EX-10.1 2 d241076dex101.htm PURCHASE AND SALE AGREEMENT BETWEEN LEEWARD STRATEGIC PROPERTIES, INC. PURCHASE AND SALE AGREEMENT (Gwinnett Business Center)
Exhibit 10.1
(Gwinnett Business Center)
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made by and between LEEWARD STRATEGIC PROPERTIES, INC., a Delaware corporation (“Seller”), and GLOBAL GROWTH, LP, a Delaware limited partnership (“Purchaser”).
In consideration of the mutual covenants and representations herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:
PURCHASE AND SALE
Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser hereby agrees to purchase from Seller, all of the Seller’s assignable and transferable right, title and interest in and to the following described property (herein collectively called the “Property”):
Land. That certain tract of land (the “Land”) located in the City of Duluth, Gwinnett County, Georgia, being more particularly described on Exhibit A attached hereto and made a part hereof.
Easements. All easements, if any, benefiting the Land or the Improvements (as defined in Section 1.1(d) of this Agreement).
Rights and Appurtenances. All rights and appurtenances pertaining to the Land, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of way.
Improvements. All improvements and related amenities known as “Gwinnett Business Center” (the “Improvements”) in and on the Land, and having an address of 3505, 3555 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Leases. All leases, including any amendments or supplements thereto (collectively, the “Leases,” and individually a “Lease”) of space in the Property, concession leases, and all tenant security deposits held by Seller on the Closing Date (as defined in Section 6.1 of this Agreement).
Tangible Personal Property. All appliances, fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by Seller and located on or about the Land and the Improvements (the “Tangible Personal Property”), all as more specifically set forth in Schedule 1.1 attached hereto and made a part hereof.
Contracts. To the extent assignable without the consent of third parties, the Contracts (as defined in Section 4.1(c) of this Agreement).
Intangible Property. To the extent assignable without the consent of third parties, all intangible property (the “Intangible Property”), if any, owned by Seller and pertaining to the Land, the Improvements, or the Tangible Personal Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans and landscape plans.
Independent Consideration. Upon execution of this Agreement, Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND NO/100 DOLLARS ($50.00) (the “Independent
Page 1
Consideration”), as consideration for Purchaser’s right to purchase the Property and for Seller’s execution, delivery and performance of this Agreement. The Independent Consideration is in addition to and independent of any other consideration or payment provided for in this Agreement, is non refundable and shall be retained by Seller notwithstanding any other provision of this Agreement.
PURCHASE PRICE
Purchase Price. The purchase price (the “Purchase Price”) for the Property shall be FOURTEEN MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($14,100,000.00) and shall be paid in cash by Purchaser to Seller at the Closing (as defined in Section 6.1 of this Agreement) by wire transfer in accordance with wire transfer instructions to be provided by Seller.
▇▇▇▇▇▇▇ MONEY
3.1 ▇▇▇▇▇▇▇ Money. Purchaser shall deliver to the Title Company (as defined in Section 6.1 of this Agreement) within two (2) business days after the date a fully-executed copy of this Agreement is delivered to the Title Company by Seller, by wire transfer in accordance with wire transfer instructions provided by the Title Company, the amount of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) (which amount is herein called the “▇▇▇▇▇▇▇ Money”) to be invested by the Title Company in a non-interest bearing account as Purchaser and Seller shall direct. Seller shall have the option of terminating this Agreement if the full amount of ▇▇▇▇▇▇▇ Money is not delivered to the Title Company as prescribed in this Section 3.1. Purchaser agrees to promptly deliver or cause the Title Company to deliver written acknowledgment by the Title Company that the ▇▇▇▇▇▇▇ Money has been received by and is being held by the Title Company pursuant to the terms of this Agreement. If the sale of the Property is consummated under this Agreement, the ▇▇▇▇▇▇▇ Money shall be paid to Seller and applied to the payment of the Purchase Price at Closing. If Purchaser terminates this Agreement in accordance with any right to terminate granted to Purchaser by the terms of this Agreement, the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser, and no party hereto shall have any further obligations under this Agreement except for such obligations which by their terms expressly survive the termination of this Agreement (the “Surviving Obligations”). Purchaser agrees to deliver to Seller copies of all Reports (as defined in Section 4.2 of this Agreement) no more than thirty (30) days following the time the notice to terminate this Agreement is given. The obligations to deliver the Reports shall survive the termination of this Agreement.
CONDITIONS TO CLOSING
Seller’s Obligations. Seller shall, to the extent not previously delivered, deliver to Purchaser (at Purchaser’s expense), within ten (10) days after the Effective Date (as defined in Section 10.13 of this Agreement) hereof, the following:
Title Commitment. Commitment for Owner’s Policy of Title Insurance (the “Title Commitment”) with respect to the Property, issued by the Title Company, and legible copies of any restrictive covenants, easements, and other items listed as title exceptions therein.
Survey. An existing survey of the Property, if any (the “Existing Survey”). Purchaser, at Purchaser’s sole cost and expense, may update the Existing Survey (and have it re-certified to include Seller) or have a new survey prepared based on the Existing Survey, if any (the updated or new survey shall be hereinafter referred to as the “Survey”), on or before the expiration of the Approval Period (as defined in Section 4.1.1 of this Agreement) and deliver a copy of such Survey to Seller and Title Company on or before the expiration of the Approval Period.
Page 2
Contracts. Copies of all contracts pertaining to the Property, and not cancelable on thirty (30) days’ notice without penalty or premium (the “Contracts”), including, but not limited to, service contracts, equipment leases and maintenance contracts, to the extent in the possession of Seller.
Rent Roll. A rent roll describing all Leases of space in the Improvements as of the last month Seller has received such information from ▇▇▇▇▇▇▇ Realty Group (“Property Manager”).
Environmental Report. That certain Phase I Environmental Site Assessment dated as of November 9, 2010 and prepared by Targus Associates, LLC (delivered to Purchaser pursuant to that certain letter agreement between Seller and Purchaser dated July 13, 2011).
Other Due Diligence. To the extent available and not otherwise delivered pursuant to items (a) through (e) above, those items contained on Schedule 4.1(e) of this Agreement.
Seller’s failure to deliver to Purchaser items (a) through (e) above within ten (10) days after the Effective Date shall not result in the extension of the Approval Period, and Purchaser’s sole remedy therefor shall be Purchaser’s right to terminate this Agreement by delivering written notice thereof to Seller within twenty (20) days after the Effective Date hereof and receive a return of the ▇▇▇▇▇▇▇ Money, in which event neither party shall have any obligation hereunder except for the Surviving Obligations.
Purchaser’s Satisfaction. During the forty-five (45) day period commencing on the Effective Date (the “Approval Period”), the following matters shall be conditions precedent to Purchaser’s obligations under this Agreement:
Purchaser’s being satisfied, in Purchaser’s sole discretion, that the Property is suitable for Purchaser’s intended uses; and
Purchaser’s being satisfied, in Purchaser’s sole discretion, with the items listed above in Section 4.1(a) through Section 4.1(f) above, including the information reflected therein.
If Purchaser is not satisfied in its sole discretion as to the suitability of the Property for Purchaser’s intended uses or any of the items listed above in Section 4.1(a) through Section 4.1(f) above, or for any reason or for no reason whatsoever Purchaser may give notice of Purchaser’s decision to terminate this Agreement to Seller on or before the expiration of the Approval Period, whereupon this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the ▇▇▇▇▇▇▇ Money, and neither party shall have any further obligation hereunder except for the Surviving Obligations. If Purchaser fails to terminate this Agreement by giving notice thereof to Seller on or before the expiration of the Approval Period that Purchaser is not satisfied with the suitability of the Property or any of the items listed in Section 4.1(a) through Section 4.1(f) above, Purchaser shall be deemed to be satisfied with such matters and the conditions precedent in this Section 4.1.1 shall be deemed to be satisfied.
Title Commitment and Survey.
In the event (i) the Survey shows any easement, right-of-way, encroachment, conflict, protrusion or other matter affecting the Property that is unacceptable to Purchaser, or (ii) any exceptions appear in the Title Commitment other than the standard printed exceptions set forth in the standard ALTA form of Commitment for Title Insurance that are unacceptable to Purchaser, Purchaser shall by the expiration of the Approval Period, notify Seller in writing of such facts and the reasons therefor (“Purchaser’s Objections”). Upon the expiration of said Approval Period, except for Purchaser’s Objections if same are timely raised, Purchaser shall be deemed to have accepted the form and substance of the Survey, all matters shown thereon, all exceptions to the Title Commitment and other items shown thereon. Notwithstanding anything to the contrary contained herein, Seller shall have no obligations to take any steps or bring any action or proceeding or otherwise to incur any
Page 3
effort or expense whatsoever to eliminate or modify any of the Purchaser’s Objections. In the event Seller is unable or unwilling to eliminate or modify all of Purchaser’s Objections to the reasonable satisfaction of Purchaser, Purchaser may (as its sole and exclusive remedy) terminate this Agreement by delivering notice thereof in writing to Seller by the earlier to occur of (i) the Closing Date or (ii) five (5) days after Seller’s written notice to Purchaser of Seller’s intent to not cure one or more of such Purchaser’s Objections; in which event, the ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and neither party shall have any obligations hereunder other than the Surviving Obligations. Notwithstanding anything contained in this Section 4.1.2 to the contrary, in the event Purchaser does not receive all items to be delivered to Purchaser under Section 4.1(a) and (b) in the time frame set forth therein, Purchaser’s rights shall be to terminate this Agreement as set forth in Section 4.1, and such rights shall not be modified or extended by the terms of this Section 4.1.2.
The term “Permitted Encumbrances” as used herein includes: (i) any easement, right of way, encroachment, conflict, discrepancy, overlapping of improvements, protrusion, lien, encumbrance, restriction, condition, covenant, exception or other matter with respect to the Property that is reflected or addressed on the Survey or the Title Commitment to which Purchaser fails to timely object pursuant to Section 4.1.2(a) of this Agreement; (ii) any Purchaser’s Objection that remains uncured, for whatever reason, at the earlier to occur of (A) Closing hereunder or (B) five (5) business days after Seller notifies Purchaser that Seller is unwilling or unable to cure or modify Purchaser’s Objections to the reasonable satisfaction of Purchaser; and (iii) the rights and interests of parties claiming under the Leases.
(i) Limitations of Seller’s Obligations. Notwithstanding anything contained herein to the contrary, other than the Mandatory Cure Items (as such term is hereinafter defined), Seller shall have no obligation to take any steps, bring any action or proceeding or incur any effort or expense whatsoever to eliminate, modify or cure any objection Purchaser may have pursuant to Section 4.1.1, Section 4.1.2, Section 4.2, or Section 5.1.
(ii) Notwithstanding anything set forth in this Agreement to the contrary, Seller shall be obligated to remove, bond around or cause the Title Company to endorse over at Closing and at Seller’s expense; (i) any mortgages or deeds to secure debt securing any financing obtained or expressly assumed by Seller; (ii) any mechanics or materialmen’s liens for work done pursuant to a contract executed by Seller which remains unpaid; and (iii) any judgment liens, U.S. tax liens or real property tax liens (except for any taxes not yet due and payable) against Seller for a sum certain; provided, however, that Seller shall not be obligated to expend more than $25,000.00 in connection with the liens referenced in (ii) above (collectively, the “Mandatory Cure Items”). For the purposes of this Section 4.1.4, any Mandatory Cure Item shall be deemed removed if the Title Company issues an Owner’s Policy (as defined in Section 6.5(b) below) that does not take exception for such Mandatory Cure Item.
Inspection. Purchaser may inspect, test, and survey: (a) the Property, (b) all financial records pertaining to the operation of the Property, and (c) photocopies of all Leases and Contracts in the possession or control of Seller, at any reasonable time during business hours at any time during the Approval Period (collectively, the “Purchaser Investigations”). Notwithstanding the foregoing, Purchaser must obtain Seller’s prior written approval of the scope and method of any environmental testing or investigation (other than a non-intrusive Phase I environmental inspection) and any inspection which would materially alter the physical condition of the Property, prior to Purchaser’s commencement of such inspections or testing. In any event, Seller and its representatives, agents, and/or contractors shall have the right to be present during any of the Purchaser Investigations. If the Purchaser Investigations reveal any fact or condition unacceptable to Purchaser, Purchaser shall notify Seller in writing prior to the expiration of the Approval Period of such unacceptable fact or condition and Seller shall have the right (without any obligation to do so) to correct same by the Closing Date. If Seller does not correct such unacceptable fact or condition by the Closing Date, Purchaser may terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations. If Purchaser does not give such notification to Seller in writing prior to the expiration of the Approval Period, the
Page 4
said investigations of the Property shall be deemed satisfactory to Purchaser and Purchaser shall be deemed to have agreed to assume all obligations from and after the date of Closing with respect to the Leases and the Contracts. All information provided by Seller to Purchaser or obtained by Purchaser relating to the Property in the course of the Purchaser Investigations, including, without limitation, any environmental assessment or audit (collectively, the “Reports”) shall be treated as confidential information by Purchaser and Purchaser shall instruct all of its employees, agents, representatives and contractors as to the confidentiality of all such information. Other than research of any applicable general land use and other laws and/or any public records and databases, and the routine communications with regulatory or governmental agencies and their individual employees associated therewith, neither Purchaser nor any Purchaser Representative (defined in Section 4.2.1(a) of this Agreement) shall communicate with any regulatory or governmental agencies or their individual employees concerning the Property, without the prior written consent of Seller, which shall be given or withheld in Seller’s sole discretion. Neither Purchaser nor any Purchaser Representative shall contact or communicate with any tenant, occupant, or leasing agent of the Property or any governmental agent regarding the Property without prior written notice to Seller, and Seller reserves the right to participate in any such contact; provided, however, that Purchaser may review governmental records and make routine contact with governmental officials in connection with Purchaser’s customary due diligence activities pursuant to this Agreement such as, but not limited to, confirmation of zoning and review of ordinance or statutory compliance without first providing notice. Seller acknowledges that Purchaser, at its sole expense, will be conducting an audit of property-level financials as specified by Rule 3-14 of Regulation S-X of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and Seller agrees to reasonably cooperate and assist Purchaser in obtaining any and all such data and financial information that shall be reasonably available to Seller (including, without limitation, data and information obtainable from Property Manager), and permit Purchaser’s auditors reasonable access to such information.
(iii) Before and during Purchaser Investigations, Purchaser and Purchaser’s representatives, including Purchaser’s engineers, contractors and environmental consultants (collectively, the “Purchaser Representatives”) conducting any Purchaser Investigation shall maintain workers’ compensation insurance in accordance with applicable law, and Purchaser, and the applicable Purchaser Representative conducting any Purchaser Investigation, shall maintain (1) commercial general liability insurance, on a per occurrence basis, with limits of at least Three Million Dollars ($3,000,000.00) for bodily or personal injury or death, (2) property damage insurance in the amount of at least One Million Dollars ($1,000,000.00), and (3) contractual liability insurance, on a per occurrence basis, with respect to Purchaser’s obligations under this Section 4.2. Purchaser shall deliver to Seller evidence of such workers’ compensation insurance and a certificate evidencing the commercial general liability, property damage and contractual liability insurance before conducting any Purchaser Investigation on the Property. Each such insurance policy shall be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and shall otherwise be subject to Seller’s prior approval. Such insurance policies shall name as additional insureds Seller, Property Manager and such other parties holding insurable interests as Seller may designate. Such insurance shall be primary to any insurance maintained by Seller or Property Manager as to claims arising from, related to or in connection with the acts, errors or omissions of Purchaser and/or Purchaser’s Representatives.
Purchaser shall, at its own expense, immediately fill and compact any holes, and otherwise restore any damage to the Property related to the Purchaser Investigations. Upon Purchaser’s completion of Purchaser Investigations, Purchaser shall be responsible for returning the Property to substantially the condition existing prior to Purchaser’s entry. Neither Purchaser nor any Purchaser Representative shall damage any part of the Property or any personal property owned or held by Seller, Property Manager or any tenant or third party.
Purchaser shall indemnify, defend and hold Seller and the other Releasees (as defined in Section 5.3) harmless from any and all losses, costs, liens, claims, causes of action, liability, damages, expenses and liability (including, without limitation, court costs and reasonable attorneys’ fees) incurred in connection with or arising in any way from (1) any Purchaser Investigation conducted by Purchaser and/or any
Page 5
Purchaser Representative, or (2) any breach by Purchaser and/or any Purchaser Representative of the terms of this Section 4.2, even though any such loss is caused or alleged to be caused by the negligence or fault of any Releasees (other than any such loss arising solely as the result of the gross negligence or willful misconduct of Seller or its agents). This indemnity is intended to indemnify the Releasee against the consequences of their own negligence or fault as provided above when any Releasee is solely, jointly, comparatively, contributively, or concurrently negligent with Purchaser and/or any Purchaser Representative. Notwithstanding the foregoing, in no event shall the Purchaser’s indemnity obligations hereunder extend to any claim by Seller arising solely by reason of the mere discovery of any adverse conditions or legal noncompliance on the Property (as opposed to causing or the disturbance or exacerbation of any such adverse conditions or legal noncompliance) by Purchaser or any Purchaser Representative during any Purchaser Investigation. This indemnity provision shall survive termination or expiration of this Agreement for a period commensurate with the expiration of any applicable statute of limitations. If any proceeding is filed for which indemnity is required hereunder, Purchaser agrees, upon request therefor by any of the Releasees, to defend the indemnified party in such proceeding at its sole cost utilizing counsel satisfactory to the indemnified party, in its reasonable discretion.
Purchaser’s Representations and Warranties. Purchaser represents and warrants to Seller that (a) Purchaser is a partnership or limited liability company, duly organized and in good standing under the laws of the State of Delaware, will be qualified to do business in the State of Georgia on or prior to the Closing Date and has the power to enter into this Agreement and to execute and deliver this Agreement and to perform all duties and obligations imposed upon it hereunder, and Purchaser has obtained all necessary partnership and corporate authorizations required in connection with the execution, delivery and performance contemplated by this Agreement and has obtained the consent of all entities and parties necessary to bind Purchaser to this Agreement, and (b) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Purchaser, or any partner or related entity or affiliate of Purchaser, is a party or by which Purchaser, any partner or related entity or affiliate of Purchaser, or any of Purchaser’s assets is bound, and (c) neither Purchaser nor any partner, related entity or affiliate of Purchaser is in any way affiliated with Seller, GE Capital Realty Group, Inc., General Electric Capital Corporation, General Electric Realty Advisors, Inc., General Electric Company or any affiliate of General Electric Company, and (d) that, with respect to each source of funds to be used by it to purchase the Property (respectively, the “Source”), at least one of the following statements shall be accurate as of the Closing Date: (i) the Source does not include the assets of (A) an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which is subject to Title I of ERISA, or (B) a “plan” as defined in Section 4975(a) of the Internal Revenue Code of 1986, as amended (“Code”), or (ii) the Source includes the assets of (A) an “employee benefit plan” as defined in Section 3(3) of ERISA or (B) a “plan” as defined in Section 4975 of the Code (each of which has been identified to the Seller in writing pursuant to this Section 4.3 at least ten (10) business days prior to the Closing Date), but the use of such Source to purchase the Property will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. Purchaser further represents, warrants and covenants to Seller as follows:
Compliance with International Trade Control Laws and OFAC Regulations.
Purchaser is not now nor shall it be at any time until Closing an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity (collectively, a “Person”) with whom a United States citizen, entity organized under the laws of the United States or its territories or entity having its principal place of business within the United States or any of its territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) (including those executive orders and lists published by OFAC with respect to Persons that have been
Page 6
designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC [“Specially Designated Nationals and Blocked Persons”]) or otherwise.
Neither Purchaser nor any Person who owns a direct interest in Purchaser (collectively, a “Purchaser Party”) is now nor shall be at any time until Closing a Person with whom a U.S. Person, including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
Purchaser’s Funds.
Purchaser has taken, and shall continue to take until Closing, such measures as are required by law to assure that the funds used to pay to Seller the Purchase Price are derived (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
To the best of Purchaser’s knowledge after making due inquiry, neither Purchaser nor any Purchaser Party, nor any Person providing funds to Purchaser (i) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti Money Laundering Laws; (ii) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws (as defined herein); or (iii) has had any of its funds seized or forfeited in any action under any Anti Money Laundering Laws. For purposes of this Subsection (b), the term “Anti-Money Laundering Laws” shall mean laws, regulations and sanctions, state and federal, criminal and civil, that (1) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (2) limit commercial transactions with designated countries or individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the interests of the United States; (3) require identification and documentation of the parties with whom a Financial Institution conducts business; or (4) are designed to disrupt the flow of funds to terrorist organizations. Such laws, regulations and sanctions shall be deemed to include the USA PATRIOT Act of 2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1 et. seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
Purchaser Compliance with Patriot Act. Purchaser is in compliance with any and all applicable provisions of the Patriot Act.
Cooperation with Seller. After the Closing Date, Purchaser agrees to cooperate with Seller, and to cause each Purchaser Party to cooperate with Seller, in providing such reasonable additional information and documentation on Purchaser’s and each Purchaser Party’s legal or beneficial ownership, policies, procedures and sources of funds as Seller deems necessary or prudent to enable Seller to comply with Anti Money Laundering Laws as now in existence or hereafter amended.
The Purchaser’s representations and warranties set forth in this Section 4.3 shall survive the Closing or termination of this Agreement for a period of one (1) year. Purchaser’s representations and warranties contained herein must be true and correct through the Closing Date, and Purchaser’s failure to notify Seller prior to the Closing Date of any inaccuracies shall be a default by Purchaser under this Agreement.
Page 7
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that Seller has the full partnership/corporate right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement, and neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound.
Know Your Customer. Purchaser acknowledges that Seller must complete certain “know your customer” procedures regarding Purchaser, including, without limitation, understanding the principals and other investors in Purchaser and Purchaser’s source of funds. To this end, Purchaser shall cooperate with Seller in these efforts, including, without limitation, delivering to Seller upon request the full names of all the individuals and business entities involved in the transaction on Purchaser’s behalf, all parties contributing or receiving any money, compensation or ownership interests, and a detailed Purchaser organization chart. All such information shall be treated as confidential information by Seller and Seller’s directors, officers, partners, employees, legal counsel, accountants, engineers, architects, financial advisors and similar professionals and consultants, unless such disclosure is required by law. Seller shall have seven (7) days after receiving information reasonably requested by Seller from Purchaser to notify Purchaser of any objection Seller may have. If such notice is not timely given, then the person or entity in question shall be deemed approved. Any person or entity approved or deemed approved shall not be subject to further approval or deemed approval absent a material adverse change in the facts concerning such person or entity. Subject to the preceding sentence, if Seller, in Seller’s sole and absolute discretion, is not satisfied with the results of such “know your customer” due diligence or if Purchaser fails to deliver to Seller all of the information required by Seller, then Seller shall have the right to terminate this Agreement, which right must be exercised within seven (7) days after receipt of the information reasonably requested from Purchaser by Seller, which right may be exercised only upon prior written notice delivered to Purchaser, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and neither party shall have any further obligations hereunder except for the Surviving Obligations.
Tenant Estoppel Certificates. Seller agrees to submit or cause Property Manager to submit within five (5) business days after the Effective Date hereof to each and every tenant or lessee under a Lease a request for such tenant or lessee to execute and deliver to Purchaser a tenant estoppel certificate with respect to its Lease in the form attached hereto as Exhibit G or on the form promulgated by the tenant and reasonably acceptable to Purchaser, or required by the applicable Lease. It shall be a condition precedent to Purchaser’s obligation to purchase the Property that Purchaser receive and reasonably approve tenant estoppel certificates from all tenants or lessees leasing in excess of 5,000 gross square feet (“Major Tenants”) and from a sufficient number of non-Major Tenants so that Purchaser shall have received estoppel certificates from such number of tenants or lessees which collectively occupy at least eighty percent (80%) of the leased square footage of the Property (collectively, the “Required Estoppels”) on the form of the estoppel certificates attached as Exhibit G or on the form promulgated by the tenant and reasonably acceptable to Purchaser, or required by the applicable Lease. Seller shall deliver or cause to be delivered to Purchaser the Required Estoppels within the earlier to occur of (i) two (2) business days of Seller’s receipt of same, or (ii) thirty (30) days after the Effective Date. Purchaser shall have until the expiration of the Approval Period to disapprove of any such Required Estoppel, it being understood that if Purchaser does not disapprove of any Required Estoppel before the expiration of the Approval Period, then Purchaser shall be deemed to have approved such Required Estoppel. Seller shall make a commercially reasonable number of oral and a minimum of one (1) written request for the Required Estoppels, but shall not be obligated to expend any funds in connection with obtaining any of the estoppel certificates, including the Required Estoppels described in this Section 4.6, and the failure of Seller to obtain any such estoppel certificates, including the Required Estoppels shall not be a breach or default hereunder. If Purchaser does not receive and reasonably approve the Required Estoppels on or before the end of the Approval Period, Seller may extend the Approval Period up to fourteen (14) days for the limited purpose of allowing Seller to obtain the Required Estoppels. If Purchaser does not receive and
Page 8
reasonably approve the Required Estoppels on or before the expiration of such fourteen (14) day extension of the Approval Period, if applicable, Purchaser may either (i) terminate this Agreement in writing delivered to Seller on or before the expiration of such extended Approval Period, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and neither party shall have any further obligations hereunder other than the Surviving Obligations, or (ii) waive the foregoing condition precedent and proceed to Closing. If Purchaser shall not have terminated this Agreement under this Section 4.6 prior to the expiration of the Approval Period or the extension thereof as provided for herein, Purchaser shall be deemed for all purposes to be satisfied with the responses to Seller’s requests for tenant estoppel certificates, including the Required Estoppels and the form and substance of each tenant estoppel certificate and shall have no further right to terminate this Agreement based on the response or lack thereof with respect to the tenant estoppel certificates, including the Required Estoppels.
Subordination, Non-Disturbance and Attornment Agreements. If requested by Purchaser, Seller agrees to use commercially reasonable efforts to request or cause Property Manager to request a subordination, non-disturbance and attornment agreement from a tenant or tenants as Purchaser’s lender requests, in the form required by Purchaser’s lender if same is required by such lender, provided, however, that receipt of any such subordination, non-disturbance and attornment agreement(s) by Purchaser or its lender shall not be a condition precedent to Purchaser’s obligation to purchaser the Property at the Closing.
Environmental Condition Extension; Termination. The obligations of Seller hereunder are subject to and contingent upon the following:
In the event that subsequent to the execution of this Agreement Seller obtains knowledge of, or Purchaser’s inspection of the Property reveals, the presence of any Hazardous Materials (as defined in Section 5.2.1 of this Agreement) or the violation or potential violation of any Environmental Requirements (as defined in Section 5.2.3 of this Agreement) (an “Environmental Condition”), which Seller, in its sole judgment, determines could constitute a potential liability to Seller after the Closing or should be remedied prior to the sale of the Property, Seller shall have the right upon written notice to Purchaser on or before the scheduled Closing Date either (i) to extend the Closing Date for the period of time necessary to evaluate the possibility of remediating the Defective Condition and, if Seller so elects, to complete such remediation at Seller’s sole cost and expense, or (ii) to terminate this Agreement upon written notice to Purchaser, in which event the ▇▇▇▇▇▇▇ Money shall be refunded to Purchaser, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations. The terms of this Section 4.8 are solely for the benefit of Seller and Purchaser shall have no additional right or remedy hereunder as a result of the exercise by Seller of its rights under this Section 4.8.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 4.4 AND THE LIMITED WARRANTY OF TITLE AS SET OUT IN THE DEED, AS DEFINED BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
Page 9
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, EXCEPT WITH RESPECT TO THOSE LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN SECTION 4.4 HEREOF, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN “AS IS,” “WHERE IS” CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
Environmental Definitions.
Hazardous Materials. “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 ▇.▇.▇. §▇▇▇▇ et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 ▇.▇.▇. §▇▇▇▇ et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non friable; (vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under Environmental Requirements (as defined in Section 5.2.2 of this Agreement) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under
Page 10
Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass.
Environmental Requirements. “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, ambient air, surface water, ground water or land or soil).
Assumption/Release. UPON CLOSING, PURCHASER ASSUMES THE RISK OF ADVERSE MATTERS, INCLUDING ADVERSE PHYSICAL CONDITIONS, DEFECTS, CONSTRUCTION DEFECTS, ENVIRONMENTAL, HEALTH, SAFETY AND WELFARE MATTERS WHICH MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS. AS OF THE CLOSING DATE, PURCHASER, FOR ITSELF AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES AND FOREVER DISCHARGES CURRENT MANAGER, SELLER, SELLER’S AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, AFFILIATES, INTEREST HOLDERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL RIGHTS, CLAIMS AND DEMANDS AT LAW OR IN EQUITY, WHETHER KNOWN OR UNKNOWN AT THE TIME OF THIS AGREEMENT, WHICH PURCHASER HAS OR MAY HAVE IN THE FUTURE, ARISING OUT OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS IN TORT OR CONTRACT AND ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION ARISING UNDER CERCLA, RCRA, OR ANY SIMILAR FEDERAL, STATE OR LOCAL STATUTE, RULE OR REGULATION, AND ALL OTHER TITLE OR DUE DILIGENCE MATTERS DESCRIBED ABOVE IN THIS SECTION, ARTICLE 4, ARTICLE 5 OR ANY OTHER PROVISIONS OF THIS AGREEMENT. PURCHASER HEREBY ASSUMES THE RISK OF CHANGES IN APPLICABLE LAWS AND REGULATIONS RELATING TO PAST, PRESENT AND FUTURE ENVIRONMENTAL CONDITIONS AND THE RISK THAT ADVERSE PHYSICAL CHARACTERISTICS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS MATERIALS OR OTHER CONTAMINANTS, MAY NOT HAVE BEEN REVEALED BY ITS INVESTIGATION. PURCHASER HEREBY WAIVES ANY AND ALL OBJECTIONS AND COMPLAINTS, WHETHER KNOWN OR UNKNOWN, CONCERNING THE PHYSICAL CHARACTERISTICS AND ANY EXISTING CONDITIONS OF THE PROPERTY, INCLUDING SELLER’S OBLIGATIONS UNDER THE LEASES RELATING TO THE PHYSICAL, ENVIRONMENTAL OR LEGAL COMPLIANCE STATUS OF THE PROPERTY, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE. PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER AND ALL OTHER RELEASEES FROM AND AGAINST ANY AND ALL MATTERS AFFECTING THE PROPERTY, INCLUDING ANY AND ALL COMPLAINTS OR OBJECTIONS CONCERNING THE PHYSICAL CHARACTERISTICS OF THE PROPERTY OR EXISTING PROPERTY CONDITIONS. PURCHASER WAIVES THE BENEFITS OF ANY LAW WHICH GENERALLY PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM, MAY HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. THE PROVISIONS OF THIS SECTION 5.3 SHALL SURVIVE INDEFINITELY THE CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE CLOSING DOCUMENTS.
Page 11
CLOSING
Closing. The Closing (the “Closing”) shall be held at the offices of Republic Title of Texas, Inc. (the “Title Company”) at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, at a date designated by Seller and Purchaser on or before fifteen (15) days after the expiration of the Approval Period (the “Closing Date”), unless the parties mutually agree in writing upon another place, time or date.
Possession. Possession of the Property shall be delivered to Purchaser at the Closing.
Proration. All rents, other amounts payable by the tenants under the Leases, income, utilities and all other operating expenses with respect to the Property for the month in which the Closing occurs, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the date Seller receives the Purchase Price in immediately available funds with Seller receiving the benefits and burdens of ownership on the Closing Date.
If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be upon the basis of such rents, other amounts and other income actually received by Seller. Subsequent to the Closing, if any such rents and other income are actually received by Purchaser, all such amounts shall first be applied to post closing rents due to Purchaser which are past due and the balance shall be immediately paid by Purchaser to Seller for any such amounts due to Seller for the period prior to Closing. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to expend any funds or institute any litigation in its collection efforts. Nothing in this Section 6.3(a) shall restrict Seller’s right to collect delinquent rents directly from a tenant by any legal means.
If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. In the event the Property has been assessed for property tax purposes at such rates as could result in “roll back” taxes upon changes in land usage or ownership of the Property, Purchaser agrees to pay all such taxes and indemnify and save Seller harmless from and against any and all claims and liabilities for such taxes.
If the Closing shall occur before the actual amount of utilities and all other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment.
If at any time following the Closing, the amount of an item listed in Section 6.3(a), (b) or (c) above shall prove to be incorrect (whether as the result of an error in calculation or a lack of complete and accurate information as of the Closing) or otherwise require adjustment as a result of any year-end or periodic reconciliations, the party owing money as a result of such error or adjustment shall promptly pay to the other party the sum necessary to correct such error or make sure adjustment upon receipt of reasonable proof of same, provided that such proof is received by the party from
Page 12
whom payment is to be made on or before one (1) year after the Closing (the “Post Closing Adjustment Period”). In order to enable Seller to determine whether any such delayed adjustment is necessary, Purchaser shall provide to Seller current operating and financial statements for the Property and copies of any correspondence and statements in connection with any reconciliation promptly after the same are prepared, but, in any event, no later than the date one (1) month prior to the expiration of the Post Closing Adjustment Period.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall survive the Closing.
Closing Costs. Except as otherwise expressly provided herein, Seller shall pay, on the Closing Date (i) one half (1/2) of any escrow fees and other customary charges of the Title Company, (ii) the title insurance premium for the base Owner’s Policy (as defined in Section 6.5(b)), and (iii) all transfer taxes. Purchaser shall pay, on the Closing Date, (i) the cost of any endorsements or additional coverage over the base Owner’s Policy, (ii) the cost of the Survey, (iii) all recording costs, (iv) taxes related to Purchaser’s deed to secure debt, if any, and (v) and one half (1/2) of any escrow fees and other customary charges of the Title Company. Except as otherwise provided herein, each party shall pay its own attorneys’ fees.
Seller’s Obligations at the Closing. At the Closing, or at such other time as indicated below, Seller shall deliver to Purchaser the following:
Deed. A Limited Warranty Deed (the “Deed”) conveying the Land and the Improvements to Purchaser in the form attached to this Agreement as Exhibit B.
Title Policy. Within a reasonable period of time following Closing, an Owner’s Policy of Title Insurance in ALTA standard form (the “Owner’s Policy”), naming Purchaser as insured, in the amount of the Purchase Price, insuring that Purchaser owns good and marketable fee simple title to the Property, subject only to the Permitted Encumbrances. Purchaser, at Purchaser’s sole expense, may elect to cause the Title Company to amend the survey exception to read “any shortages in area” or elect to obtain additional coverage or endorsements over the base Owner’s Policy, but obtaining such additional coverage or endorsements will not be a condition precedent to Purchaser’s Closing obligations pursuant to this Agreement.
Evidence of Authority. Such organizational and authorizing documents of Seller as shall be reasonably required by the Title Company to evidence Seller’s authority to consummate the transactions contemplated by this Agreement.
Foreign Person. An affidavit of Seller certifying that Seller is not a “foreign person,” as defined in the federal Foreign Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform Act, as amended.
Leases. The originals of all of the Leases and all security deposits, if any, in the possession of Seller on the Closing Date. Seller shall have no liability to Purchaser for any tenant security deposit not actually paid to Seller.
Contracts. The originals of all of the Contracts, if any, in the possession of Seller.
Property Items. All keys and all assignable licenses and permits, if any, in the possession or control of Seller or Seller’s agents, together with such non-confidential leasing and property files and records which are material in connection with the continued operation, leasing and maintenance of the Property.
Affidavit of Seller’s Residence. Affidavit of Seller’s residence if Seller is, or is deemed, a “resident” of the State of Georgia, or an Affidavit of Seller’s Gain if Seller is not a “resident” of the state of Georgia.
Page 13
Seller’s Broker’s Affidavit. An Affidavit of Seller’s Broker in the form ordinarily and customarily given by sellers of real property in the state of Georgia.
Purchaser’s Obligations at the Closing. In connection with the Closing, Purchaser shall deliver to Seller and/or the Title Company the following:
Purchase Price. The Purchase Price shall be delivered to Seller on the Closing Date by wire transfer of immediately available funds.
Post Effective Date Lease Expenses. Immediately available funds in an amount equal to costs and expenses incurred and paid by Seller under (i) any new lease of space in the Improvements and (ii) any extension, renewal or modification of any lease of space in the Improvements, executed after the Effective Date. Said costs and expenses shall include, but not be limited to, costs incurred and paid by Seller for tenant improvements, leasing commissions, capital improvements, and reasonable attorney’s fees.
Evidence of Authority. Such organizational and authorizing documents of Purchaser as shall be reasonably required by Seller and/or the Title Company authorizing Purchaser’s acquisition of the Property pursuant to this Agreement and the execution of this Agreement and any documents to be executed by Purchaser at the Closing.
Certificate. Taxpayer I.D. Certificate, in the form attached to this Agreement as Exhibit D.
Purchaser’s Broker’s Affidavit. If applicable, an affidavit of Purchaser’s broker in the form ordinarily and customarily given by buyers of real property in the state of Georgia.
Documents to be Executed by Seller and Purchaser. At the Closing, Seller and Purchaser shall also execute and deliver the following:
Closing Statement. An executed counterpart settlement statement setting forth amounts paid by or on behalf of or credited to Purchaser and Seller.
Tenant Notices. Signed statements or notices to all tenants of the Property, in the form attached to this Agreement as Exhibit F, notifying such tenants that the Property has been transferred to Purchaser and that Purchaser is responsible for security deposits, if any (specifying the amounts of such deposits, if any).
▇▇▇▇ of Sale, Assignment and Assumption of Personal Property, Service Contracts, Warranties and Leases. ▇▇▇▇ of Sale, Assignment and Assumption of Personal Property, Service Contracts, Warranties and Leases (the “Assignment”) in the form attached to this Agreement as Exhibit C.
Broker’s Lien. Lien Waiver Affidavits from each of Seller’s broker and Purchaser’s broker, as applicable.
Transfer Tax Declaration. A form PT-61 Real Estate Transfer Tax Declaration form.
RISK OF LOSS
Condemnation. If, prior to the Closing, action is initiated to take any of the Property by eminent domain proceedings or by deed in lieu thereof, Purchaser may either at or prior to Closing (a) terminate this
Page 14
Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be refunded to Purchaser, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations, or (b) consummate the Closing, in which latter event all of Seller’s assignable right, title and interest in and to the award of the condemning authority shall be assigned to Purchaser at the Closing and there shall be no reduction in the Purchase Price.
Casualty. Except as provided in Sections 4.2 and 5.1 of this Agreement, Seller assumes all risks and liability for damage to or injury occurring to the Property by fire, storm, accident, or any other casualty or cause until the Closing has been consummated. If the Property, or any part thereof, suffers any damage in excess of $250,000.00 prior to the Closing from fire or other casualty, which Seller, at its sole option, does not elect to repair, Purchaser may either at or prior to Closing (a) terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be refunded to Purchaser, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations, or (b) consummate the Closing, in which latter event all of Seller’s right, title and interest in and to the proceeds of any insurance covering such damage (less an amount equal to any expenses and costs incurred by Seller to repair or restore the Property and any portion of such proceeds paid or to be paid on account of the loss of rents or other income from the Property for the period prior to and including the Closing Date, all of which shall be payable to Seller), to the extent the amount of such insurance does not exceed the Purchase Price, shall be assigned to Purchaser at the Closing. If the Property, or any part thereof, suffers any damage less than $250,000.00 prior to the Closing, Purchaser agrees that it will consummate the Closing and accept the assignment of the proceeds of any insurance covering such damage plus an amount equal to Seller’s deductible under its insurance policy, such amount to be credited against the Purchase Price at Closing.
DEFAULT
Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the ▇▇▇▇▇▇▇ Money, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations, or (b) pursue the remedy of specific performance of Seller’s obligations under this Agreement; provided, however, that (i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the default by Seller, (B) Purchaser is not in default under this Agreement beyond any applicable notice and cure period, (C) Purchaser has tendered an amount equal to three percent (3%) of the Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Breach by Purchaser.
If Purchaser fails to comply with any of the terms, conditions or obligations of this Agreement, Seller may terminate this Agreement and thereupon shall be entitled to the ▇▇▇▇▇▇▇ Money as liquidated damages (and not as a penalty) and as Seller’s sole remedy and relief hereunder (except
Page 15
for the Surviving Obligations). Seller hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Purchaser, Seller will first deliver written notice of said default to Purchaser, and if Purchaser so elects, Purchaser shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Purchaser’s receipt of such notice; provided, however, that in the event Purchaser fails to consummate the closing on the Closing Date, Purchaser shall have the opportunity, but not the obligation, to cure such default within five (5) days of the Closing Date; further provided that Purchaser shall not be entitled to any such cure period for a failure to consummate the closing on the Closing Date pursuant to the terms and conditions of this Agreement if such failure is solely due to Purchaser’s failure to fund the Purchase Price on the Closing Date (other than a delay caused by Purchaser’s lender, if any, in which case Purchaser shall be entitled to the aforementioned five (5) day cure period). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that these sums represent reasonable compensation to Seller for such breach.
Notwithstanding the provisions of Section 8.2(a) above, the foregoing shall not in any way limit, affect or impair any of Purchaser’s indemnities as provided in Sections 4.2, 6.3(b) or 10.2 of this Agreement.
FUTURE OPERATIONS
Future Operations.
From the date of this Agreement until the Closing or earlier termination of this Agreement:
Seller shall operate and maintain the Property substantially in accordance with Seller’s past practices with respect to the Property, normal wear and tear excepted;
Seller will perform all of Seller’s obligations under the Contracts. Seller will not, without the prior written consent of Purchaser, modify, enter into, or renew any Contract which cannot be cancelled upon thirty (30) days prior written notice.
From and after the Effective Date until the Closing or earlier termination of this Agreement, Seller will not lease any space in the Improvements except upon the prior written approval of Purchaser (such approval not to be unreasonably withheld or delayed); provided, however, this limitation upon Seller shall not apply with respect to lease renewals, lease extensions, rights of first refusal or offer, or options pursuant to rights granted under leases existing as of the Effective Date. All costs and expenses incurred and paid by Seller under (i) any new lease entered into after the Effective Date and (ii) any extension, renewal or modification of an existing lease entered into after the Effective Date, shall be paid by Purchaser in accordance with Section 6.6(b) of this Agreement. Said costs and expenses shall include, but not be limited to, costs incurred and paid by Seller for tenant improvements, leasing commissions, capital improvements, and reasonable attorney’s fees. If Purchaser does not deliver written notice to Seller of its approval or disapproval of any matters for which Seller seeks Purchaser’s approval as set forth above within five (5) business days after Purchaser’s receipt of Seller’s request for such approval, Purchaser shall be deemed to have approved such matters and to have agreed to assume all obligations with respect thereto.
MISCELLANEOUS
Notices. All notices, demands and requests which may be given or which are required to be given by either party to the other, and any exercise of a right of termination provided by this Agreement, shall be in
Page 16
writing and shall be deemed effective either: (a) on the date personally delivered to the address below, as evidenced by written receipt therefore, whether or not actually received by the person to whom addressed; (b) on the third (3rd) business day after being sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified below; (c) on the first (1st) business day after being deposited into the custody of a nationally recognized overnight delivery service such as Federal Express Corporation, ▇▇▇▇▇ or Purolator, addressed to such party at the address specified below, or (d) on the first (1st) business day after the date delivered by facsimile to the respective numbers specified below. For purposes of this Section 10.1, the addresses of the parties for all notices are as follows (unless changed by similar notice in writing given by the particular person whose address is to be changed):
| If to Seller: | General Electric Credit Equities, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ | |
| with a copy to: | Leeward Strategic Properties, Inc. c/o General Electric Capital Corporation ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇.▇▇▇ | |
| with a copy to: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | |
| If to Purchaser: | CNL Commercial Real Estate ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇ | |
| with a copy to: | Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, P.A. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇.▇▇▇ |
Page 17
| If to Title Company: | Republic Title of Texas, Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
Real Estate Commissions. Seller shall pay to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. (hereinafter called “Agent” whether one or more) upon the Closing of the transaction contemplated hereby, and not otherwise, a cash commission in the amount agreed on in a separate listing agreement between Seller and Agent. Said commission shall in no event be earned, due or payable unless and until the transaction contemplated hereby is closed and fully consummated strictly in accordance with the terms of this Agreement and Seller has received the Purchase Price in immediately available funds; if such transaction is not closed and fully consummated for any reason, including, without limitation, failure of title or default by Seller or Purchaser or termination of this Agreement pursuant to the terms hereof, then such commission will be deemed not to have been earned and shall not be due or payable. Except as set forth above with respect to Agent, neither Seller nor Purchaser has authorized any broker or finder to act on Purchaser’s behalf in connection with the sale and purchase hereunder and neither Seller nor Purchaser has dealt with any broker or finder purporting to act on behalf of any other party. Purchaser agrees to indemnify and hold harmless Seller from and against any and all claims, losses, damages, costs or expenses of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by Purchaser or on Purchaser’s behalf with any broker or finder in connection with this Agreement or the transaction contemplated hereby. Seller agrees to indemnify and hold harmless Purchaser from and against any and all claims, losses, damages, costs or expenses of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by Seller or on Seller’s behalf with any broker or finder in connection with this Agreement or the transaction contemplated hereby. Notwithstanding anything to the contrary contained herein, this Section 10.2 shall survive the Closing or any earlier termination of this Agreement.
Entire Agreement. This Agreement embodies the entire agreement between the parties relative to the subject matter hereof, and there are no oral or written agreements between the parties, nor any representations made by either party relative to the subject matter hereof, which are not expressly set forth herein.
Amendment. This Agreement may be amended only by a written instrument executed by the party or parties to be bound thereby.
Headings. The captions and headings used in this Agreement are for convenience only and do not in any way limit, amplify, or otherwise modify the provisions of this Agreement.
Time of Essence. Time is of the essence of this Agreement; however, if the final date of any period which is set out in any provision of this Agreement falls on a Saturday, Sunday or legal holiday under the laws of the United States or the State of Georgia, then, in such event, the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday.
Governing Law. The validity, construction, enforcement and interpretation of this Agreement, and any claim, controversy or dispute arising under or related to this Agreement, or the rights, duties and relationship of the parties thereto, shall be governed by the laws of the State of Georgia, without regard to the principles thereof regarding conflict of laws, and any applicable laws of the United States of America.
Successors and Assigns; Assignment. This Agreement shall bind and inure to the benefit of Seller and Purchaser and their respective heirs, executors, administrators, personal and legal representatives, successors and permitted assigns. Purchaser shall not assign Purchaser’s rights under this Agreement without
Page 18
the prior written consent of Seller, which consent may be withheld absolutely. In the event Seller consents to such assignment, Purchaser and such assignee shall execute and deliver an Assignment of Purchase and Sale Agreement in the form attached hereto as Exhibit E. Any subsequent assignment may be made only with the prior written consent of Seller. Notwithstanding the foregoing consent requirement, with no later than five (5) business days’ prior written notice to Seller, Purchaser may assign this Agreement to any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Purchaser, and which satisfy the requirements of Section 4.3 hereof, provided further that any such assignee complies with Seller’s “know your customer” policy in accordance with Section 4.5 hereof. No assignment of Purchaser’s rights hereunder shall relieve Purchaser of its liabilities under this Agreement. This Agreement is solely for the benefit of Seller and Purchaser; there are no third party beneficiaries hereof. Any assignment of this Agreement in violation of the foregoing provisions shall be null and void. Notwithstanding anything to the contrary contained herein, Seller shall be entitled to assign its rights under this Agreement to one or more entities prior to the Closing Date without the necessity of Purchaser’s consent, and upon such assignment and a conveyance of the Property to Seller’s assignee, Seller shall be released from all obligations under this Agreement, “Seller” shall thereafter refer to and only to such assignee, and Purchaser agrees to look solely to such assignee for performance of all of Seller’s obligations under this Agreement.
Invalid Provision. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and, the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such illegal, invalid, or unenforceable provision or by its severance from this Agreement.
Attorneys’ Fees. In the event it becomes necessary for either party hereto to file suit to enforce this Agreement or any provision contained herein, the party prevailing in such suit shall be entitled to recover, in addition to all other remedies or damages, as provided herein, reasonable attorneys’ fees incurred in such suit.
Multiple Counterparts. This Agreement may be executed in a number of identical counterparts which, taken together, shall constitute collectively one (1) agreement; in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart with each party’s signature.
Expiration. The execution of this Agreement by Purchaser and the delivery hereof to Seller shall constitute an offer which shall be automatically withdrawn, revoked and terminated unless Seller accepts the same by executing this Agreement and delivering one fully executed counterpart hereof to the Title Company prior to 4:00 p.m. Dallas, Texas time, the 16th day of August, 2011.
Effective Date. As used herein the term “Effective Date” shall mean the first date the Title Company is in receipt of both this Agreement executed by Purchaser and Seller (whether in counterparts or not) and the ▇▇▇▇▇▇▇ Money.
Exhibits. The following exhibits are attached to this Agreement and are incorporated into this Agreement by this reference and made a part hereof for all purposes:
Exhibit A, the legal description of the Land.
Exhibit B, the form of the Deed.
Exhibit C, the form of the Assignment.
Exhibit D, the form of the Taxpayer I.D. Certification.
Exhibit E, the form of Assignment of Purchase and Sale Agreement.
Exhibit F, the form of Tenant Notice.
Page 19
Exhibit G, the form of the Estoppel Certificate.
Schedule 1.1, Tangible Personal Property.
Schedule 4.1(f), List of Other Due Diligence Items.
No Recordation. Seller and Purchaser hereby acknowledge that neither this Agreement nor any memorandum or affidavit thereof shall be recorded of public record in Gwinnett County, Georgia or any other county. Should Purchaser ever record or attempt to record this Agreement, or a memorandum or affidavit thereof, or any other similar document, then, notwithstanding anything herein to the contrary, said recordation or attempt at recordation shall constitute a default by Purchaser hereunder, and, in addition to the other remedies provided for herein, Seller shall have the express right to terminate this Agreement by filing a notice of said termination in the county in which the Land is located.
Merger Provision. Except as otherwise expressly provided herein, any and all rights of action of Purchaser for any breach by Seller of any representation, warranty or covenant contained in this Agreement shall merge with the Deed and other instruments executed at Closing, shall terminate at Closing and shall not survive Closing.
DTPA Waiver. PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER THAT (A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION, (B) PURCHASER IS REPRESENTED BY LEGAL COUNSEL, AND (C) PURCHASER IS SEEKING TO ACQUIRE THE PROPERTY, WHICH WILL NOT BE USED AS A FAMILY RESIDENCE, FOR A CONSIDERATION THAT EXCEEDS $500,000, OR (D) (i) PURCHASER IS A BUSINESS ENTITY THAT EITHER HAS ASSETS OF $25,000,000 OR MORE OR IS OWNED OR CONTROLLED BY A CORPORATION OR ENTITY WITH ASSETS OF $25,000,000 OR MORE, OR (ii) PURCHASER IS A SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF THIS TRANSACTION. PURCHASER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER ANY CONSUMER PROTECTION LAW, WHETHER FEDERAL, STATE OR LOCAL. PURCHASER COVENANTS NOT TO ▇▇▇ SELLER UNDER ANY SUCH CONSUMER PROTECTION LAW.
Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.
Limitation on Liability. No present or future partner, director, officer, shareholder, employee, advisor, agent, attorney, asset manager, or subasset manager of or in Seller shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or in connection with the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Purchaser and its successors and assigns and, without limitation, all other persons and entities, shall look solely to Seller’s assets for the payment of any claim or for any performance, and Purchaser hereby waives any and all such personal liability. The limitations
Page 20
on liability contained in this Section 10.19 are in addition to, and not in limitation of, any limitation on liability applicable to Seller provided in any other provision of this Agreement or by law or by any other contract, agreement or instrument.
Confidentiality. Without limiting the terms and conditions of Section 4.2 of this Agreement, Purchaser shall keep confidential and shall not disclose the terms of the transfers contemplated in this Agreement, including, without limitation, the Purchase Price and all other financial terms, without the prior written consent of Seller except: (1) to Purchaser’s directors, officers, partners, employees, legal counsel, accountants, engineers, architects, financial advisors and similar professionals and consultants to the extent such party deems it necessary or appropriate in connection with the transaction contemplated hereunder (and Purchaser shall inform each of the foregoing parties of such party’s obligations under this Section 10.20 and shall secure the agreement of such parties to be bound by the terms hereof); to Purchaser’s current and prospective lenders and investors (and Purchaser shall inform each of the foregoing parties of such party’s obligations under this Section 10.20 and shall secure the agreement of such parties to be bound by the terms hereof); (3) in any registration statement, Form 8-K or other regulatory filings made by Purchaser or any affiliate of Purchaser; or (4) as otherwise required by law or regulation.
1031 Exchange. Either party may consummate the purchase or sale (as applicable) of the Property as part of a so-called like kind exchange (an “Exchange”) pursuant to §1031 of the Code, provided that: (a) the Closing shall not be delayed or affected by reason of the Exchange nor shall the consummation or accomplishment of an Exchange be a condition precedent or condition subsequent to the exchanging party’s obligations under this Agreement, (b) the exchanging party shall effect its Exchange through an assignment of this Agreement, or its rights under this Agreement, to a qualified intermediary, (c) neither party shall be required to take an assignment of the purchase agreement for the relinquished or replacement property or be required to acquire or hold title to any real property for purposes of consummating an Exchange desired by the other party; and (d) the exchanging party shall pay any additional costs that would not otherwise have been incurred by the non-exchanging party had the exchanging party not consummated the transaction through an Exchange (such payment obligation shall survive Closing or any termination of this Agreement). Neither party shall by this Agreement or acquiescence to an Exchange desired by the other party have its rights under this Agreement affected or diminished in any manner or be responsible for compliance with or be deemed to have warranted to the exchanging party that its Exchange in fact complies with §1031 of the Code.
Page 21
Executed as of the Effective Date.
| SELLER: | LEEWARD STRATEGIC PROPERTIES, INC., a Delaware corporation | |||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||||
| Title: | Authorized Signatory |
Signature Page
Executed as of the Effective Date.
| PURCHASER: | GLOBAL GROWTH, LP, | |||||||||
| a Delaware limited partnership | ||||||||||
| By: | GLOBAL GROWTH GP, LLC, a Delaware limited liability company, its General Partner | |||||||||
| By: | GLOBAL GROWTH TRUST, INC., a Maryland corporation, its Managing Member | |||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | Chief Executive Officer |
Signature Page
TITLE COMPANY JOINDER
Title Company joins herein in order to evidence its agreement to perform the duties and obligations of Title Company set forth in this Agreement and to acknowledge receipt of (a) a fully executed copy of this Agreement and (b) the ▇▇▇▇▇▇▇ Money.
Dated: August 17, 2011.
| REPUBLIC TITLE OF TEXAS, INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Vice President |
Signature Page
The following Exhibits and Schedules omitted as not necessary to an understanding of the purchase and sale agreement.
| • | Exhibit A, the legal description of the Land. |
| • | Exhibit B, the form of the Deed. |
| • | Exhibit C, the form of the Assignment. |
| • | Exhibit D, the form of the Taxpayer I.D. Certification. |
| • | Exhibit E, the form of Assignment of Purchase and Sale Agreement. |
| • | Exhibit F, the form of Tenant Notice. |
| • | Exhibit G, the form of the Estoppel Certificate. |
| • | Schedule 1.1, Tangible Personal Property. |
| • | Schedule 4.1(f), List of Other Due Diligence Items. |