Exhibit 10.1
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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and between
CMF CAPITAL COMPANY L.L.C., a Delaware limited liability company ("Seller"), and
TRIPLE NET PROPERTIES, L.L.C., a Virginia limited liability company
("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:
I.
PURCHASE AND SALE
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1.1 Purchase and Sale. Subject to the terms and conditions of this
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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"):
(a) Land. That certain tract of land commonly known as Plaza del Rey
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Shopping Center, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ County, Texas; being more particularly
described on Exhibit A attached hereto and made a part hereof (the "Land"
but sometimes referred to herein as the "Shopping Center").
(b) Easements. All easements, if any, benefiting the Land or the
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Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances pertaining
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to the Land, including any right, title, and interest of Seller in and to
adjacent streets, alleys, or rights-of-way.
(d) Improvements. All improvements and related amenities (the
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"Improvements") in and on the land.
(e) Leases. All leases (the "Leases") of space in the Property,
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concession leases, and all tenant security deposits held by Seller on the
Closing Date (as hereinafter defined).
(f) Tangible Personal Property. All appliances, fixtures, equipment,
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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").
(g) Contracts. To the extent assignable without the consent of third
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parties, the Contracts (as hereinafter defined).
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(h) Intangible Property. To the extent assignable without the consent
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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, the name of the
Shopping Center, transferable utility contracts, transferable telephone
exchange numbers, plans and specifications, engineering plans, studies,
floor plans, and landscape plans, warranties, licenses and permits.
1.2 Independent Consideration. Upon execution of this Agreement,
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Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND
N0/100 DOLLARS ($50.00) (the "Independent 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.
2.
PURCHASE PRICE
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2.1 Purchase Price. The purchase price (the "Purchase Price") for the
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Property shall be FIVE, MILLION FIFTY THOUSAND AND N0/100 DOLLARS
($5,050,000.00) and shall be paid in cash by Purchaser to Seller at the Closing
(as defined herein) as follows:
(a) A portion of the Purchase Price shall be satisfied by Purchaser's
execution and delivery to Fair Oak, LLC, a Delaware limited liability
company ("Lender") of a promissory note (the "Note") in the form attached
hereto as Exhibit G in the original principal sum of THREE MILLION NINE
HUNDRED NINETY-FIVE THOUSAND AND NO/DOLLARS ($3,995,000.00) payable to the
order of Lender. The payment and performance by Purchaser under the Note
shall be secured by (i) a First Deed of Trust and Security Agreement (the
"Mortgage") in the form attached hereto as Exhibit H, executed by Purchaser
for the benefit of Lender, covering the Property; (ii) an Assignment of
Rents and Leases (the "Rental Assignment") in the form attached hereto as
Exhibit I; (iii) UCC-1 Financing Statements (the "Financing Statements") in
the form attached hereto as Exhibit (iv) a Hazardous Substances Indemnity
Agreement (the "Indemnity Agreement") in the form attached hereto as
Exhibit (v) a Notice and Agreement (the "Notice and Agreement") in the form
attached hereto as Exhibit L; (vi) an Unconditional Guaranty of Payment and
Performance (the "Guaranty") in the form attached hereto as Exhibit M and
(vii) the form of Legal Opinion of Counsel (the "Legal Opinion") attached
hereto as Exhibit R. The Note, the Mortgage, the Rental Assignment, the
Financing Statements, the Indemnity Agreement, the Notice and Agreement,
the Guaranty and the Legal Opinion are hereinafter collectively referred to
as the "Purchase Money Loan Documents"; and
(b) The balance of the Purchase Price, in the amount of ONE MILLION
FIFTY-FIVE THOUSAND AND NO/1 00 DOLLARS ($1,055,000.00), shall be paid in
cash at the Closing by wire transfer of immediately available federal funds
in accordance with wire transfer instructions to be provided by Seller.
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3.
▇▇▇▇▇▇▇ MONEY
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3.1 ▇▇▇▇▇▇▇ Money. Purchaser shall deliver to Chicago Title Insurance
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Company ("Escrow Agent") pursuant to an escrow agreement identical in form to
that which is attached hereto as Exhibit P and incorporated herein for all
purposes) at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ within two (2) business days after the date a fully-
executed copy of this Agreement is delivered to the Escrow Agent by Seller, by
wire transfer in accordance with wire transfer instructions provided by the
Escrow Agent, the amount of ONE HUNDRED THOUSAND AND NO/100 100 DOLLARS
($100,000.00) (which amount, together with all interest accrued thereon, if any,
is herein called the "▇▇▇▇▇▇▇ Money") to be invested by the Escrow Agent in an
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 Escrow Agent as prescribed in this Section 3.1. Purchaser
agrees to promptly deliver or cause the Escrow Agent to deliver written
acknowledgment by the Escrow Agent that the executed copy of this Agreement and
the ▇▇▇▇▇▇▇ Money have been received by and are being held by the Escrow Agent
pursuant to the terms of this Agreement. Except as provided herein, the ▇▇▇▇▇▇▇
Money shall be nonrefundable upon the Effective Date (as defined in Section
10.13). 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 (as hereinafter defined). 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 immediately 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
hereof) at the time the notice to terminate this Agreement is given and upon
payment by Seller to Purchaser for the actual cost of the Reports. The
obligations to deliver the Reports shall survive the termination of this
Agreement. In no event shall any ▇▇▇▇▇▇▇ Money be returned to Purchaser
hereunder until all Reports have been delivered to Seller.
4.
CONDITIONS TO CLOSING
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4.1 Seller's Obligations. Seller shall deliver to Purchaser (at Seller's
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expense), within ten (10) days after the Effective Date hereof, the following:
(a) Title Commitment. Commitment for Owner's Policy of Title Insurance
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(the "Title Commitment") with respect to the Property, issued by the Title
Company (as defined in Section 6.1 ), and legible copies of any restrictive
covenants, easements, and other items listed as title exceptions therein.
(b) Survey. A current as-built survey of the Property (the "Survey")
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showing the location of all of the Improvements, prepared by a licensed
surveyor.
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(c) Contracts. Copies of all contracts pertaining to the
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Property, and not cancelable on thirty (30) days' notice without penalty or
premium (the "Contracts"), including, but not limited to, management
contracts, service contracts, equipment leases and maintenance contracts,
to the extent in the possession of or in control of GE Capital Realty
Group, Inc. ("GECRG").
(d) Rent Roll. The Leases and a rent roll for the months of July
and August of the year 2000 describing all Leases of space in the
Improvements.
Seller's failure to deliver to Purchaser items (a) through (d) above within ten
(10) days after the Effective Date shall not result in the extension of the
Closing Date (as such term is defined in Section 6.1).
4.1.1 Intentionally Deleted.
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4.1.2 Title Commitment and Survey.
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(a) 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 Texas form of Commitment for
Title Insurance or the exceptions listed on Exhibit Q attached hereto
and made a part hereof), that are unacceptable to Purchaser, Purchaser
shall within five (5) business days after receipt of the Survey, the
Title Commitment and copies of all documents referred to as exceptions
in the Title Commitment, notify Seller in writing of such facts and
the reasons therefore ("Purchaser's Objections"). Upon the expiration
of said five (5) business day 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 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 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 neither
party shall have any obligations hereunder other than the Surviving
Obligations.
(b) 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,
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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. The term "Permitted
Encumbrances" shall not include the standard printed exceptions set
forth in the standard Texas form of Commitment for Title Insurance and
the exceptions listed on Exhibit Q.
4.1.3 Limitations of Seller's Obligations. Notwithstanding anything
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contained herein to the contrary, 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 4.1.2 or Section 4.2.
4.2 Inspection. Purchaser may inspect, test, and survey the Property at
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any reasonable time during business hours at any time during the term of this
Agreement. 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 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 such testing, investigation, or inspection. Purchaser's
right of inspection set forth herein shall not give Purchaser the right to
terminate this Agreement; provided, however, solely in the event Purchaser's
Phase I environmental inspection conducted on the Property reveals an
environmental condition having a material, adverse impact thereon and Purchaser
delivers to Seller the results of such inspection within five (5) days of
Purchaser's receipt of same, Purchaser shall have the right to terminate this
Agreement upon written notice delivered to Seller no later than ten (10) days
following Purchaser's receipt of such Phase I environmental assessment. All
information provided by Seller to Purchaser or obtained by Purchaser relating to
the Property in the course of Purchaser's review, 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. Purchaser shall restore the Property
to its condition existing immediately prior to Purchaser's inspection thereof,
and Purchaser shall be liable for all damage or injury to any person or property
resulting from, relating to or arising out of any such inspection, whether
occasioned by the acts of Purchaser or any of its employees, agents,
representatives or contractors, and Purchaser shall indemnify and hold harmless
Seller and its agents, employees, officers, directors, affiliates, and asset
managers from any liability resulting therefrom. This indemnification by
Purchaser shall survive the Closing or the termination of this Agreement, as
applicable.
4.3 Purchaser's Representations and Warranties. Purchaser represents and
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warrants to Seller that (a) Purchaser is a limited partnership, duly organized
and in good standing under the
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laws of the State of Virginia, is qualified to do business in the State of
Texas, 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 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 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.
The Purchaser's representations and warranties set forth in this Section 4.3
shall survive the Closing or termination of this Agreement. 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.
4.4 Seller's Representations and Warranties. Seller represents and
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warrants to Purchaser that (a) Seller has the full company 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, (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
Seller is a party or by which Seller or any of Seller's assets is bound, (c) to
Seller's knowledge (as hereinafter defined), Seller has not been served with
process in any litigation affecting the Property which would adversely affect
Seller's ability to perform its obligations under this Agreement, (d) to
Seller's knowledge (as hereinafter defined), Seller has not received any written
notices of zoning change or special assessments with respect to the Property,
(e) to Seller's knowledge (as hereinafter defined), Exhibit N contains a
complete list of all Contracts entered into by Seller or its authorized agents
affecting the Property including all
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amendments and modifications thereto, and (f) to Seller's knowledge, Exhibit 0
contains a complete list of all Leases affecting the Property and all amendments
and modifications thereto.
4.5 Knowledge. As used herein, the term "to Seller's knowledge" shall
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mean only the "current actual knowledge without inquiry" (as defined below) of
the following designee of GECRG: ▇▇▇▇ ▇▇▇▇▇▇▇▇. As used herein, the term
"current actual knowledge without inquiry" shall mean only the actual, current,
conscious and not constructive, imputed or implied knowledge of such designee
without having made a review of the files or other inquiry. Anything herein to
the contrary notwithstanding, such designee shall not have any personal
liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of the Seller's representation herein being or becoming
untrue, inaccurate or incomplete in any respect.
4.6 Survival: Liability. Any and all of the representations and
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warranties of Seller as contained in this Agreement shall be void and of no
further force or effect whatsoever from and after one (1) year from the Closing
Date. Consequently, Purchaser stipulates and agrees that from and after such one
(1) year period, it is entitled to and agrees to claim no damages of any kind
with respect to any alleged breach and/or violation of any of such
representations and/or warranties of Seller. Furthermore, if Purchaser becomes
aware prior to Closing of any breach and/or violation of any of Seller's
representations or warranties as set forth herein, Purchaser shall give seller
written notice of any such breach or violation, and during the fifteen (15) day
period after such notice, Seller shall have the right, but not the obligation,
to cure any such breach or violation to the reasonable satisfaction of
Purchaser, and the Closing Date shall be extended for such fifteen (15) day
period. In the event Purchaser becomes aware of any breach and/or violation of
any Seller's representations and warranties prior to Closing and (a) Purchaser
fails to give Seller notice thereof as required hereby or (b) following notice
thereof, Seller fails or is unable to cure any such breach or violation to the
reasonable satisfaction of Purchaser, Purchaser's sole remedy for any such
breach or violation shall be to terminate this Agreement by delivering written
notice of such termination to Seller on or before the Closing Date and neither
party shall have any obligation hereunder, except the Surviving Obligations.
Anything herein to the contrary notwithstanding, if Purchaser timely commences
any action(s) to enforce any alleged breach and/or violation of any of the
representations and/or warranties of Seller as set forth in this Agreement, then
Purchaser's sole remedy shall be to seek recovery of its actual damages (but not
special, speculative, punitive or other damages) and the amount of such damages,
in the aggregate (with respect to any and all such breaches and/or violations)
shall not exceed One Hundred Thousand and No/100 Dollars ($100,000.00), which
sum shall include all of Purchaser's attorney's fees, costs, expert witness
fees, and court costs.
4.7 Tenant Estoppel Certificates. Seller agrees to submit or cause its
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property manager to submit to each tenant or lessee under a Lease a request for
such tenant or lessee to execute and deliver a tenant estoppel certificate to
Purchaser with respect to its Lease in the form attached hereto as Exhibit D.
Seller shall have no obligation or responsibility with respect to any tenant
estoppel certificate other than to submit or cause to be submitted such
certificate to the tenant or lessee and request the execution and return
thereof.
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4.8 Defective Condition Extension; Termination. The obligations of Seller
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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,
either (i) the presence of any Hazardous Materials (as defined in Section
5.2 hereof) or the violation or potential violation of any Environmental
Requirements (as defined in Section 5.3 hereof) or (ii) any structural or
other defect in the Improvements, whether or not in violation of any
applicable law, ordinance, code, regulation or decree of any governmental
authority having jurisdiction over the Property (collectively, a "Defective
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
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.
4.9 Contingent Sale. The obligations of Seller hereunder are subject to
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and contingent upon the fully consummated purchase and sale of each of the other
two (2) shopping centers identified in that certain Purchase and Sale Agreement
by and between Seller and T REIT, L.P. a Virginia limited partnership for the
purchase of Northstar Crossing Shopping Center (the "NSC" Agreement") and that
certain Purchase and Sale Agreement by and between Seller and T REIT, L.P. a
Virginia limited partnership, for the purchase of Thousand Oaks Shopping Center
(the "THO Agreement"), respectively. If Seller fully consummates this
Agreement, the foregoing contingency as contemplated herein will be deemed
waived by Seller.
4.10 Termination/Cross Default. A termination by Purchaser for any reason
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of this Agreement or the occurrence of an event which would constitute a
default/breach by Purchaser under this Agreement shall at the option of Seller
constitute a termination or default/breach of the NSC Agreement and the THO
Agreement. A termination by Purchaser for any reason of the NSC Agreement or the
THO Agreement or the occurrence of an event which would constitute a
default/breach by Purchaser under the NSC Agreement or the THO Agreement shall
at the option of Seller constitute a termination or default/breach of this
Agreement.
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
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ACCEPTANCE OF PROPERTY
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5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
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MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE SPECIAL WARRANTY
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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 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 (1) 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, 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
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THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE RAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. EXCEPT IN THE EVENT OF SELLER'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT,
DEFEND, SAVE AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS,
DUTIES, OBLIGATIONS, LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION,
DAMAGES, -LOSSES, FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS'
FEES AND EXPENSES AND COURT COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH
OR ARISING OUT OF PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION,
MAINTENANCE AND MANAGEMENT OF THE PROPERTY. THE PROVISIONS OF THIS SECTION 5
SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
-------------------
which is or contains (i) any "hazardous substance" as now or hereafter defined
in (S) 10 1(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amend (42 U.S.C. (S)9601 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 U.S.C.
(S)6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. (S)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 hereinafter defined)
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 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.
5.3 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).
21
6.
CLOSING
-------
6.1 Closing. The Closing (the "Closing") shall be held at the offices of
-------
Commonwealth Land Title Company (the "Title Company") at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, at a date
designated by Seller and Purchaser on or before thirty (30) calendar days after
the Effective Date (the "Closing Date"), but in no event shall the Closing Date
be later than November 15, 2000, unless the parties mutually agree in writing
upon another place, time or date.
6.2 Possession. Possession (including keys) of the Property shall be
----------
delivered to Purchaser at the Closing, subject to the Permitted Encumbrances.
6.3 Proration. Except for all leasing commissions and tenant improvement
---------
costs associated with existing tenants for existing terms under the existing
lease documents which shall be paid by Seller, 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 Closing Date.
(a) 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
collected and received by Seller. Subsequent to the Closing, if any such
rents and other income are actually collected and 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. Purchaser shall make a good faith effort and attempt
for a period not to extend beyond four (4) months after the Closing Date 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 paragraph shall restrict Seller's right to
collect delinquent rents directly from a tenant by any legal means.
(b) Taxes will be prorated on an accrual basis. 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. If the Property is not assessed as a separate parcel for
tax or assessment purposes, then such taxes and assessments attributable to
the Property shall be determined by Purchaser and Seller. In the event the
Property has been assessed for property tax purposes at such rates as could
22
result in "roll-back" taxes upon changes in land usage or ownership of the
Property, Seller agrees to pay all such taxes.
(c) 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.
(d) Purchaser and Seller acknowledge and agree that certain additional
rents constituting reimbursement for percentage rent payments, common area
maintenance charges, property taxes and assessments and the like
(collectively, "Additional-Rents") which Seller has heretofore advanced
have not yet been billed to the Tenants by Seller (collectively, "Unbilled-
Additional-Rents"). Purchaser and Seller agree that, with respect to the
Unbilled Additional Rents, Seller shall provide Purchaser following the
Closing with the data reasonably necessary for Purchaser to provide bills
to the Tenants for the Unbilled Additional Rents. In the event that any
Tenant shall, following the Closing, seek to audit or to challenge Seller's
calculation of rent or Additional Rent actually paid by such Tenant during
the period of Seller's ownership of the Property, upon the agreement of the
Tenant and Seller, or if no such agreement is reached, upon the entering of
a final, non-appealable order (or, if applicable pursuant to the applicable
lease, an arbitration or other dispute resolution award), Seller shall
reimburse such Tenant to the extent of any over-payment of rent or
Additional Rent actually received by Seller, together with any applicable
interest or other costs pursuant to a settlement, court order or other
award, and Purchaser shall use commercially reasonable efforts to collect
the amount of any underpayment of rent or Additional Rent from such Tenant,
together with any applicable interest or other costs pursuant to a
settlement, court order or other award for the benefit of Seller.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein, Seller
-------------
shall pay, on the Closing Date, the title insurance premium for the Owner's
Policy (as defined in Section 6.5(a) and the cost of the Survey. Purchaser shall
pay, on the Closing Date, all recording costs, all escrow fees and other
customary charges of the Title Company and Escrow Agent and the title insurance
premium for the Mortgagee Policy (as defined in Section 6.6 (f)). Except as
otherwise provided herein, each party shall pay its own attorneys' fees.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
-----------------------------------
deliver to Purchaser following:
23
(a) Title Policy. Owner's Policy of Title Insurance in Texas standard
------------
form (the "Owner's Policy"), naming Purchaser as insured, in the amount of
the Purchase Price, insuring that Purchaser owns good and indefeasible fee
simple title to the Property, subject only to the Permitted Encumbrances.
Purchaser, at Purchaser's sole expense, shall elect to cause the Title
Company to amend the survey exception to read "any shortages in area" and
issue a Mortgagee Policy of Insurance in favor of Lender in the amount of
the Note subject to no exceptions other than the Permitted Encumbrances.
(b) 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.
(c) 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.
(d) Leases. The originals of all of the Leases, in the possession of
------
or control of GECRG on the Closing Date; Provided, however all security
----------
deposits, if any shall be credited to Purchaser. Seller shall have no
liability to Purchaser for any tenant security deposit not actually paid to
Seller.
(e) Contracts. The originals of all of the Contracts, guaranties and
permits, if any, in the possession of or control of GECRG.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
--------------------------------------
shall deliver to Seller or Lender, as appropriate, the following:
(a) Purchase Price. The Purchase Price, as provided in Section 2.1 by
--------------
wire transfer of immediately available funds.
(b) Purchase Money Loan Documents. The Note, the Mortgage, the Rental
-------------------------------
Assignment, the Financing Statements, the Indemnity Agreement, the Notice
and Agreement, and the Guaranty, each executed and acknowledged, as
applicable by Purchaser.
(c) Post Effective Date Lease Expenses. Immediately available funds
----------------------------------
in an amount equal to costs and expenses incurred and paid by Seller under
any new 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 attorneys' fees.
(d) Evidence of Authority. Such organizational and authorizing
---------------------
documents of Purchaser as shall be reasonably required by Seller and/or the
Title Company authorizing
24
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.
(e) Taxpayer I.D. Certification, in the form attached to this
Agreement as Exhibit E.
(f) Mortgagee Policy of Title Insurance in Texas standard form (the
"Mortgagee Policy") naming Lender as the insured in the amount of the Note
subject to no exceptions other than the Permitted Encumbrances.
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
---------------------------------------
Seller and Purchaser shall also execute and deliver the following:
(a) Deed. Special Warranty Deed with Vendor's Lien (the "Deed")
----
conveying the Land and the Improvements to Purchaser subject to no
exceptions other than the Permitted Encumbrances, in the form attached to
this Agreement as Exhibit B.
(b) Tenant Notices. Signed statements or notices to all tenants of
--------------
the Property notifying such tenants that the Property has been transferred
to Purchaser and that Purchaser is responsible for security deposits
(specifying the amounts of such deposits), and, if applicable, otherwise
complying with Section 92.105 of the Texas Property Code.
(c) Assignment and Assumption of Personal Property, Service Contracts,
------------------------------------------------------------------
Warranties and Leases. Assignment in the form attached to this Agreement
---------------------
as Exhibit C.
7.
RISK OF LOSS
------------
7.1 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 Agreement, 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.
7.2 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 Shopping Center, or any
part thereof, suffers any damage in excess of $100,000.00 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, 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 Shopping Center and any portion of such proceeds paid or
to be paid on account of the loss of rents or other income from the Shopping
Center for the period prior to and
25
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 Shopping Center, or any part
thereof, suffers any damage less than $ i 00,000.00 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 and there shall be no reduction
in the Purchase Price.
8.
DEFAULT
-------
8.1 Breach by Seller. Except as Purchaser's remedies may otherwise be
----------------
expressly limited by the terms of this Agreement (including, without limitation,
the terms of Section 4.4 :
(a) 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 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, (C)
Purchaser has tendered five percent (5%) of the Purchase Price to the
Escrow Agent, in immediately available funds and the Escrow Agent 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 "WHERE IS, AS 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 give Seller ten (10) days thereafter
in which to cure said default, if Seller so elects. 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 he liable to
Purchaser for any punitive, speculative or consequential damages.
8.2 Breach by Purchaser. (a) If Purchaser fails to comply with Section 6
-------------------
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 for the Surviving
Obligations). Seller and Purchaser have made this provision for liquidated
damages because it would be difficult to calculate, on the date hereof, the
amount
26
of actual damages for such breach, and Seller and Purchaser agree that these
sums represent reasonable compensation to Seller for such breach, (b)
Notwithstanding the provisions of Section 8.2(a) above, (1) in the event of any
default by Purchaser under this Agreement other than as described in Section
8.2(a) (including, without limitation, any breach by the Purchaser of the
negative covenant, set forth in Section 9. 1 above, not to file any
instrument(s) against title to the Property excepting the lis pendens described
in Section 8.1 above), Seller shall have any and all rights and remedies
available at law or in equity by reason of such default and (ii) the provisions
of this Section 8.2 shall not limit or affect any of Purchaser's indemnities as
provided in other Sections of this Agreement.
9.
FUTURE OPERATIONS
-----------------
9.1 Future Operations.
-----------------
(a) From the date of this Agreement until the Closing or earlier
termination Agreement:
(i) Seller will keep and maintain the Property in substantially
its condition as of the date of this Agreement;
(ii) Seller will perform all Seller's obligations under the
Contracts and Leases. Seller will not, without the prior written
consent of Purchaser, modify, enter into, or renew any Contract or
Lease which cannot be canceled upon thirty (30) days' prior written
notice.
(iii) Seller will continue to manage the Property in a prudent
mariner consistent with Seller's past practices.
(b) Except with respect to the proposed lease with CDG, which
Purchaser approved, from 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 and lease extensions
pursuant to rights granted under an existing lease. In addition, Seller shall
not apply security deposits unless the corresponding tenant is out a f the
demised premises by the Closing Date. All costs and expenses (the "New Lease
Expenses") incurred and paid by Seller under any new lease entered into after
the Effective Date (each a "New Lease") shall be paid by Purchaser in accordance
with Section 6.6(c) hereof. 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 attorneys' fees.
Notwithstanding anything to the contrary contained herein, Seller will credit
Purchaser at Closing (i) up to the amount of $275,000.00 for the New Lease
Expenses assumed by Purchaser with respect to the proposed CDG lease and (ii) up
to the amount of $24,516.00 00 for lease renewal commissions, unless otherwise
paid prior to
27
Closing, with respect to leases for: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ATM, Seguin Nails
Coleville, D.D.S., Subway, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Valerie's Hair, Hill's
Jewelers, Popeye's Chicken, an ▇▇▇▇▇ ▇▇▇▇▇▇ Cosmetics, and the New Lease
Expenses for each New Lease allocable to and payable by Seller shall be
determined by multiplying the amount of such New Lease Expenses by a
fraction, the numerator of which shall be the number of days contained in
that portion, if any, of the term of such New Lease commencing on the date
on which the tenant thereunder shall have commenced to pay fixed rent (the
"Rent Commencement Date') and expiring on the date immediately preceding
the Closing Date, and the denominator of which shall be the total number of
days contained in the period commencing on the Rent Commencement Date and
expiring an the date of the scheduled expiration of the term of such New
Lease, and the remaining balance of the New Lease Expenses for each New
Lease shall be allocable to and payable by Purchaser. The Rent Commencement
Date under a renewal, extension, expansion or modification of a Lease shall
be deemed to be (A) in the case of a renewal or extension (whether
effective prior to or after the Closing, or in the form of an option
exercisable in the future), the first date during such renewal or extension
period after the originally scheduled expiration of the term of such Lease
on which the tenant under such Lease commences to pay fixed rent, (B) in
the case of an expansion (whether effective prior to or after the Closing,
or in the form of an option exercisable in the future), the date on which
the tenant under such Lease commences to pay fixed rent for the additional
space, and (C) In the case of a modification not also involving a renewal,
extension or expansion of such Lease, the effective date of such
modification agreement. At the Closing, Purchaser shall reimburse Seller
for all New Lease Expenses theretofore paid by Seller, if any, in excess of
the portion of die New Lease Expenses allocated to Seller pursuant to the
provisions of the preceding sentence.
10.
MISCELLANEOUS
-------------
10.1 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 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; or (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. 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: CMF Capital Company L.L C.
c/o GE Capital Realty Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
28
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Legal Department
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: Triple Net Properties, L.L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Hirschler, Fleischer, ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 15/th/ Floor (23219)
▇.▇. ▇▇▇ ▇▇▇ (▇▇▇▇▇-▇▇▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Title Company: Commonwealth land Title Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Chicago Title Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 9208
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.2 Real Estate Commissions. Seller shall pay to The ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------
Company (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 payable unless and until the transaction
contemplated hereby is closed in accordance with the terms of this Agreement; if
such transaction is not closed 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. Seller shall also pay to
Triple Net Realty $350,000 in real estate commissions. Except as set forth
above with respect to Agent and Triple Net Realty, neither Seller nor Purchaser
has authorized any broker or finder to act on Purchaser's behalf in
29
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.
Purchaser acknowledges that, in accordance with the terms of the Real Estate
License Act of the State of Texas, Agent has advised Purchaser that Purchaser
should have the abstract covering the Property examined by an attorney of
Purchaser's selection, or that Purchaser should be furnished with or obtain a
policy of title insurance. Notwithstanding anything to the contrary contained
herein, this Section 10.2 shall survive the Closing or any earlier termination
of this Agreement.
10.3 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.
10.4 Amendment. This Agreement may be amended only by a written instrument
---------
executed by the party or parties to be bound thereby.
10.5 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.
10.6 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 Texas, 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.
10.7 Governing Law. This Agreement shall be governed by the laws of the
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State of Texas and the laws of the United States pertaining to transactions in
such State.
10.8 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 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 F. Any subsequent assignment
may be made only with the prior written consent of Seller. No assignment of
Purchaser's rights hereunder shall relieve Purchaser of its
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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. Seller may, in its sole and absolute discretion, transfer the
Property and Seller's rights and obligations under this Agreement without
obtaining Purchaser's consent.
10.9 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.
10.10 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.
10.11 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.
10.12 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
Escrow Agent prior to 4:00 p.m. Central Standard Time the day of ___ day of
__________ 2000.
10.13 Effective Date. As used herein the term "Effective Date" shall mean
--------------
the first date the Escrow Agent is in receipt of both this Agreement executed by
Purchaser and Seller (whether in counterparts or not) and the ▇▇▇▇▇▇▇ Money.
10.14 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:
(a) Exhibit A the legal description of the Land.
(b) Exhibit B the form of the Deed.
(c) Exhibit C the form of the Assignment and Assumption of Personal
Property, Service Contracts, Warranties and Leases.
(d) Exhibit D the form of the Estoppel Certificate.
(e) Exhibit E the form of the Taxpayer I.D. Certification.
(f) Exhibit F the form of Assignment of Purchase and Sale Agreement.
(g) Exhibit G, the form of Promissory Note.
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(h) Exhibit H the form of First Deed of Trust, Security Agreement
and Fixture Filing.
(i) Exhibit I the form of Assignment of Rents and Leases.
0) Exhibit J the form of UCC- I Financing Statements.
(k) Exhibit K the form of Hazardous Substances Indemnity
Agreement.
(1) Exhibit L the form of Notice and Agreement.
(m) Exhibit M the form of Guaranty
(n) Exhibit N the list of Contracts
(0) Exhibit 0 the list of Leases
(p) Exhibit P the form of Escrow Agreement
(q) Exhibit Q the exceptions
(r) Exhibit R, the form of Legal Opinion
10.15 No Recordation. Seller and Purchaser hereby acknowledge that
--------------
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in ▇▇▇▇▇▇▇▇▇ County, Dallas County, 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.
10.16 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.
10.17 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 RAS ASSETS OF $5,000,000 OR MORE OR IS OWNED OR CONTROLLED BY A
CORPORATION OR ENTITY WITH ASSETS OF $5,000,000 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 THE TEXAS DECEPTIVE TRADE PRACTICES-
CONSUMER PROTECTION ACT (SECTIONS 17.41 AND FOLLOWING OF THE TEXAS BUSINESS AND
COMMERCE CODE) (THE "DTPA") AND ANY OTHER SIMILAR CONSUMER PROTECTION LAW,
WHETHER FEDERAL, STATE OR LOCAL. PURCHASER COVENANTS NOT TO ▇▇▇ SELLER UNDER THE
DTPA OR ANY SUCH SIMILAR CONSUMER PROTECTION LAW.
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10.18 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.
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PURCHASER:
Date of Execution TRIPLE NET PROPERTIES, L.L.C.
by Purchaser: a Virginia limited liability company
October 26, 2000 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------- -----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
Title: President
---------
SELLER:
Date of Execution CMF CAPITAL COMPANY, LLC
by Seller: a Delaware limited liability company
By: GE CAPITAL REALTY GROUP, INC.
_________________________ a Texas corporation, its attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------
Title: Vice President
--------------
The undersigned Escrow Agent hereby acknowledges receipt of the ▇▇▇▇▇▇▇ Money
and a copy of this Agreement, and agrees to hold and dispose of the ▇▇▇▇▇▇▇
Money in accordance with the provisions of this Agreement.
Date of Execution CHICAGO TITLE INSURANCE COMPANY
by Escrow Agent:
____________________ By: ___________________________
_____________________
Authorized Officer
EXHIBITS ARE NOT ATTACHED
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