saturday, Sunday or legal
holiday, the date for performance thereof shall be extended to the next
Business Day.
14.18 Early Termination. In the event that this Agreement is terminated
-----------------
pursuant to the terms hereof, this Agreement and all of the provisions
hereof shall be of no further force or effect and neither party shall have
any further rights or obligations hereunder, other than pursuant to any
provision hereof which expressly survives the termination of this
Agreement.
14.19 Waiver of Known Defaults. Notwithstanding anything to the contrary
------------------------
contained herein, in the event that either party hereto has actual
knowledge of the default of the other party (a "Known Default"), but
-------------
nonetheless elects to consummate the transaction contemplated hereby and
proceeds to Closing, then the rights and remedies of the non-defaulting
party shall be waived with respect to any such Known Default upon the
Closing and the defaulting party shall have no liability with respect
thereto.
14.20 DTPA WAIVER. BUYER HEREBY WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER
------------
THE TEXAS DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION ACT (SECTION
17.41 ET. SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE), A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS AND PROTECTIONS, EXCEPT SECTION 17.555 THEREOF.
BUYER WARRANTS AND REPRESENTS TO SELLER THAT BUYER IS NOT IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION, THAT IT IS REPRESENTED BY
LEGAL COUNSEL OF ITS OWN SELECTION, THAT IT IS A BUSINESS CONSUMER WITH
ASSETS OF $25,000,000 OR MORE ACCORDING TO ITS MOST RECENT FINANCIAL
STATEMENT PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES AND THAT BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF A
TRANSACTION, AND THAT IT VOLUNTARILY CONSENTS TO THIS WAIVER AFTER
CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION.
14.21 Texas Real Estate License Act. The Texas Real Estate License Act
-----------------------------
requires written notice to Buyer that it should have an attorney examine an
abstract of title to the property being purchased or obtain a title
insurance policy. Notice to that effect is, therefore, hereby given to
Buyer.
Page 26
14.22 Exchange. At the exchanging party's sole cost and expense, Seller
--------
and/or Buyer may structure and consummate the sale and/or purchase of the
Property as part of a like-kind exchange (an "Exchange") intended to
qualify under (S) 1031 of the Internal Revenue Code of 1986, as amended,
provided that: (a) the Closing shall not be delayed or affected by reason
of an Exchange; (b) Seller and/or Buyer shall effect an Exchange through an
assignment of this Agreement, and its rights under this Agreement, to a
qualified intermediary; and (c) Seller and/or Buyer shall not be required
to take an assignment of the agreement relating to the exchange property or
be required to acquire or hold title to any real property for purposes of
consummating the other party's Exchange. Seller and/or Buyer shall
cooperate fully and promptly with the other party's conduct of the
Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by the exchanging party. If Seller
and/or Buyer uses a qualified intermediary to effectuate the Exchange, any
assignment of the rights or obligations of Seller and/or Buyer hereunder
shall not relieve, release or absolve its obligations to the other party.
Seller and/or Buyer shall indemnify and hold harmless the other party from
and against any and all liability arising from and out of their respective
Exchanges.
14.23 Confidentiality. Buyer and/or Seller shall not disclose the terms and
---------------
conditions contained in this Agreement, shall keep the same confidential,
provided that Buyer and/or Seller may disclose the terms and conditions of
this Agreement (i) as required by law, (ii) to consummate the terms of this
Agreement, or any financing relating thereto, or (iii) to Buyer's and/or
Seller's lenders, attorneys and accountants.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER:
Triple Net Properties, L.L.C.,
a Virginia limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SELLER:
United States Fidelity and Guaranty Company,
a Maryland corporation
By:
----------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Authorized Signatory
Page 27
14.22 Exchange. At the exchanging party's sole cost and expense, Seller
--------
and/or Buyer may structure and consummate the sale and/or purchase of the
Property as part of a like-kind exchange (an "Exchange") intended to
qualify under (S) 1031 of the Internal Revenue Code of 1986, as amended,
provided that: (a) the Closing shall not be delayed or affected by reason
of an Exchange; (b) Seller and/or Buyer shall effect an Exchange through an
assignment of this Agreement, and its rights under this Agreement, to a
qualified intermediary; and (c) Seller and/or Buyer shall not be required
to take an assignment of the agreement relating to the exchange property or
be required to acquire or hold title to any real property for purposes of
consummating the other party's Exchange. Seller and/or Buyer shall
cooperate fully and promptly with the other party's conduct of the
Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by the exchanging party. If Seller
and/or Buyer uses a qualified intermediary to effectuate the Exchange, any
assignment of the rights or obligations of Seller and/or Buyer hereunder
shall not relieve, release or absolve its obligations to the other party.
Seller and/or Buyer shall indemnify and hold harmless the other party from
and against any and all liability arising from and out of their respective
Exchanges.
14.23 Confidentiality. Buyer and/or Seller shall not disclose the terms and
---------------
conditions contained in this Agreement, shall keep the same confidential,
provided that Buyer and/or Seller may disclose the terms and conditions of
this Agreement (i) as required by law, (ii) to consummate the terms of this
Agreement, or any financing relating thereto, or (iii) to Buyer's and/or
Seller's lenders, attorneys and accountants.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER:
Triple Net Properties, L.L.C.,
a Virginia limited liability company
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SELLER:
United States Fidelity and Guaranty Company,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Authorized Signatory
Page 27
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale
Agreement and agrees to act as Escrow Agent under this Agreement in strict
accordance with its terms.
Commonwealth Land Title Insurance Company
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Page 28
LIST OF EXHIBITS
----------------
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" SPECIAL WARRANTY DEED
EXHIBIT "C" SCHEDULE OF SERVICE CONTRACTS
EXHIBIT "D" ASSIGNMENT OF LEASES
EXHIBIT "E" ▇▇▇▇ OF SALE
EXHIBIT "F" NON-FOREIGN AFFIDAVIT
EXHIBIT "G" SCHEDULE OF LEASES
EXHIBIT "H" MAJOR TENANTS
Page 29
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
FEE TRACTS:
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TRACT I: A 2.034 acre, or 88,621 square feet, tract of land, more or less, out
of ▇▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 12167 of the City of San Antonio, Bexar
County, Texas, out of the plat attached to deed recorded in Volume 2298, Page
532 of the Deed Records of Bexar County, Texas, said 2.034 acres being more
particularly described in Exhibit "A-1", attached hereto and made a part hereof.
TRACT II: ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 2 SUBDIVISION, in the City of San
Antonio, Bexar County, Texas, according to plat thereof recorded in Volume 9502,
Pages 86-87, Deed and Plat Records of Bexar County, Texas.
TRACT III: ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 2 SUBDIVISION, in the City of San
Antonio, Bexar County, Texas, according to plat thereof recorded in Volume 9502,
Pages 86-87, Deed and Plat Records of Bexar County, Texas.
EASEMENT TRACT:
---------------
TRACT IV: The easement rights provided by instrument recorded in Volume 2671,
Page 1124, Real Property Records of Bexar County, Texas, as further conveyed by
instrument recorded in Volume 7368, Page 851, Real Property Records of Bexar
County, Texas, over and across a 0.241 acre, or 10,502 square foot, tract of
land out of ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 1 SUBDIVISION, in the City of San
Antonio, Bexar County, Texas, according to plat thereof recorded in Volume 9400,
Page 134, Deed and Plat Records of Bexar County, Texas, said 0.241 acre tract
being more particularly described in Exhibit "A-2", attached hereto and made a
part hereof.
EXHIBIT A - Page 1
EXHIBIT "A-1"
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TRACT I
BEGINNING at a 1/2 inch iron rod with yellow cap marked "▇▇▇▇-▇▇▇▇▇▇" found
in the northwest right-of-way line of Vicar Drive, at this point being 55' in
width, for the south corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, departing said northwest line at 5.00' past
the East corner of ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Subdivision as
recorded in Volume 5580, Page 106 of the Deed and Plat Records of Bexar County,
Texas, in all a distance of 266.07' to a set 1/2 inch iron rod with ▇▇▇▇▇▇▇ &
Associates property cap in the easterly line of ▇▇▇▇▇▇-▇▇▇▇▇▇ Creek, a variable
width drainage right-of-way as shown on the plat of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Subdivision,
recorded in Volume 9300, Page 106 of said Records, for the northeast corner of
said Lot 26, the northwest corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, a distance of 126.05' to a set 1/2 inch
iron rod with ▇▇▇▇▇▇▇ & Associates property cap for the northwest corner of said
Lot 12, the northeast corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇. 22' 51" West, a distance of 65.47' to a set 1/2 inch
iron rod with ▇▇▇▇▇▇▇ & Associates property cap for the northernmost corner of
said Lot 12, an angle point of said drainage right-of-way;
THENCE North 89DEG.24'48" East, continuing along and with said drainage
right-of-way, a distance of 79.66' to a found 3/4 inch iron rod for the
southwest corner of ▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇. ▇. ▇▇▇▇ 410 Subdivision, as
recorded in Volume 7800, Page 60 of the aforementioned Records, for the
northeast corner of said Lot 12, the northwest corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" East, departing said right-of-way, along and with
the common line of said Lots 4 and 13, a distance of 152.88' to a set 1/2 inch
iron rod with ▇▇▇▇▇▇▇ & Associates property cap for the northwest corner of ▇▇▇
▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ Dr. Subdivision, Unit II as
recorded in Volume 8200, Page 128 of said Records, same being the northeast
corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" East, along the common line of Lots 36 and 13, at
a distance of 208.29' past the southwest corner of said Lot 36, in all a
distance of 213.29' to a set 1/2 inch iron rod with ▇▇▇▇▇▇▇ & Associates
property corner cap in the northwesterly right-of-way line of Vicar Drive for
the southeast corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, 280.00' along said northwesterly
right-of-way line of Vicar Drive to the POINT OF BEGINNING and containing 2.034
acres (88,621 square feet) of land.
EXHIBIT A - Page 2
EXHIBIT "A-2"
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TRACT IV (EASEMENT)
BEGINNING at a found "x" in concrete in the east right-of-way line of
▇▇▇▇▇▇-▇▇▇▇▇▇ Road (a variable right-of-way) at the south most corner of said
Lot 13;
THENCE N 13DEG.03'31" W,12.50' along the east right-of-way line of
▇▇▇▇▇▇-▇▇▇▇▇▇ Road to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates property
end cap;
THENCE, N 76DEG.56'29" E, 304.20' to a set 1/2 iron rod with a ▇▇▇▇▇▇▇ &
Associates property end cap;
THENCE N 13DEG.03'31" W, 205.00' to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ &
Associates property end cap;
THENCE S 76DEG.56'29" W, 305.98' to a point in the east right-of-way line
of said ▇▇▇▇▇▇-▇▇▇▇▇▇ Road and a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates
property end cap;
THENCE N 13DEG.03'31" W, 12.50' along the east right-of-way line of
▇▇▇▇▇▇-▇▇▇▇▇▇ Road to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates property
end cap;
THENCE N 76DEG.56'29" E, 318.48' along the northwest line of said Lot 13 to
a found nail and cap;
THENCE S 13DEG.03'31" E, 230.00' along the northeast line of said Lot 13 to
a found nail and cap;
THENCE S 76DEG.56'29" W, 316.70' along the southeast line of said Lot 13 to
the POINT OF BEGINNING and containing 0.241 acres (10,502 sq. ft.) of land.
EXHIBIT A - Page 3
EXHIBIT "B"
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SPECIAL WARRANTY DEED
THE STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
That UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation
("Grantor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
-------
other good and valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, has GRANTED and CONVEYED, and by these presents does
GRANT and CONVEY unto TRIPLE NET PROPERTIES, L.L.C., a Virginia limited
liability company ("Grantee"), its successors and assigns forever, all those
-------
certain lots, tracts or parcels of land in Bexar County, Texas, more
particularly described on Exhibit A attached hereto and incorporated herein by
---------
this reference for all purposes, together with all the improvements, structures
and fixtures situated thereon, and all appurtenances, rights and privileges
thereunto attached or in anywise belonging (the "Property");
--------
EXCEPT THAT, this conveyance is expressly made subject to the Permitted
Exceptions described in Exhibit B hereto, to the extent the same are validly
---------
existing and applicable to the Property (the "Permitted Encumbrances")
----------------------
TO HAVE AND TO HOLD the above described premises unto the said GRANTEE, its
successors and assigns forever, and the GRANTOR does hereby bind itself, its
successors and assigns to forever warrant and defend said premises unto the said
GRANTEE, its successors and assigns against the lawful claims of any person now
claiming or to claim the same or any part thereof by through or under Grantor,
but not otherwise, subject only to the Permitted Encumbrances.
In addition, Grantor hereby conveys to Grantee, for the same consideration
set forth above and subject to the same consideration set forth above and
subject to the Permitted Encumbrances, all of Grantor's right, title and
interest, if any, in and to adjacent streets, alleys, rights-of-way and strips
and gores of land abutting or adjoining the Property.
EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH ABOVE, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS "AS-IS",
"WHERE-IS" AND "WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY
MATTER, FACT OR CONDITION PERTAINING TO OR AFFECTED BY ANY APPLICABLE LAW, RULE
OR REGULATION PERTAINING TO WATER, AIR, WASTE OR ENVIRONMENTAL PROTECTION
(WHETHER ABOVE, WITHIN, UNDER OR ADJACENT TO THE PROPERTY). GRANTOR HAS NOT MADE
AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND
EXPRESSLY DISCLAIMS WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FITNESS,
ENVIRONMENTAL COMPLIANCE, HANDICAPPED ACCESSIBILITY LAW COMPLIANCE,
ELECTROMAGNETIC FIELD EXPOSURE LEVELS, AREA, CONDITION, QUALITY, QUANTITY,
CHARACTER, SIZE, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, EXPENSES,
DESCRIPTION, MERCHANTABILITY OR HABITABILITY OF THE
EXHIBIT B -Page 1
PROPERTY, FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE OR OTHERWISE.
GRANTEE, BY ITS ACCEPTANCE HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE
GRANTOR, ITS OFFICERS, DIRECTORS AND TRUSTEES AND THEIR RESPECTIVE AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNEES FROM ANY AND ALL CLAIMS, OBLIGATIONS AND
LIABILITIES (WHETHER BASED IN TORT, UNDER CONTRACT OR OTHERWISE) ATTRIBUTABLE,
IN WHOLE OR IN PART, TO ANY SUCH REPRESENTATION (OTHER THAN THE SPECIAL WARRANTY
OF TITLE SET FORTH HEREIN) AND/OR ALLEGED REPRESENTATION.
Grantee, by its acceptance hereof, hereby assumes payment of all standby
charges, ad valorem real estate taxes and assessments with respect to the 2001
calendar year and subsequent calendar years not yet due and payable, each to the
extent attributable to all or any portion of the Property.
Grantee's address:
-----------------------
-----------------------
Executed as of day of , 2001.
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UNITED STATES FIDELITY AND GUARANTY
COMPANY, a Maryland corporation
By:
----------------------------
Name:
-----------------------
Title:
----------------------
THE STATE OF (S)
-----------------
(S)
COUNTY OF (S)
-------------------
This instrument was acknowledged before me on the day
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of , 2001 by
--------------------- ----------------------------------------------
of United States Fidelity and Guaranty Company, a Maryland corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
------ -------------
, 2001.
-------------------------------------------------
Notary Public in and for the State of
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EXHIBIT B -Page 2
EXHIBIT "C"
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SCHEDULE OF SERVICE CONTRACTS
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Titan Building
Vendor Contracts Listing
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Contract Contract
Vendor Type of Service Start Date End Date Description
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2 ▇▇▇ Enterprise Pressure Washing 01/01/00 Cancelable with 30 days written notice.
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Cancelable with written notice 30 days before
ADT Security Systems Fire alarm 06/01/01 05/31/02 anniversary date.
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▇▇▇▇ ▇▇▇▇▇▇ Security Patrol-Bys 01/12/93 Cancelable with 30 days written notice.
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▇▇▇▇▇▇ Engineering Co., Inc. HVAC Maintenance 07/01/94 Cancelable with 30 days written notice.
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▇▇▇▇▇ International Security Svc Security 02/15/98 Cancelable with 90 days written notice.
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Cancelable with written notice 30 days before
Ex-Pest Exterminators, Inc. Pest Control 03/03/97 anniversary date.
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Cancelable with written notice 30 days before
Grounds Control, Inc. Exterior Landscaping 01/01/95 anniversary date.
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Interior Landscaping
Lease & Maint.
Plant Interscapes, Inc. Agreement 08/17/99 Cancelable with 30 days written notice.
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NO CONTRACT ON FILE. We will sign a new
Janitorial Service and one with current rates once building sells (or
Sanitors, Inc. Day ▇▇▇▇▇▇ doesn't).
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Thyssen Dover Elevator, Inc. Elevator Maintenance 03/01/96 Cancelable with 30 days written notice.
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Waste Management Refuse Removal 04/30/01 Cancelable with 30 days written notice.
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Worth Hydrochem Water Treatment 04/30/96 Cancelable with 30 days written notice.
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EXHIBIT C -Page 1
EXHIBIT "D"
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ASSIGNMENT OF LEASES
THE STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation
("Seller"), hereby transfers, assigns and sets over unto TRIPLE NET PROPERTIES,
------
L.L.C., a Virginia limited liability company ("Buyer"), all of Seller's right,
-----
title and interest, if any, in and to any and all leases and occupancy
agreements (the "Leases") with tenants demising space in the premises briefly
------
described as 8200 ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, and
being further described in Exhibit A attached hereto and made a part hereof for
---------
all purposes. The Leases are more particularly described on the rent roll
attached hereto as Exhibit B and made a part hereof for all purposes.
---------
TO HAVE AND TO HOLD the Leases, subject to all exceptions (collectively,
the "Permitted Exceptions") set forth in that certain special warranty deed
--------------------
dated of even date hereof executed by Seller to Buyer, together with any and all
security and other tenant deposits and rights and appurtenances thereto in
anywise belonging to Seller, unto Buyer, its successors, legal representatives
and assigns FOREVER.
Seller agrees to reimburse Buyer for any loss, cost, damage or expense
arising from or in connection with any liabilities or obligations of the
landlord under the Leases, including any liability for the payment of leasing or
other commissions attributable thereto, arising during Seller's period of
ownership (but not prior thereto), and Seller shall be solely liable for such
liabilities and obligations.
Buyer assumes all Seller's obligations and liabilities under the Leases
from and after the date hereof, acknowledged receipt and sole liability for the
return of all security and other tenant deposits, and agrees to reimburse Seller
for any loss, cost, damage or expense arising from or in connection with any
liabilities or obligations of the landlord under the Leases, including any
liability for the payment of leasing or other commissions attributable thereto,
arising from and after the date hereof, and Buyer shall be solely liable for
such liabilities and obligations. This instrument may be executed in multiple
counterparts, each of which shall constitute one and the same instrument.
EXHIBIT D - Page 1
IN WITNESS WHEREOF, this instrument has been executed as of (but not
necessarily on) this day of , 2001.
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SELLER:
------
UNITED STATES FIDELITY AND GUARANTY
COMPANY, a Maryland corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BUYER:
-----
TRIPLE NET PROPERTIES, L.L.C., a Virginia
limited liability company
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT D - Page 2
EXHIBIT "E"
-----------
▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION
This ▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION (this "▇▇▇▇ of Sale") is made
------------
and entered into as of the day of , 2001, by
-------------- -------------------
and between UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation
("Seller"), and TRIPLE NET PROPERTIES, L.L.C., a Virginia limited liability
------
company ("Buyer").
-----
R E C I T A L S
WHEREAS, Seller is the owner of that certain real property located in the
City of San Antonio, County of Bexar, State of Texas (the "Real Property"), as
-------------
more particularly described on Exhibit A attached hereto and incorporated herein
by reference for all purposes; and
WHEREAS, Seller and Buyer have entered into that certain Purchase and Sale
Agreement, dated as of November , 2001 (the "Purchase Agreement"), with
---- ------------------
respect to, among other things, the acquisition of the "Personal Property" and
the "Intangible Property" (each as defined below), and certain other property;
and
WHEREAS, the Purchase Agreement requires Seller to convey all of Seller's
right, title and interest in, to and under the Personal Property and the
Intangible Property to Buyer.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
A G R E E M E N T
1. Unless the context otherwise requires, all capitalized terms used, but
not otherwise defined herein, shall have the meanings set forth for the same in
the Purchase Agreement.
2. Seller does hereby unconditionally, absolutely, and irrevocably grant,
bargain, sell, transfer, assign, convey, set over and deliver unto Buyer all of
Seller's right, title and interest, if any, in and to the following, and Buyer
does hereby expressly assume, for itself and its successors, assigns and legal
representatives, all of Seller's obligations and liabilities, if any, fixed and
contingent, arising under the following:
a. that certain tangible personal property, machinery, equipment and
supplies owned by Seller and situated at the Real Property and used by
Seller exclusively in connection with the use, operation, maintenance or
repair of all or any portion of the Real Property as of the Closing Date,
including, without limitation, all of the personal property described on
Exhibit "C" attached hereto (collectively, the "Personal Property"); and
-----------------
b. that certain intangible property owned by Seller and used by Seller
exclusively in connection with all or any portion of the Real Property
and/or the Personal
EXHIBIT E - Page 1
Property, including, without limitation, all of Seller's right, title and
interest, if any, in and to: (i) the Service Contracts, all books, records,
reports, test results, environmental assessments, if any, as-built plans,
specifications and other similar documents and materials relating to the
use, operation, maintenance, repair, construction or fabrication of all or
any portion of the Real Property and/or the Personal Property; (ii) all
transferable business licenses, architectural, site, landscaping or other
permits, applications, approvals, authorizations and other entitlements
affecting all or any portion of the Real Property and/or Personal Property;
and (iii) all transferable guarantees, warranties and utility contracts
relating to all or any portion of the Real Property (collectively, the
"Intangible Property" and, together with the Personal Property, the
-------------------
"Property").
--------
3. The Property has been purchased by Buyer AS IS, WHERE IS and WITH ALL
FAULTS and Seller has not made, does not make, and hereby disclaims any
representations or warranties, expressed or implied, in this conveyance, or
otherwise, as to the quality, physical condition, assignability, title, or value
of the Property, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Buyer expressly agrees to assume and hereby assumes all liabilities and
obligations of the Seller in connection with the Property and agrees to perform
all of the covenants and obligations of Seller thereunder. Buyer further agrees
to indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Property, pertaining
to acts arising on or after the date hereof. Seller further agrees to indemnify,
defend and hold Buyer harmless from and against any and all cost, loss, harm or
damage which may arise in connection with the Property, pertaining to acts
arising prior to the date hereof.
5. This ▇▇▇▇ of Sale may be executed in multiple counterparts, each of
which shall be deemed an original but together shall constitute one and the same
instrument.
6. This ▇▇▇▇ of Sale shall inure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns.
7. This ▇▇▇▇ of Sale and the legal relations between the parties hereto
shall be governed by and construed and enforced in accordance with the laws of
the State of Texas, without regard to its principles of conflicts of law.
EXHIBIT E - Page 2
IN WITNESS WHEREOF, this instrument has been executed as of (but not
necessarily on) this day of , 2001.
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SELLER:
------
UNITED STATES FIDELITY AND GUARANTY
COMPANY, a Maryland corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BUYER:
-----
TRIPLE NET PROPERTIES, L.L.C., a Virginia
limited liability company
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT E - Page 3
EXHIBIT "F"
-----------
NON-FOREIGN AFFIDAVIT
THE STATE OF (S)
-----------------------
(S)
COUNTY OF (S)
--------------------------
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform TRIPLE NET PROPERTIES, L.L.C., a Virginia limited liability
company ("Transferee"), that withholding of tax is not required upon the
----------
disposition of a U.S. real property interest by UNITED STATES FIDELITY AND
GUARANTY COMPANY, a Maryland corporation, ("Transferor"), Transferor hereby
----------
certifies the following:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is: ▇▇-▇▇▇▇▇▇▇; and
3. Transferor's office address is c/o The St. ▇▇▇▇ Companies, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and believe it is true, correct
and complete, and I further declare that I have authority to sign this document.
EXHIBIT F - Page 1
IN WITNESS WHEREOF, this Affidavit has been executed as of (but not
necessarily on) this day of , 2001.
---------- -------------
SELLER:
UNITED STATES FIDELITY AND GUARANTY
COMPANY, a Maryland corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SWORN TO AND SUBSCRIBED before me this day of ,
------- --------------------
2001.
-----------------------------------------
Notary Public, State of
-----------------
My Commission Expires: Notary's Name Printed:
------------------------------------ -----------------------------------------
EXHIBIT F - Page 2
EXHIBIT "G"
-----------
SCHEDULE OF LEASES
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SUITE TENANT LEASE VERBIAGE
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245 Braeselton Construction Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (Braeselton Construction Company) Effective Date: 10/11/1999
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360 Broadwing Communication Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (Broadwing Communications, Inc.) Effective Date: 01/18/2000
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340 Chicago Title Insurance Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (Chicago Title Insurance Company) Effective Date: 03/01/1999
First Amendment: This First Amendment to Lease is made and entered into
by and between United States Fidelity and Guaranty Company (hereinafter
referred to as "Landlord"), Chicago Title Insurance Company (hereinafter
referred to as "Tenant") Effective Date: October 23, 2001
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695 Christus Primary Carenet/ Lease Agreement is made as of the Effective Date (defined herein) by and
Alamo Mental Health Group between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (Christus Primary CareNet of Texas, L.L.C.) Effective Date:
06/08/1999
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250 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ This lease is entered into between United States Fidelity & Guaranty
Company, herein referred to as Lessor, and the Committee on House
Administration of the House of Representatives of the State of Texas, herein
referred to as Lessee, for the benefit of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, a member of
the House of Representatives of the State of Texas, herein referred to as
Member. Effective 03/05/01 (Owners usual Lease Agreement was voided
and replaced with a lease agreement provided by the State of Texas)
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330 EZ Packing Graphics Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (American EZ Type, Inc.) Effective Date: 10/16/1996
First Amendment:"...16th day of ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fidelity and
Guaranty Company through its predecessor in interest, as Landlord, and E-Z
Packaging Graphics, Inc., Through its predecessor in interest, as Tenant..."
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620 Hall Management Seniors Lease Agreement is made as of the Effective Date (defined herein) by and
2000 between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Hall Management Group, Inc. dba Seniors
2000) Effective Date: 11/03/2000
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210 Inventiva, Inc. Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Inventive, Inc., a Texas corporation)
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616 ▇▇▇▇ ▇▇▇▇▇▇ Design Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Design) Effective Date:
05/18/2000
------------------------------------------------------------------------------------------------------------------
235 ▇▇▇▇ Oil Company Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (▇▇▇▇ Oil Company) Effective Date: 10/16/1996.
First Amendment: "...16th day of October, 1996, Titan Indemnity Company,
as Landlord, and ▇▇▇▇ Oil Company, as Tenant, entered into a lease (the
"Lease") for approximately..."
------------------------------------------------------------------------------------------------------------------
600 Pixel Magic Imaging, Inc. Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Pixel Magic Imaging, Inc.)
------------------------------------------------------------------------------------------------------------------
EXHIBIT G - Page 1
------------------------------------------------------------------------------------------------------------------
150 Prudential Alamo Realty Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (▇▇▇▇▇▇/▇▇▇▇▇▇ #2, Inc., d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Realty
Effective Date: 06/13/1996
------------------------------------------------------------------------------------------------------------------
675 ▇. ▇. ▇▇▇▇, Attorney at Law Lease Agreement is made as of the Effective Date (defined herein) by and
between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (▇. ▇. ▇▇▇▇, ▇▇., Ph.D., Individually) Effective Date: 05/22/1997
------------------------------------------------------------------------------------------------------------------
300 Radio Unica Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Radio Unica San Antonio, Inc.) Effective
Date: 06/22/2000
------------------------------------------------------------------------------------------------------------------
400 St. ▇▇▇▇ Sector Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (St. ▇▇▇▇ Fire and Marine Insurance Company)
Effective Date: 02/22/2000
First Amendment: Same Entities, Dated 01/11/2001
Second Amendment: Same Entities, Dated 05/18/2001
Third Amendment: Same Entities, Dated 08/10/2001
------------------------------------------------------------------------------------------------------------------
100 Sterling Bank Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Sterling Bank) Effective Date: TBD, probably
on 11/06/01.
------------------------------------------------------------------------------------------------------------------
640 Unicare Life & Health Lease Agreement is made as of the Effective Date (defined herein) by and
Insurance Co. between Titan Indemnity Company ("Landlord") and the person named below
as Tenant (UniCARE Life & Health, Inc.) Effective Date: 08/28/1996
------------------------------------------------------------------------------------------------------------------
500 Titan Indemnity Co. Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Titan Indemnity Company) Effective Date:
05/01/2000
------------------------------------------------------------------------------------------------------------------
Plaza Titan Indemnity Co. Lease Agreement is made as of the Effective Date (defined herein) by and
between United States Fidelity and Guaranty Company ("Landlord") and the
person named below as Tenant (Titan Indemnity Company) Effective Date:
05/01/2000.
------------------------------------------------------------------------------------------------------------------
EXHIBIT G - Page 2
EXHIBIT "H"
-----------
MAJOR TENANTS
St. ▇▇▇▇ Fire and Marine Insurance Company
Titan Indemnity Company
Pixel Magic Imaging, Inc.
Inventiva, Inc.
Radio Unica San Antonio, Inc.
EXHIBIT H - Page 1
ASSIGNMENT OF PURCHASE
AND SALE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT is made as of the________day
of April, 2002, by TRIPLE NET PROPERTIES, LLC, a Virginia limited liability
company ("Assignor") to ▇▇▇▇▇ - TITAN PLAZA, L.P., a Texas limited partnership
as to a 55.5% undivided tenants in common interest and NNN TITAN BUILDING &
PLAZA, LLC, a Virginia limited liability company as to a 44.5% undivided tenants
in common interest (collectively, the "Assignee").
RECITALS
--------
Assignor entered into that certain Purchase and Sale Agreement dated
November 9, 2001, with United States Fidelity and Guaranty Company, as amended
and restated, with respect to certain improved and unimproved property known as
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇.▇. ▇▇▇▇ 410 and 8333 Vicar Drive, in the City of San
Antonio, County of Bexar, State of Texas (the "Contract").
Assignor desires to assign all of its rights, title and interest to
purchase all of the property described in Exhibit A of the Contract except for
that parcel described as Fee Tract 1 (the "Property") under the Contract to
Assignee.
AGREEMENT
---------
FOR and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby assigns its right to purchase the Property to Assignee.
Assignee hereby agrees to assume Assignor's obligation under the Contract.
WITNESS the following signatures;
ASSIGNOR: TRIPLE NET PROPERTIES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ASSIGNEE: ▇▇▇▇▇ - TITAN PLAZA, L.P.
By: ▇▇▇▇▇ - TITAN PLAZA GP, LLC
By: Triple Net Properties, LLC,
Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
NNN TITAN BUILDING & PLAZA, LLC
By: Triple Net Properties, LLC,
Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
2
SECOND AMENDMENT
TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
---------
entered into effective as of the 26th day of February, 2002, by and between
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation ("Seller"),
------
and TRIPLE NET PROPERTIES, L.L.C., a Virginia limited liability company
("Buyer").
-----
RECITALS:
A. Buyer and Seller have entered into that certain Purchase and Sale
Agreement (as amended, the "Agreement") dated as of November 9, 2001, covering
---------
certain parcels of real property located in Bexar County, Texas, as more
particularly described in the Agreement.
B. The Agreement was amended and modified by that certain Reinstatement and
First Amendment to Purchase and Sale Agreement, dated as of January 11, 2002, by
and between Purchaser and Buyer.
C. Buyer and Seller desire to amend the Agreement in certain respects, as
set forth below.
D. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Agreement.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
1. Section 7.1 is hereby amended such that the Closing shall take place on
or before April 3, 2002; provided, however, that Buyer shall have the option to
extend the Closing to April 18, 2002, on the condition that not later than 5:00
p.m., Central Standard Time, of March 29, 2002, Purchaser delivers (a) to Seller
and the Escrow Agent written notice of Seller's election to exercise this option
to extend the Closing, and (b) to Escrow Agent, for disbursement by Escrow Agent
to Seller, an additional non-refundable deposit of Five Hundred Thousand and
No/100 Dollars ($500,000.00), which additional deposit (the "Extension Deposit")
-----------------
shall be disbursed by Escrow Agent to Seller not later than April 1, 2002, and
Purchaser shall have no further right or claim to a return of the Extension
Deposit under any circumstance other than pursuant to the provisions of Sections
6.2, 11.1, 11.2 and 12.2 of this Agreement; provided, however, Purchaser shall
be entitled to a credit against the amount of the Purchase Price, as provided in
Section 2.1 with respect to the Deposit, on the Closing Date.
2. In consideration of the agreement of Seller to extend the Closing to
April 3, 2002, Buyer agrees that the Deposit held by the Escrow Agent pursuant
to Section 2.1 of the Agreement shall be disbursed by Escrow Agent to Seller, by
wire transfer, not later than March
Page 1
4, 2002, and Buyer shall have no further right or claim to a return of the
Deposit under any circumstance; provided, however, Purchaser shall be entitled
to a credit against the amount of the Purchase Price, as provided in Section
2.1, on the Closing Date.
3. Except as expressly modified by this Amendment, the Agreement is in full
force and effect as originally written.
4. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
5. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
BUYER:
Triple Net Properties, L.L.C
a Virginia limited liability company
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SELLER:
United States Fidelity and Guaranty Company,
a Maryland corporation
By:
-------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Authorized Signatory
Page 2
REINSTATEMENT AND FIRST AMENDMENT
TO PURCHASE AND SALE AGREEMENT
THIS REINSTATEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"Amendment") is entered into as of the 11th day of January, 2002, by and
---------
between UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation
("Seller", and TRIPLE NET PROPERTIES, L.L.C., a Virginia limited liability
------
company ("Buyer").
-----
RECITALS:
A. Buyer and Seller have entered into that certain Purchase and Sale
Agreement (the "Agreement") dated as of November 9, 2001, covering certain
---------
parcels of real property located in Bexar County, Texas, as more particularly
described in the Agreement.
B. The Agreement expired pursuant to the provisions of Section 4.1.4
thereof, (and the Deposit was returned to Buyer), and Buyer and Seller desire to
reinstate and amend the Agreement in certain respects, as set forth below.
C. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Agreement.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
l. Buyer and Seller hereby reinstate the Agreement subject to the terms,
conditions and modifications set forth in this Amendment.
2. The first sentence of Section 2 of the Agreement is hereby modified and
amended such that the amount of the purchase price shall be reduced from
$9,330,000.00 to $9,242,000.00.
3. Section 7.1 is hereby amended such that the Closing shall take place on
February 25, 2002.
4. Section 7.6.2 and Section 7.6.3 are each hereby amended such that the
amount of $9,080,000 contained therein shall be reduced to $8,992,00.00.
5. In consideration of the agreements of Seller contained in Paragraphs 1,
2, 3 and 4 above, Purchaser shall deposit, not later than three (3) Business
Days following the date of this Amendment, a non-refundable deposit of Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00), which deposit shall
constitute the "Deposit" under Section 2.1 of the Agreement (in replacement and
increase of the Initial Deposit and the Additional Deposit referenced in
Section 2.1 of the Agreement), and Purchaser shall have no further right or
claim to a return of the Deposit under any circumstance other than pursuant to
the provisions of
Page 1
Sections 6.2, 10.2, 11.1, 11.2 and 12.2 of the Agreement; provided, however,
Purchaser shall be entitled to a credit of the Deposit against the amount of the
Purchase Price, as provided in Section 2.1, on the Closing Date.
6. Buyer hereby acknowledges that Seller has complied with its obligations
set forth in Section 4 of the Agreement, and that the Due Diligence Period and
Financing Contingency Period terminated prior to the execution of this
Amendment. Buyer unconditionally waives the termination provisions of Section
4.1.4 and Section 4.1.5 of the Agreement. Buyer also unconditionally waives its
right to terminate the Agreement as provided in Section 4.2.
7. Exhibit "A" to the Agreement is hereby amended and restated to read as
set forth in Exhibit "A" attached to this Amendment and incorporated in
the Agreement, as amended, for all purposes.
8. Except as expressly modified by this Amendment, the Agreement is in full
force and effect as originally written.
9. This Amendment may be executed (a) by facsimile transmission, the same
of which wall be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument
10. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
Page 2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
BUYER:
Triple Net Properties, L.L.C.,
a Virginia limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SELLER:
United States Fidelity and Guaranty Company,
a Maryland corporation
By:
----------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Authorized Signatory
Page 3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
BUYER:
Triple Net Properties, L.L.C.,
a Virginia limited liability company
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SELLER:
United States Fidelity and Guaranty Company,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Authorized Signatory
Page 3
EXHIBIT "A" TO REINSTATEMENT AND FIRST AMENDMENT TO
---------------------------------------------------
PURCHASE AND SALE AGREEMENT
---------------------------
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
FEE TRACTS:
-----------
TRACT I: A 2.034 acre, or 88,621 square feet, tract of land, more or less, out
of ▇▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 12167 of the City of San Antonio,
Bexar County, Texas, out of the plat attached to deed recorded in Volume 2298,
Page 532 of the Deed Records of Bexar County, Texas, said 2.034 acres being more
particularly described in Exhibit "A-1", attached hereto and made a part hereof.
TRACT II: ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 2 SUBDIVISION, in the City of San
Antonio, Bexar County, Texas, according to plat thereof recorded in Volume 9502,
Pages 86-87, Deed and Plat Records of Bexar County, Texas.
TRACT III: ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 2 SUBDIVISION, in the City of San
Antonio, Bexar County, Texas, according to plat thereof recorded in Volume 9502,
Pages 86-87, Deed and Plat Records of Bexar County, Texas.
EASEMENT TRACT:
---------------
TRACT IV: The easement rights provided by instrument recorded in Volume 2671,
Page 1124, Real Property Records of Bexar County, Texas, as further conveyed by
instrument recorded in Volume 7368, Page 851, Real Property Records of Bexar
County, Texas, over and across a 0.241 acre, or 10,502 square foot, tract of
land out of ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 1 SUBDIVISION, in the City
of San Antonio, Bexar County, Texas, according to plat thereof recorded in
Volume 9400, Page 134, Deed and Plat Records of Bexar County, Texas, said 0.241
acre tract being more particularly described in Exhibit "A-2", attached hereto
and made a part hereof.
TRACT V: The easement rights provided by instrument recorded in Volume 2671,
Page 1132 of the Official Public Records of Real Property of Bexar County,
Texas, over and across a 0.094 acre, or 4,115 square foot, tract of land out of
▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ 2 SUBDIVISION, in the City of San Antonio,
Bexar County, Texas, according to plat thereof recorded in Volume 9502, Pages
86-87, Deed and Plat Records of Bexar County, Texas, said 0.094 acre tract
being more particularly described in Exhibit "A-3", attached hereto and made a
part hereof.
Exhibit A - Page 1
EXHIBIT "A-1"
-------------
TRACT I
BEGINNING at a 1/2 inch iron rod with yellow cap marked "▇▇▇▇-▇▇▇▇▇▇" found in
the northwest right-of-way line of Vicar Drive, at this point being 55" in
width, for the south corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, departing said northwest line at 5.00' past the
East corner of ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Subdivision as
recorded in Volume 5580, Page 106 of the Deed and Plat Records of Bexar County,
Texas, in all a distance of 266.07' to a set 1/2 inch iron rod with ▇▇▇▇▇▇▇ &
Associates property cap in the easterly line of ▇▇▇▇▇▇-▇▇▇▇▇▇ Creek, a variable
width drainage right-of-way as shown on the plat of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Subdivision,
recorded in Volume 9300, Page 106 of said Records, for the northeast corner of
said Lot 26, the northwest corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, a distance of 126.05' to a set 1/2 inch iron rod
with ▇▇▇▇▇▇▇ & Associates property cap for the northwest corner of said Lot 12,
the northeast corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, a distance of 65.47' to a set 1/2 inch iron rod
with ▇▇▇▇▇▇▇ & Associates property cap for the northernmost corner of said Lot
12, an angle point of said drainage right-of-way;
THENCE North 89DEG.24'48" East, continuing along and with said drainage
right-of-way, a distance of 79.66' to a found 3/4 inch iron rod for the
southwest corner of ▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇. ▇. ▇▇▇▇ 410 Subdivision, as
recorded in Volume 7800, Page 60 of the aforementioned Records, for the
northeast corner of said Lot 12, the northwest corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" East, departing said right-of-way, along and with the
common line of said Lots 4 and 13, a distance of 152.88' to a set 1/2 inch iron
rod with ▇▇▇▇▇▇▇ & Associates property cap for the northwest corner of ▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ Dr. Subdivision, Unit II as recorded
in Volume 8200, Page 128 of said Records, same being the northeast corner of
said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" East, along the common line of Lots 36 and 13, at a
distance of 208.29' past the southwest corner of said Lot 36, in all a distance
of 213.29' to a set 1/2 inch iron rod with ▇▇▇▇▇▇▇ & Associates property corner
cap in the northwesterly right-of-way line of Vicar Drive for the southeast
corner of said ▇▇▇ ▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.▇▇'▇▇" West, 280.00' along said northwesterly right-of-way
line of Vicar Drive to the POINT OF BEGINNING and containing 2.034 acres (88,621
square feet) of land.
Exhibit A - Page 2
EXHIBIT "A-2"
-------------
TRACT IV (EASEMENT)
BEGINNING at a found "x" in concrete in the east right-of-way line of
▇▇▇▇▇▇-▇▇▇▇▇▇ Road (a variable right-of-way) at the south most corner of said
Lot 13;
THENCE N 13DEG.03'31"W, 12.50' along the east right-of-way line of ▇▇▇▇▇▇-▇▇▇▇▇▇
Road to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates property end cap;
THENCE, N 76DEG.56'29" E, 304.20' to a set 1/2 iron rod with a ▇▇▇▇▇▇▇ &
Associates property end cap;
THENCE N 13DEG.03'31" W, 205.00' to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ &
Associates property end cap;
THENCE S 76DEG.56'29" W, 305.98' to a point in the east right-of-way line of
said ▇▇▇▇▇▇-▇▇▇▇▇▇ Road and a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates
property end cap;
THENCE N 13DEG.03'31" W, 12.50' along the east right-of-way line of
▇▇▇▇▇▇-▇▇▇▇▇▇ Road to a set 1/2" iron rod with a ▇▇▇▇▇▇▇ & Associates property
end cap;
THENCE N 76DEG.56'29" E, 318.48' along the northwest line of said Lot 13 to a
found nail and cap;
THENCE S 13DEG.03'31" E, 230.00' along the northeast line of said Lot 13 to a
found nail and cap;
THENCE S 76DEG.56'29" W, 316.70' along the southeast line of said Lot 13 to the
POINT OF BEGINNING and containing 0.241 acres (10,502 sq. ft.) of land.
Exhibit A - Page 3
EXHIBIT "A-3"
-------------
TRACT V (EASEMENT)
BEGINNING at a found "X" on concrete in the east right-of-way line of ▇▇▇▇▇▇
▇▇▇▇▇▇ Road at the northwest corner of said Lot 15;
THENCE N 76DEG.56'29" E, 329.20 feet along the north line of said Lot 15 to a
corner;
THENCE S 13DEG.03'31" E, 12.50 feet to a corner;
THENCE S 76DEG.56'29" W, 329.20 feet to a corner in the east right-of-way line
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Road;
THENCE N 13DEG.03'31" W, 12.50 feet along the east right-of-way line of ▇▇▇▇▇▇
▇▇▇▇▇▇ Road to the POINT OF BEGINNING and containing 0.094 acres (4,115 square
feet) of land.
Exhibit A - Page 4