EXHIBIT 10(aaz)
AGREEMENT OF SALE
by and between
OMNI CONGRESS JOINT VENTURE
AS BUYER
and
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA
AS SELLER
September 5, 1995
TABLE OF CONTENTS
1. Purchase and Sale . . . . . . . . . . . . . . . . . . . . 5
2. Consideration . . . . . . . . . . . . . . . . . . . . . . 6
3. Documents and Deliveries at Closing; By Seller . . . . . . 6
4. Documents and deliveries at Closing; By Buyer . . . . . . 8
5. New Leases . . . . . . . . . . . . . . . . . . . . . . . 9
6a. Seller's Documents and Title Commitment to be Made
Available . . . . . . . . . . . . . . . . . . . . . . . 9
6b. Delivery of Survey and
Estoppel Certificates . . . . . . . . . . . . . . . . 10
7. Closing Expenses . . . . . . . . . . . . . . . . . . . . 10
8. Conditions to Obligations of Buyer . . . . . . . . . . . 11
9. Conditions to Obligations of Seller . . . . . . . . . . 12
10. Casualty to Property . . . . . . . . . . . . . . . . . . 12
11. Condemnation . . . . . . . . . . . . . . . . . . . . . . 14
12. Real Estate Broker . . . . . . . . . . . . . . . . . . . 14
13. Closing . . . . . . . . . . . . . . . . . . . . . . . . 15
14. Apportionments and Additional Payments . . . . . . . . . 15
15. Past Due Rents and Past Due Accounts . . . . . . . . . . 17
16. Inspection of the Property . . . . . . . . . . . . . . . 18
17a. Covenants of Seller . . . . . . . . . . . . . . . . . . 20
17b. Covenants of Buyer . . . . . . . . . . . . . . . . . . . 23
18a. Seller's Representations and Warranties . . . . . . . . 23
(a) Existing Leases . . . . . . . . . . . . . . . . . . 23
(b) Certificate of Occupancy, Law and Ordinances,
Condemnation and Zoning . . . . . . . . . . . . . 24
(c) Operating Statements . . . . . . . . . . . . . . . 24
(d) Restrictions and Easements . . . . . . . . . . . . 25
(e) Service Contracts . . . . . . . . . . . . . . . . . 25
(f) Construction Contracts . . . . . . . . . . . . . . 25
(g) Licenses and Permits . . . . . . . . . . . . . . . 25
(h) Warranties and Guaranties . . . . . . . . . . . . . 26
(i) Trade Materials . . . . . . . . . . . . . . . . . . 26
(j) Legal Proceedings and Bankruptcy . . . . . . . . . 26
(k) FIRPTA . . . . . . . . . . . . . . . . . . . . . . 26
(l) Authority, Actions of Seller, Authorization
and Consents . . . . . . . . . . . . . . . . . . . 26
18b. Buyer's Representations and Warranties . . . . . . . . . 27
19. Safe Deposit Boxes . . . . . . . . . . . . . . . . . . . 28
20. Baggage Inventory . . . . . . . . . . . . . . . . . . . 29
21. Indemnity and Survival . . . . . . . . . . . . . . . . . 30
22. Deposit . . . . . . . . . . . . . . . . . . . . . . . . 30
23. Termination, Default and Remedies . . . . . . . . . . . 30
24. Assignment . . . . . . . . . . . . . . . . . . . . . . . 32
25. Supplemental Documents . . . . . . . . . . . . . . . . . 32
26. Definitions . . . . . . . . . . . . . . . . . . . . . . 32
27. Notices . . . . . . . . . . . . . . . . . . . . . . . . 35
28. Section Headings . . . . . . . . . . . . . . . . . . . . 36
29. Entire Contract . . . . . . . . . . . . . . . . . . . . 36
30. Invalid Provisions . . . . . . . . . . . . . . . . . . . 36
31. Construction . . . . . . . . . . . . . . . . . . . . . . 36
32. Covenant Not to Record . . . . . . . . . . . . . . . . . 37
33. Choice of Law . . . . . . . . . . . . . . . . . . . . . 37
34. Binding Effect . . . . . . . . . . . . . . . . . . . . . 37
35. Counterparts and Copies . . . . . . . . . . . . . . . . 37
36. Effective Date . . . . . . . . . . . . . . . . . . . . . 37
Exhibits and Schedules
Exhibit "A" - Metes and Bounds Description of Land
Exhibit "B" - Tangible Personal Property
Exhibit "C-1" - Office Leases
Exhibit "C-2" - Residential Leases
Exhibit "C-3" - EntelCom Leases
Exhibit "D" - Permitted Exceptions
Exhibit "E" - Form of Special Warranty Deed
Exhibit "F" - Form of Assignment and Assumption of Leases
Exhibit "G" - Form of ▇▇▇▇ of Sale
Exhibit "H" - Form of Assignment and Assumption of
Contracts and Saint David's Lease
Exhibit "I" - Form of Assignment and Assumption of Licenses
and Permits
Exhibit "J" - Form of Assignment and Assumption of
Warranties and Guaranties
Exhibit "K-1" - Form of Notice Letter to Office and
Residential Tenants
Exhibit "K-2" - Form of Notice Letter to Managers
Exhibit "K-3" - Form of Notice Letter to Saint David's Lease
Landlord
Exhibit "L" - Form of Certificate of Corporate Officers and
Resolution of Seller
Exhibit "M" - Form of Estoppel Certificate
Exhibit "N" - Description of EntelCom System
Exhibit "O" - Registration Agreement, Confidentiality
Agreement - Principal and Confidentiality
Agreement - Agent dated June 1, 1995
Schedule "1" - Rent Roll
Schedule "2" - Matters pertaining to Existing Leases
Schedule "3" - Certificate of Occupancy
Schedule "4" - Schedule of Service Contracts
Schedule "5" - Schedule of Construction Contracts
Schedule "6" - Schedule of Licenses and Permits
Schedule "7" - Schedule of Warranties and Guaranties
Schedule "8" - Schedule of Trade Materials
Schedule "9" - Schedule of Legal Proceedings
Schedule "10" - Schedule of Advertising Contracts and
Contracts for Billboard Space
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made as of the
Effective Date (as defined in Section 36 hereof) between
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington
corporation ("Seller"), and OMNI CONGRESS JOINT VENTURE, a Texas
joint venture ("Buyer").
RECITALS:
1. Seller owns a certain parcel of real estate situated in
the City of ▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas, as more particularly
described on Exhibit "A" attached hereto (the "Land").
2. The Land is improved with a multi-use complex (the
"Improvements") known as "Austin Centre", comprised of: (a) a
central atrium, an office tower and ground level retail space
with approximately 343,664 square feet of rentable space, an
underground parking garage with approximately 654 parking spaces
and common areas located in the atrium (the atrium, office tower
and retail space, underground parking garage and the common areas
being herein called the "Office Center"); (b) a hotel tower with
approximately 314 rooms commonly known as the "Omni Austin Hotel"
(the "Hotel"); (c) approximately 59,875 square feet of
residential rentable space located in the air space directly
above the Hotel, which is subject to residential leases (the
"Residential Space"); and (d) all other buildings, structures,
machinery and improvements located on the Land, including, but
not limited to, any and all, if any, mechanical, electrical,
heating, air-conditioning, plumbing, sprinkler, lighting,
ventilating and cooling system, together with their respective
appurtenant gas and electric ranges, refrigerators, engines,
motors, generators, pipes, wiring and other apparatus, and all
lighting fixtures, doors, cabinets, partitions, elevators,
electric motors and pumps appurtenant to, and used in connection
with the above described Office Center, Hotel and/or Residential
Space.
3. Seller has agreed to sell and assign, or cause to be
sold and assigned, to Buyer, and Buyer has agreed to purchase and
take from Seller, the Land and the Improvements together with:
(a) any and all of Seller's right, title and interest in
and to all furniture, furnishings, working supplies and articles
of personal property constructed, erected, affixed to, attached
to, installed or placed in or upon and used in connection with
the occupancy and operation of the Property (as hereinafter
defined), including, but not limited to, any and all, if any,
office furniture and equipment, partitions, vaults, safes,
electrical, fire prevention and extinguishing equipment, radio,
television and public address and amplifying systems, equipment,
parts and supplies, chairs, tables, beds, bedsprings, mattresses,
couches, lamps, waste baskets, desks, silverware, utensils, table
and bed linen, towels, blankets, dishes, glassware, mirrors,
carpets, rugs and other floor coverings, curtains, draperies,
pictures, radio and television sets, stationery and office
supplies, pianos, and all musical instruments, bars and bar
equipment, kitchen utensils, and other furniture and furnishings
for all lobbies, ballrooms, dining rooms, bedrooms, guest rooms,
baths and other private and public rooms, and the furniture,
typewriters, furnishings, equipment, tools, materials and
supplies in all storerooms and offices, (collectively, the
"Tangible Personal Property"), (a list which sets forth
substantially all of such Tangible Personal Property is attached
hereto as Exhibit "B"); provided, however, that Seller and its
affiliated companies are Tenants (as hereinafter defined) and,
therefore, "Tangible Personal Property" does not include, and
Seller is not selling to Buyer, any personal property of Seller
and its affiliated companies located on the Property that is not
being used primarily in connection with the operation or
management of the Property, including, without limitation, all
personal property on the 12th, 13th and 14th floors of the Office
Center;
(b) any and all of Seller's right, title and interest in
and to all leases, rental agreements, subleases, underleases or
agreements with respect to the Property and/or use and occupancy
thereof, together with any and all, if any, guaranties, security
deposits, or other security for performance of a tenant's
obligations thereunder, and all Amendments (as hereinafter
defined) and/or other agreements forming a part thereof affecting
or pertaining to the performance of the transactions or carrying
on of the business contemplated herein, including but not limited
to, the sale of alcoholic beverages in or on the Property
(collectively, the "Leases"), including, but not limited to, (i)
the leases set forth and described on Exhibit "C-1" attached
hereto (the "Office Leases"), (ii) the leases set forth and
described in Exhibit "C-2" attached hereto (the "Residential
Leases"), (iii) the room, ballroom, banquet, convention and other
types of use and/or rental agreements made in connection with the
Hotel (the "Hotel Leases"), (iv) the leases and/or use agreements
to Tenants (as hereinafter defined) and the Hotel for such
Tenants' and the Hotel's use of the EntelCom System (as
hereinafter defined), which leases and agreements are listed on
Exhibit "C-3" attached hereto (the "EntelCom Leases") and (v)
that certain lease agreement (which Seller shall cause FIC Realty
to assign to Buyer or Buyer's designee), dated September 30,
1994, between FIC Realty Services, Inc., a Texas corporation
("FIC Realty"), as lessor, and Atrium Beverage Corporation, a
Texas corporation, as lessee, covering the leasing of space in
the Property to sell alcoholic beverages by Atrium Beverage
Corporation (the "Atrium Beverage Lease");
(c) any and all of Seller's right, title and interest in
and to (i) security deposits and/or prepaid rentals taken from
any Tenant under any Office Lease or Residential Lease (the
"Security Deposits"), and (ii) deposits taken from any guests,
groups, conventions or others, and any other amounts prepaid in
connection with services to be rendered on or after the Closing
Date (as hereinafter defined) now in the possession of Seller or
Omni Hotel (as hereinafter defined) or hereinafter received by
Seller or Omni Hotel in connection with the running and
operations of the Hotel (the "Reservation Deposits");
(d) any and all of Seller's right, title and interest in
and to any and all, if any, agreements, and all Amendments
thereof, for construction work, materials or equipment or for
architectural services, professional engineering services or
other services, which entitles the Person (as hereinafter
defined) furnishing the same to file a lien against the Property
and which has a term expiring after the Closing Date (as
hereinafter defined) or under which any amount remains due and
owing to the applicable Person (collectively the "Construction
Contracts");
(e) any and all of Seller's right, title and interest in
and to all contracts or agreements (other than the Construction
Contracts), and Amendments thereof, for the furnishing of
management, maintenance, repairs, supplies, equipment or other
services to the Property, including, but not limited to, the
equipment leases for the EntelCom System (other than the EntelCom
Leases), which have a term expiring after the Closing Date
(collectively, the "Service Contracts"), including, but not
limited to, (i) that certain management agreement (the "FIC
Management Agreement") dated September 4, 1991 between Seller and
FIC Property Management, Inc., a Texas corporation ("FIC
Management"), (ii) that certain hotel management agreement (the
"Omni Hotel Agreement") dated May 6, 1992 between FIC Realty and
Omni Hotels Management Corporation, a Delaware corporation ("Omni
Hotel"), (which Seller shall cause FIC Realty to assign to
Buyer), (iii) that certain parking management agreement (the
"Central Parking Agreement") dated March 1, 1991 between Texas
AP, Inc., Seller's predecessor in title, and Central Parking
System of Texas, Inc. ("Central Parking") and (iv) that certain
management agreement (the "Atrium Beverage Agreement") dated
September 30, 1994 between HCD Austin Corporation, as agent for
FIC Realty d/b/a Omni Austin Hotel and Atrium Beverage
Corporation, which Seller shall cause FIC Realty to assign to
Buyer or Buyer's designee, (FIC Management, FIC Realty, Omni
Hotel, and Central Parking are hereinafter collectively referred
to as the "Managers"); provided, however, that "Service
Contracts" do not include the MCI Corporate Service Plan
Agreement between Seller and MCI Telecommunications Corporation
("MCI") dated on or about March 31, 1994 (the "MCI Agreement")
whereby MCI provides long-distance telecommunication services to
Seller, its affiliates, Tenants of the Office Center and guests
and employees of the Hotel (Seller is prohibited by the MCI
Agreement from disclosing the financial provisions of the MCI
Agreement to Buyer or any other third party);
(f) any and all of Seller's right, title and interest in
and to any and all, if any, building and other permits,
certificates, licenses, franchises, authorizations and approvals
granted by any Government Entity (as hereinafter defined)
necessary or useful in connection with the Property and/or the
operation of the Improvements or any part thereof (the "Licenses
and Permits"), excluding all liquor licenses affecting or in use
in any part of the Property, which enable liquor and alcoholic
beverages to be sold and dispensed in certain portions of the
Property (the "Liquor Licenses"), but including, but not limited
to, that certain License Agreement (herein so called) dated May
6, 1986, and recorded in Volume 9824, Page 225 of the Real
Property Records of ▇▇▇▇▇▇ County, Texas;
(g) all of the outstanding capital stock of Atrium Beverage
Corporation (the holder of the Liquor Licenses) currently owned
by FIC Realty, which Seller shall cause to be assigned to Buyer
or Buyer's designee upon receipt of the necessary regulatory
approvals on or after the Closing Date;
(h) all goodwill owned by Seller related to the operation
of the Property, including, without limitation any and all of
Seller's right, title and interest in and to (i) the telephone
numbers and listings of the Office Center and/or Hotel, (ii) any
and all, if any, trade names, trademarks, service marks, logos
and all copyrights used exclusively in connection with the
Property or any portion thereof, except those belonging
specifically to Omni Hotel or its affiliates or any Tenants, and
(iii) any and all, if any, video tapes, films, brochures and
other advertising and promotion materials of any kind or nature
owned by Seller and used in connection with the advertising of
the Property or any portion thereof (collectively the "Trade
Materials");
(i) all books, records, Tenant, guest and customer lists
for the Office Center, Residential Space and/or Hotel owned by
Seller and in possession of Seller or any of the Managers
together with any and all files, reports, surveys, studies,
projections, budgets and strategic plans prepared for Seller in
connection solely with the operation, maintenance or management
of the Property or any portion thereof and in possession of
Seller or any of the Managers (the "Books and Records");
(j) any and all of Seller's right, title and interest in
and to any and all, if any, architects' and engineers' drawings,
plans, specifications, models and work product, studies, surveys
and other materials developed in connection with the
construction, repair and maintenance of the Property or any
portion thereof owned by Seller and in the possession of Seller
or any of the Managers (the "Plans");
(k) any and all of Seller's right, title and interest in
and to any and all, if any, unexpired warranties and guaranties
and payment and/or performance bonds provided in connection with
any work or services provided under the Construction Contracts,
Service Contracts or otherwise in connection with the
construction and/or operation of the Property (collectively, the
"Warranties and Guaranties");
(l) any and all of Seller's right, title and interest in
and to that certain parking lease agreement (the "Saint David's
Lease"), dated April 1, 1992 between Protestant Episcopal Church
Council of the Diocese of Texas and St. David's Episcopal Church,
collectively as landlord (the "Saint David's Landlord"), and
Seller, as tenant, providing for additional parking space for the
use of the Property; and
(m) all meat, fish and poultry inventories on hand at, and
other food and non-alcoholic beverage inventories at, and for use
at, the Property and owned by Seller at 12:01 a.m. on the Closing
Date (the "Consumables").
4. The Land, the Improvements, the Tangible Personal
Property, the Leases, the Security Deposits, the Reservation
Deposits, the Construction Contracts, the Service Contracts, the
Licenses and Permits, the Trade Materials, the Books and Records,
the Plans, the Warranties and Guaranties, the Saint David's Lease
and the Consumables are sometimes referred to collectively as the
"Property".
NOW THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, and intending to be legally
bound hereby, Seller and Buyer covenant and agree as follows:
1. Purchase and Sale. Seller shall, on the Closing Date,
sell, grant, convey, assign, transfer and deliver the Property to
Buyer, and Buyer agrees to purchase, acquire and accept the
Property from Seller subject to only those Encumbrances (as
hereinafter defined) listed on Exhibit "D" attached hereto (the
"Permitted Exceptions"); provided, however, nothing contained in
this Section shall affect Buyer's right to review and assert
objections to the matters set forth on Exhibit "D" and in the
Title Commitment (as hereinafter defined) during the Due
Diligence Review (as hereinafter defined).
2. Consideration. Buyer will purchase the Property and
pay therefor the sum of Sixty-Two Million Six Hundred and
Seventy-Five Thousand and No/100 Dollars ($62,675,000.00) (the
"Purchase Price"), in lawful currency of the United States of
America, as follows:
(a) A Five Hundred Thousand and No/100 Dollars
($500,000.00) ▇▇▇▇▇▇▇ money deposit (the "Deposit") in cash, wire
transfer, or by cashier's or certified check, to be delivered on
September 5, 1995 to Heritage Title Company of Austin, Inc. (the
"Title Company"), as Escrow Agent, who shall hold and disburse
the Deposit in accordance with the provisions of Section 22 of
this Agreement.
(b) The Balance (herein so called), in cash or by cashier's
or certified check, or by federal funds wire, subject to closing
apportionment adjustments as hereinafter set forth, payable on
the Closing Date.
3. Documents and Deliveries at Closing; By Seller. At the
time and place of Closing (as hereinafter defined), upon payment
in full of the Purchase Price and satisfaction of all of Buyer's
obligations under this Agreement, Seller shall:
(a) Convey and deliver title to the Land and the
Improvements by Special Warranty Deed (herein so called) to
Buyer, in form substantially as that set forth in Exhibit "E"
attached hereto, duly executed and acknowledged by Seller.
(b) Assign and deliver to Buyer any and all of Seller's
right, title and interest in and to the Leases, together with any
Security Deposits, Reservation Deposits and advances and
prepayments paid by the Tenants in connection therewith, by an
Assignment and Assumption of Leases (herein so called), in form
substantially as that set forth in Exhibit "F" attached hereto,
duly executed and acknowledged by Seller.
(c) Assign and deliver to Buyer any and all of Seller's
right, title and interest in and to all Tangible Personal
Property, Trade Materials, Books and Records, the Plans and the
Consumables by a ▇▇▇▇ of Sale (herein so called), in form
substantially as that set forth in Exhibit "G" attached hereto,
duly executed and acknowledged by Seller.
(d) Assign and deliver to Buyer any and all of Seller's
right, title and interest in and to the Construction Contracts
and the Service Contracts (hereinafter collectively referred to
as the "Contracts") (other than such of the Contracts which by
their own terms have terminated prior to or at the Closing), and
the Saint David's Lease by an Assignment and Assumption of
Contracts and Saint David's Lease (herein so called), in form
substantially as that set forth in Exhibit "H" attached hereto,
duly executed and acknowledged by Seller.
(e) To the extent assignable, assign and deliver to Buyer
any and all of Seller's right, title and interest in and to the
Licenses and Permits, excluding the Liquor Licenses, by an
Assignment and Assumption of Licenses and Permits (herein so
called), in form substantially as that set forth in Exhibit "I"
attached hereto, duly executed and acknowledged by Seller.
(f) Cause FIC Realty to assign and transfer to Buyer or
Buyer's designee all of the outstanding capital stock of Atrium
Beverage Corporation.
(g) To the extent assignable, assign and deliver to Buyer
any and all of Seller's right, title and interest in and to the
Warranties and Guaranties by an Assignment and Assumption of
Warranties and Guaranties (herein so called), in form
substantially as that set forth in Exhibit "J" attached hereto,
duly executed and acknowledged by Seller.
(h) Deliver to Buyer Notice Letters (herein so called)
originally executed by Seller and individually addressed to (i)
each Tenant under an Office Lease, Residential Lease or EntelCom
Lease, in form substantially as that set forth in Exhibit "K-1",
attached hereto, (ii) each Manager, in form substantially as that
set forth in Exhibit "K-2" attached hereto, and (iii) the
landlord under the Saint David's Lease, in form substantially as
that set forth in Exhibit "K-3" attached hereto.
(i) Deliver to Buyer a certificate of the corporate
secretary of Seller attaching to it, inter alia, a true copy of
the minutes of the board of directors of Seller evidencing then
currently effective action by such board, in form substantially
as that set forth in Exhibit "L" attached hereto.
(j) Deliver to Buyer copies of all ad valorem tax
statements for the Property for the calendar year of the Closing,
if available and if not previously presented to Buyer.
(k) In respect of the amount of all Security Deposits and
Reservations Deposits and all other sums due Buyer under the
apportionments described in Section 14 hereof, deliver to Buyer
either (x) a cashier's or certified check in good and immediately
available funds or (y) a credit against the Balance.
(l) Deliver to Buyer the originals of the Leases, the Saint
David's Lease and the Contracts, and, if available, copies of the
Licenses and Permits and the Warranties and Guaranties.
(m) Deliver to Buyer the Books and Records in Seller's
possession together with the originals and/or copies of all Plans
in Seller's possession.
(n) Deliver to Buyer an affidavit originally executed by
Seller to the effect that Seller is not a foreign person for
purposes of 26 U.S.C. 1445(b)(2).
(o) Deliver to Buyer possession of the Property, subject to
the rights of Tenants in possession of the Property under written
leases or other occupancy agreements, in writing, delivered and
assigned to Buyer at Closing, together with all keys and
passcards to the Property.
(p) Deliver to Buyer any other documents or items required
to be delivered by Seller to Buyer under the terms of this
Agreement.
The documents described in this Section 3 are hereinafter
collectively referred to as the "Seller's Closing Documents".
4. Documents and Deliveries at Closing; By Buyer. At the
time and place of Closing (as hereinafter defined), Buyer shall:
(a) Execute and deliver to Seller the documents listed in
Sections 3(a)-(g) and such other documents as may be necessary to
effect as of the Closing Date an assumption by Buyer of all
obligations of Seller under the Contracts, the Leases, the
Licenses and Permits, the Warranties and Guaranties, the Saint
David's Lease, all obligations with respect to the Security
Deposits and Reservation Deposits, and all other obligations or
liabilities of Seller or the Property to be assumed by Buyer
pursuant to the terms of this Agreement. In addition, Buyer
shall use its reasonable best efforts to obtain releases of
Seller from all such obligations referred to in the preceding
sentence. To the extent that Buyer is unable to obtain such
releases, Buyer shall indemnify and hold Seller harmless of and
from all such obligations, including all costs, expenses and
attorney fees incurred by Seller in connection therewith.
(b) Deliver to Seller such documents as Seller may
reasonably require that evidence the organization, formation, and
authority of Buyer.
(c) Deliver to Seller the Balance.
The documents described in this Section 4 are hereinafter
collectively referred to as the "Buyer's Closing Documents."
5. New Leases. During the Inspection Period (as
hereinafter defined), Seller shall have the right, without the
consent of Buyer, to enter into new leases covering space located
in the Property ("New Leases") as long as any such New Lease
provides for (i) a market rental rate for comparable space, (ii)
a term not to exceed five (5) years, (iii) a leasing commission
not to exceed four percent (4%) of gross rents for the lease
term, and (iv) a tenant finish allowance not to exceed $17.50 per
square foot contained in the leased premises. Any New Lease not
meeting the foregoing criteria must be approved by Buyer. Buyer,
at the Closing, shall reimburse Seller for all tenant concession
expenses (including without limitation all finish out expenses
and tenant relocation expenses), all brokerage commissions and
all architectural and space planning expenses with respect to any
New Lease meeting the criteria described above and any New Lease
approved by Buyer pursuant to Section 17a(c) paid by Seller prior
to Closing, and such New Lease shall become part of the Leases
assigned to, and assumed by, Buyer at Closing.
6a. Seller's Documents and Title Commitment to be Made
Available. On or before the close of business on the date that
is five (5) business days following the Effective Date of this
Agreement (the "Delivery Date"), Seller shall deliver to Buyer
▇▇▇▇▇▇▇▇ "▇", "▇-▇", "▇-▇", and "C-3" and Schedules "1" through
"10" and shall deliver to Buyer or make available at the Property
copies of the documents referred to in the Exhibits and
Schedules and copies of the following documents and information:
A. Seller's existing as-built survey for improvements
(buildings, parking, utilities, etc.)
B. All fire, hazard, liability, and other insurance
policies held by Seller on the Property.
C. All of the most recent real estate and personal property
tax statements with respect to the Property.
D. All environmental, structural, and mechanical
evaluations, reports, or studies performed on the Property
in the past twenty four months.
E. The "as built" plans and specifications with respect to
the Property, if available.
F. Information on utility and repair expenses incurred by
Seller for operations of the Property for each month for the
preceding two years.
G. A commitment for Title Insurance (the "Title
Commitment") issued by the Title Company, together with a
copy of any and all instruments creating any exceptions
listed in the Title Commitment.
In addition, Seller shall make available at the Property any
and all other written material concerning the Property and its
ownership, condition, operation and maintenance, as well as all
financial records of the operation of all the assets of the
Property.
6b. Delivery of Survey and Estoppel Certificates. Within
twenty (20) days from the Effective Date of this Agreement,
Seller, at Seller's sole cost and expense, shall provide to Buyer
an updated on the ground survey (the "Survey") of the Property
dated after the Effective Date, prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a
Registered Professional Land Surveyor No. 2508, or such other
licensed professional engineer or surveyor acceptable to Seller,
Buyer and Title Company. The Survey shall be in a form
acceptable to the Title Company to modify the survey exception in
the Title Policy to read only "shortages in area". At least five
(5) business days prior to the last day of the Inspection Period
(as hereinafter defined) Seller shall deliver to Buyer Estoppel
Certificates (herein so called), in form substantially as that
set forth in Exhibit "M" attached hereto, originally executed by
at least 75% of the Tenants under the Office Leases (collectively
the "Estoppel Certificates"). To the extent any Tenants do not
execute and deliver an Estoppel Certificate, Seller shall execute
and deliver to Buyer an Estoppel Certificate with respect to such
Tenants substantially in the form of Exhibit M.
7. Closing Expenses. Seller shall pay the cost of the
Survey, the premium for the Title Policy (as hereinafter defined)
(provided, Buyer shall pay any additional premium to modify the
survey exception to read only "shortages in area") and Seller's
attorney's fees. Buyer shall pay the cost of recording the
applicable Seller's Closing Documents, the additional premium for
modifying the survey exception in the Title Policy to read only
"shortages in area", if Buyer elects to have that exception so
modified, and Buyer's attorneys' fees. Except as provided in
Section 14 below, all other costs in connection with the Closing
shall be paid by the party incurring such cost.
8. Conditions to Obligations of Buyer. The obligations of
Buyer to perform Buyer's obligations under this Agreement are and
shall be subject to the satisfaction of each of the following
conditions at or prior to the Closing:
(a) Seller shall have executed (where applicable) and
delivered the Seller's Closing Documents to be executed and
delivered by Seller.
(b) Seller, at Seller's sole cost and expense, shall
provide to Buyer at Closing an Owner's Policy of Title Insurance
issued by the Title Company in the amount of $62,675,000.00 (the
"Title Policy"), insuring good and indefeasible title to the
Property in Buyer, free and clear of all restrictions, easements,
encumbrances and liens except for the Permitted Exceptions.
(c) All of the representations and warranties of Seller
contained in this Agreement shall have been true and correct when
made in all material respects and (after giving effect to the
revised Schedules, if any, furnished to Buyer by Seller at the
Closing), shall be true and correct on the Closing Date in all
material respects with the same effect as if made on and as of
such date.
(d) Seller shall have performed, observed and complied with
all covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part
prior to or as of the Closing hereunder in all material respects.
(e) To the extent that any of the approvals, consents,
authorizations, licenses or permits of the Texas Alcoholic
Beverage Commission have not been received by Buyer or Buyer's
designee at or prior to the Closing, the assignment of the Atrium
Beverage Lease and Atrium Beverage Agreement and the transfer of
all of the outstanding capital stock of Atrium Beverage
Corporation to Buyer or Buyer's designee shall be postponed until
such time after the Closing as such approvals, consents,
authorizations, licenses or permits have been received by Buyer
or Buyer's designee.
(f) The FIC Management Agreement and Hotel Lease Agreement
dated August 22, 1991 between Seller, as lessor, and FIC Realty,
as lessee, shall have been terminated as of the Closing Date.
9. Conditions to Obligations of Seller. The obligations
of Seller to perform Seller's obligations under this Agreement
are and shall be subject to the satisfaction of each of the
following conditions at or prior to the Closing:
(a) Buyer shall have executed (where applicable) and
delivered the Buyer's Closing Documents to be executed and
delivered by Buyer.
(b) All of the representations and warranties of Buyer
contained in this Agreement shall have been true and correct in
all material respects when made, and shall be true and correct in
all material respects on the Closing Date with the same effect as
if made on and as of such date.
(c) Buyer shall have performed, observed and complied with
all covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part
prior to or as of the Closing hereunder.
10. Casualty to Property. Promptly after the occurrence of
any fire or other casualty affecting the Property or any portion
thereof occurring between the date hereof and the Closing Date
(the "Casualty"), Seller shall give Buyer written notice thereof
(the "Casualty Notice"), which Casualty Notice shall state the
type, location and amount of damage to the Property.
(a) If prior to the Closing such a Casualty shall occur and
the cost to complete repairs necessitated by such Casualty shall
equal $500,000 or more, then in any such event, Buyer or Seller
may at its sole option terminate this Agreement by written notice
to the other party (the "Casualty Termination Notice") within
twenty (20) days after the giving of the Casualty Notice
(provided, however, if the Closing is scheduled for a date which
is less than 20 days after the giving of the Casualty Notice, the
Closing shall be adjourned until 20 days after the giving of the
Casualty Notice). In the event either party gives the Casualty
Notice, the Deposit, together with all interest earned thereon,
shall be returned to Buyer, this Agreement shall be null and void
and neither party shall have any further liability or obligations
to the other (other than the obligation of Buyer to keep
confidential all documents and other material furnished to Buyer
pursuant to the transactions contemplated by this Agreement and
the indemnity obligation owed by Buyer to Seller in connection
with Buyer's Due Diligence Review, as provided in Section 16
hereof). If neither Buyer nor Seller elects to terminate this
Agreement, then the Closing shall take place as provided herein
without abatement of the Purchase Price, and at the Closing there
shall be assigned to Buyer all of Seller's rights, titles and
interests in and to any insurance proceeds covering such Casualty
and Seller shall pay to Buyer the lesser of (x) the actual cost
to complete repairs necessitated by such Casualty less the amount
of the insurance proceeds or (y) the cash amount of the
deductible under the property insurance carried by Seller.
(b) If prior to the Closing such a Casualty shall occur and
the cost to complete repairs necessitated by such Casualty shall
be less than $500,000, then, in any such event, Buyer shall have
no right to terminate its obligations under this Agreement, but
Seller shall be obligated to restore the Property to
substantially the condition as existed prior to such Casualty.
Under such circumstances, the Closing shall be postponed to a
date no later than ten (10) days after such restoration shall
have been substantially completed (substantial completion shall
mean: (i) final completion (excluding completion and correction
of all "punch list" items) of such repair, free of any liens, so
that the Property is restored to as good or better condition as
existed on the date of this Agreement, as approved by Buyer,
which approval shall not be unreasonably withheld or delayed;
(ii) that all approvals and permits required by the City of
Austin or any other political subdivision or agency thereof in
connection with the repair have been obtained; and (iii) any
interruption or impairment of services or function caused by the
Casualty or the repair work have been cured). Should such
restoration not be substantially completed six (6) months after
the occurrence of such Casualty, Buyer may at its sole option
terminate this Agreement by delivering a Casualty Termination
Notice to Seller, in which event the Deposit, together with all
interest earned thereon, shall be returned to Buyer, this
Agreement shall be null and void and neither party shall have any
further liability or obligations to the other (other than the
obligation of Buyer to keep confidential all documents and other
material furnished to Buyer pursuant to the transactions
contemplated by this Agreement and the indemnity obligation owed
by Buyer to Seller in connection with Buyer's Due Diligence
Review, as provided in Section 16 hereof). Notwithstanding the
foregoing, in the event Buyer's loan commitment allows Buyer's
proposed lender to terminate the loan commitment as a result of
any such Casualty, Buyer shall use its best efforts to obtain an
extension of such commitment, but if Buyer is not successful in
obtaining such extension, Buyer shall have the right to terminate
this Agreement by written notice to Seller within thirty (30)
days after the giving of the Casualty Notice and have the Deposit
returned to Buyer.
11. Condemnation. In the event of any taking of all or any
part of the Property by eminent domain proceedings or the
commencement of any such proceedings from the date hereof to
Closing, Seller shall promptly give Buyer written notice of such
proceeding stating the amount, type and location of such taking
or proposed taking and Buyer shall proceed as follows:
(a) Should any portion of the Improvements be condemned,
Buyer shall be permitted to terminate this Agreement by written
notice to that effect to Seller on or before the date fixed for
Closing, and the Deposit and interest earned thereon shall be
returned to Buyer. Thereafter, this Agreement shall become null
and void and neither party shall have any other liability or
obligation to the other (other than the obligations of Buyer to
keep confidential all documents and other material furnished to
Buyer pursuant to the transactions contemplated by this Agreement
and the indemnity obligation owed by Buyer to Seller in
connection with Buyer's Due Diligence Review, as provided in
Section 16 hereof).
(b) If only a portion of the Property (not comprising any
portion of the Improvements) is condemned, and the same would not
materially interfere with the present use thereof, Buyer will be
liable and obligated to take title to the remaining portion of
the Property without abatement of the Purchase Price, in which
event Seller shall assign to Buyer all of Seller's right, title
and interest in and to any award resulting from such
condemnation.
12. Real Estate Brokers. Seller shall pay to CB Commercial
Real Estate Group, Inc. ("Broker") any and all commissions, fees,
or other amounts owed to Broker in connection with the sale of
the Property pursuant to a separate agreement between Seller and
Broker. Seller shall pay to Omni Commercial Realty Advisors,
Inc. a commission of $300,000 and FIC Realty a commission of two-
tenths of one percent (0.2%) of the net sales price. Seller
shall defend, indemnify, and hold harmless, Buyer from any claim
by any party claiming under Seller for any brokerage, commission,
finder's or other fees relative to this Agreement or the sale of
the Property, and any court costs, attorneys' fees, or other
costs or expenses arising therefrom, and alleged to be due by
authorization of Seller. Buyer shall defend, indemnify, and hold
harmless Seller from any claim by any party claiming under Buyer
for any brokerage, commission, finder's, or other fees relative
to this Agreement or the sale of the Property, and any court
costs, attorneys' fees, or other costs or expenses arising
therefrom, and alleged to be due by authorization of Buyer.
Notwithstanding anything contained in this Agreement to the
contrary, the terms of this Section 12 shall survive the Closing
or earlier termination of this Agreement.
13. Closing. Consummation of the transactions contemplated
by this Agreement (the "Closing") shall be held on the first
business day (the "Closing Date") that is ten (10) days after the
earlier of (i) the date on which Buyer notifies Seller that it
has obtained the third party financing to purchase the Property
or (ii) the end of the Financing Feasibility Period as described
in Section 16(c), subject to any extension required by Section 10
hereof. The Closing shall be held at 10:00 a.m. Austin, Texas
time at a location in the City of Austin, Texas to be agreed
upon. Seller and Buyer may mutually agree in writing upon an
earlier or later date for the Closing.
14. Apportionments and Additional Payments. The following
apportionments and payments are to be made as of the Closing
Date:
(a) Real property taxes, assessments (including without
limitation assessments made by the Austin Downtown Public
Improvement District), water and waste water charges and other
municipal charges, if any, shall be apportioned on the basis of
the tax year or other period for which assessed.
(b) All (i) rents, additional rents and percentage rents
under the Office Leases, Residential Leases, EntelCom Leases and
the Atrium Beverage Lease as, when and to the extent actually
collected, all income of any type arising from the Hotel, subject
to Section 14(e) below, and (ii) all charges payable under the
Saint David's Lease and the Contracts shall be apportioned.
(c) Charges for the consumption of electricity, fuel oil on
the Property, steam, gas, telephone services and other utility
services, if any, shall be apportioned (except that no
apportionment shall be made for any such items that are furnished
and charged by the applicable utility company directly to Tenants
under Leases).
(d) At the Closing, Buyer shall pay to Seller, in cash or
by cashier's or certified check, or by federal funds wire
transfer, a sum equivalent to all monies in house banks, ▇▇▇▇▇
cash and cash registers, other than monies that Atrium Beverage
Corporation owns or is entitled to receive, which it shall
retain. Such monies shall be counted jointly by representatives
of Seller and Buyer on the Closing Date.
(e) Transient rentals for guests and income from rooms and
lodging for the day and night of the Closing Date and income from
food and beverage operations for the day and night of the Closing
Date shall belong to Seller.
(f) The fees for Licenses and Permits assigned hereby shall
be apportioned.
(g) All prepaid rents, room rental deposits, and all other
deposits for advance reservations, banquets or future services
shall be paid over to Buyer.
(h) At the Closing, Buyer shall pay to Seller, in cash or
by cashier's or certified check, or by federal funds wire
transfer, a sum equivalent to the cost of all Consumables based
on an inventory of such items made by representatives of Seller
and Buyer at 12:01 a.m. on the Closing Date. Cost shall be the
cost actually paid by Seller for the Consumables as evidenced by
Seller's paid invoices for such items.
(i) Advertising expenses and unused advertising contracts
shall be apportioned, and Buyer shall assume existing contracts
for billboard space and shall be responsible for payments thereon
that accrue for the period after the Closing Date. All such
advertising contracts and contracts for billboard space are set
forth in Schedule "10" attached hereto.
(j) Trade publications and subscriptions, and hotel and
trade association dues shall be apportioned.
(k) Music and entertainment expenses, music license fees
and broadcasting charges shall be apportioned.
(l) Except as herein otherwise provided, all unpaid
commissions, fees or other charges due real estate brokers or
other Persons with respect to any Lease shall be paid by Seller
at or prior to Closing.
Except as herein otherwise provided, all apportionments
provided for in this Agreement shall be made as of 12:01 a.m. on
the Closing Date and based upon the actual number of days in the
period covered by the sum being apportioned. Seller shall use
reasonable efforts to have all utility companies and applicable
Governmental Entities provide meter readings to the Closing Date.
Closing adjustments and apportionments made pursuant to the
foregoing provisions shall be determined jointly by
representatives of Buyer and Seller tentatively at the Closing
and payment of the net figure resulting from such adjustment
shall be made by Buyer or Seller, as the case may be, by check or
by adjustment at the Closing. A final closing adjustment shall
be made by such representatives seventy-five (75) days after the
Closing, and to the extent that any additional payment or
repayment is indicated on such final closing adjustment, such
payment or repayment shall be made within five (5) days after
such final adjustment shall have been made.
15. Past Due Rents and Past Due Accounts.
(a) Omni Hotel shall act as collecting agent for Seller in
respect to the collection of all account receivable balances due
to Seller originating prior to the Closing Date from the
operations of the Hotel from tenants, guests and patrons of the
Hotel for rents and customary hotel and restaurant and cocktail
lounge charges (whether comprised of credit card receivable
payments or otherwise). All payments collected by Omni Hotel
after the Closing Date attributable to Seller's accounts
receivable shall be promptly remitted to Seller. Seller shall
contract with Omni Hotel separately for Omni Hotel to act as
Seller's agent in the collection of Seller's accounts receivable.
Seller shall have the right to institute any proceedings and take
any steps, in Seller's own name or in the name of the Managers,
to effect collection thereof; provided, however, that Seller
hereby agrees to indemnify, defend, exonerate and hold Buyer
harmless for all loss, liability, damage, cost, charge or
expenses (including Fees-and-Costs) incurred by, or asserted
against, Buyer resulting from any such action and/or Seller's
dealing with the particular Person with respect to the particular
controversy involved.
(b) Seller shall be solely responsible for the collection
of any rent, additional rent or other charges in arrears as of
the Closing Date, from any Tenant under an Office Lease,
Residential Lease or EntelCom Lease. Seller shall have the right
to institute any proceedings and take any steps, in Seller's own
name or in the name of the Managers,, to collect rent, additional
rent, or other charges due Seller in arrears as of the Closing
Date, together with the cost of collection thereof; but in no
event shall Seller seek any remedy other than collection of funds
from the particular Tenant which are in arrears as of the Closing
Date (and Seller shall not be entitled to seek a termination of
such Tenant's Lease or eviction of the Tenant); provided,
however, that Seller hereby agrees to indemnify, defend,
exonerate and hold Buyer harmless for all loss, liability,
damage, cost, charge or expense (including Fees-And-Costs)
incurred by, or asserted against, Buyer resulting from any such
action and/or Seller's dealing with the particular Person with
respect to the particular controversy involved.
(c) Neither party shall have an obligation to collect on
behalf of the other party any such past due accounts or rents
referred to in Subsection 15(a) and (b) above.
16. Inspection of the Property. (a) NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, SELLER IS CONVEYING THE PROPERTY
TO BUYER "AS IS", "WHERE IS", AND WITH ALL FAULTS AND
SPECIFICALLY AND EXPRESSLY EXCEPT AS SET FORTH IN SECTION 18a,
WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER
EXPRESS OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM
OR ON BEHALF OF THE SELLER. BUYER ACKNOWLEDGES AND AGREES THAT
DURING THE INSPECTION PERIOD, BUYER WILL CONDUCT ITS OWN
INDEPENDENT INVESTIGATION AND INSPECTION OF ALL ASPECTS OF THE
PROPERTY. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED BY SELLER TO BUYER WITH RESPECT TO THE
PROPERTY HAS BEEN OBTAINED FROM A VARIETY OF SOURCES AND THAT
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION.
(b) Buyer shall have until 45 days after the later of (i)
the Effective Date or (ii) the date on which Seller has notified
Buyer that substantially all of the documents and information
described in Section 6a have been made available to Buyer (the
"Inspection Period") to inspect and review, at Buyer's sole cost
and expense, all matters relating to the Property (the "Due
Diligence Review"), including without limitation all plans and
specifications, the physical condition of the Property,
Contracts, Leases, Licenses and Permits, Trade Materials, Books
and Records, Plans, Warranties and Guaranties, Survey, Title
Commitment, Estoppel Certificates, ad valorem property tax
statements, as well as any reports obtained by Buyer, all
documents relating to the construction, replacement or repair of
any portion of the Improvements, and any other document or other
aspect of the Property (if the same are available to Seller).
After execution of this Agreement and delivery of the Deposit to
the Title Company, Seller shall provide reasonable access to the
Property to Buyer and Buyer's agents and Seller shall make
available to Buyer documents in Seller's or Manager's possession
relating to the Property at the offices of the Manager of the
Property, all during normal business hours. Buyer shall not
interfere with Seller's or any Tenant's business operations and
shall not contact any Tenant or Manager without the prior
approval and participation of Seller.
If Buyer, at its sole and exclusive discretion, chooses not
to proceed to Closing, Buyer shall give written notice (the
"Inspection Termination Notice") to Seller of such fact on or
before the close of business on the last day of the Inspection
Period (the "Cutoff Date"). If Buyer does not timely give the
Inspection Termination Notice to Seller, Buyer shall be deemed to
be satisfied with the Property and all matters relating thereto,
including, without limitation, the Survey, Title Commitment,
Estoppel Certificates and other documents and information made
available to Buyer during its Due Diligence Review. If Buyer
timely gives the Inspection Termination Notice to Seller, the
Deposit together with all interest earned thereon shall be
immediately returned to Buyer, less and with the exception of One
Hundred and No/100 Dollars ($100.00) of the Deposit together with
all interest earned on such $100 which shall be immediately
delivered to Seller in consideration for the Due Diligence Review
and Sellers' entering into this Agreement. If Buyer timely gives
the Inspection Termination Notice to Seller, all rights and
obligations of the parties hereto shall terminate (other than the
obligation of Buyer to keep confidential all documents and other
material furnished to Buyer pursuant to the transactions
contemplated by this Agreement and the indemnity obligation owed
by Buyer to Seller in connection with Buyer's Due Diligence
Review, as provided in this Section 16), and this Agreement shall
be null and void and of no further force and effect.
Buyer shall be solely responsible for all damage or loss of
any kind or nature whatsoever, whether to persons or to property,
which may arise as a result of or otherwise because of the acts
or omissions of Buyer or its agents in connection with the Due
Diligence Review and Buyer shall promptly and at its expense
restore the Property and repair any damage occasioned by such
review to the condition the Property was in prior to such review.
Buyer does hereby indemnify and hold Seller harmless from and
against all loss, cost, damage, claim and liability of any kind
and nature which may arise as a result of or otherwise because of
any act or omission of Buyer or its agents.
All matters reviewed or discovered by Buyer in the course of
the Due Diligence Review and all other documents and materials
furnished by or on behalf of Seller to Buyer pursuant to the
transactions contemplated by this Agreement shall be strictly
confidential and shall be deemed to be "Evaluation Material"
under the Confidentiality Agreement - Principal between Buyer and
Broker ("Confidentiality Agreement"). The Confidentiality
Agreement, the Confidentiality Agreement-Agent and the
Registration Agreement attached hereto as Exhibit "O" are
incorporated herein by reference. If no Closing occurs
hereunder, this paragraph, the preceding paragraph and the
Confidentiality Agreement shall survive the termination of this
Agreement.
(c) Buyer shall have ninety (90) days after the Effective
Date (the "Financing Feasibility Period") to obtain third party
financing upon terms acceptable to Buyer. If, after the Cut-Off
Date, Buyer determines that Buyer is unable to obtain acceptable
financing, Buyer shall give written notice (the "Financing
Termination Notice") to Seller of such fact on or before the
close of business on the last day of the Financing Feasibility
Period. If Buyer timely gives the Financing Termination Notice
to Seller, the Deposit together with all interest earned thereon
shall be immediately returned to Buyer, less and with the
exception of an amount certified by Seller equal to Seller's out
of pocket expenses incurred in connection with this Agreement and
the transactions contemplated hereby paid to third parties
including, without limitation, Seller's attorneys' fees and
expenses, costs of the Survey, and architectural and engineering
consulting expenses, and photocopying and reproduction expenses,
up to but not exceeding $40,000, which amount shall be
immediately delivered to Seller.
If Buyer timely gives the Financing Termination Notice to
Seller, all rights and obligations of the parties hereto shall
terminate (other than the obligation of Buyer to keep
confidential all documents and other material furnished to Buyer
pursuant to the transactions contemplated by this Agreement and
the indemnity obligation owed by Buyer to Seller in connection
with Buyer's Due Diligence Review, as provided in this Section
16), and this Agreement shall be null and void and of no further
force and effect.
If Buyer does not timely give the Financing Termination
Notice, the Deposit shall become fully non-refundable except for
Seller's uncured default or failure to close on the Closing Date.
17a. Covenants of Seller. Seller hereby agrees that (unless
a different period is specified) during the period between the
date hereof and the Closing Date:
(a) After the Effective Date until the Closing Date, Seller
(i) will manage the Property or cause the Property to be managed
in accordance with past practices and shall continue to offer
services and amenities in accordance with such past practices,
and (ii) continue past normal practice with respect to
maintenance and repairs of the Property and the Property will be
of at least the same quality on the Closing Date as on the
Effective Date, except for normal wear and tear and any Casualty
covered by Section 10 of this Agreement.
(b) After the Cut-Off Date until the Closing Date, Seller
will not, without the prior written consent of Buyer (which shall
not be unreasonably withheld or delayed), (i) terminate or modify
in any material way any Office Lease, Residential Lease, EntelCom
Lease, Contract, License and Permit, or Warranty and Guaranty or
(ii) enter into any new Contract.
(c) After the Cut-Off Date until the Closing Date, Seller
will not, without the prior written consent of Buyer (which shall
not be unreasonably withheld or delayed), enter into any New
Lease.
(d) Seller shall promptly notify Buyer of any material
change in any condition with respect to the Property or of any
event or circumstance which makes any representation or warranty
of Seller to Buyer under this Agreement untrue or misleading in
any material respect.
(e) Seller shall allow Buyer or Buyer's representatives
access to the Property, and to the Books and Records relating to
the Property as well as to the Leases, Contracts, Licenses and
Permits, Plans, Trade Materials, Warranties and Guaranties and
other documents required to be delivered under this Agreement
upon reasonable prior notice and at reasonable times. Seller
shall cooperate with Buyer and its representatives and allow
them, at Buyer's expense, to make extracts and photocopies from
the Books and Records and other items described in this
Subsection 17(e). Buyer's access to the Property under this
Subsection 17(e) shall be subject to the same conditions as set
forth in Section 16 above.
(f) After the Cut-Off Date, Seller shall cooperate in good
faith with Buyer to obtain all consents, authorizations, orders,
licenses, permits, certificates or approvals of (or filing or
registrations with) any federal, state, local or city
governmental or regulatory body required for the execution,
delivery and performance of the transactions contemplated by this
Agreement (including, without limitation, all approvals of the
Texas Alcoholic Beverage Commission required for the assignment
of the Atrium Beverage Lease and Atrium Beverage Agreement to
Buyer or Buyer's designee and the transfer of all of the
outstanding capital stock of Atrium Beverage Corporation to Buyer
or Buyer's designee) and to diligently and in good faith perform
and comply with or cause Atrium Beverage Corporation to perform
and comply with all requirements and conditions that may be
imposed by any such governmental or regulatory body on Buyer,
Seller or Atrium Beverage Corporation in connection with the
issuance of such approvals, consents, authorizations, licenses or
permits.
(g) Immediately upon obtaining knowledge of the institution
of any proceeding for the condemnation of the Property or any
portion thereof, or any other proceeding arising out of injury or
damage to the Property or any portion thereof, Seller will notify
Buyer of the pendency of such proceedings.
(h) Prior to termination of this Agreement, Seller will not
enter into any agreement that will dispose of the Property, or
any part thereof (other than in the ordinary course of business).
(i) Seller will not, without the prior written consent of
Buyer, create, place, or permit the placing of, any deed of
trust, mortgage, lien, security interest, encumbrance, or charge
on the Property, except for the lien for ad valorem taxes on the
Property which are not delinquent, and should any of the
foregoing become attached hereafter in any manner to any part of
the Property without the prior written consent of Buyer, Seller
will cause the same to be promptly discharged and released.
(j) Seller shall cause FIC Realty to assign the Atrium
Beverage Lease and Atrium Beverage Agreement and to transfer all
of the outstanding capital stock of Atrium Beverage Corporation
to Buyer or Buyer's designee at the Closing or as soon as
practical after the Closing when the necessary regulatory
approvals for such assignment and transfer are obtained.
(k) Seller shall complete the replacement of the roof on
the Property at Seller's sole expense, whether such completion
occurs before or after Closing. If the roof is not completed by
the Closing Date, Seller shall deposit with the Title Company as
Escrow Agent an amount sufficient to complete the roof
replacement in accordance with the roof construction contract.
(l) On or before the Delivery Date, Seller will furnish the
Buyer binders which contain a copy of each Lease, Service
Contract, Construction Contract, License and Permit and Warranty
and Guaranty.
(m) After the Cut-Off Date until the Closing Date, Seller
will, at Buyer's request, use its reasonable best efforts (i) to
obtain MCI's written consent to long distance telecommunication
services being provided pursuant to the MCI Agreement after the
Closing Date to Buyer (with separate billing to Buyer) for the
Tenants of the Office Center and guests and employees of the
Hotel or (ii) obtain for Buyer long-distance telecommunication
services from another provider at rates comparable to those under
the MCI Agreement.
17b. Covenants of Buyer. Buyer hereby agrees that:
(a) St. David's Lease. Buyer shall provide to the St.
David's Landlord such financial information as the St. David's
Landlord may require in order for it to approve or disapprove the
creditworthiness of Buyer pursuant to Section 29 of the St.
David's Lease.
(b) Omni Hotel Agreement. Buyer shall provide to Omni
Hotel such information as Omni Hotel may require in order for it
to make its determination with respect to Buyer's financial
responsibility and reputation pursuant to Section 16.3(a) of the
Omni Hotel Agreement. If Omni Hotel terminates the Omni Hotel
Agreement pursuant to Section 16.3(a) thereof effective as of the
Closing Date, Buyer shall assume all of Seller's obligations
under Articles XIX and XXI of the Omni Hotel Agreement.
(c) Property Management Staff. If Buyer does not acquire
the Property pursuant to this Agreement, Buyer agrees that for a
period of one year from the Effective Date, it will not employ
any of the property management staff of the Property currently
employed by FIC Management and its affiliates. This covenant
shall survive the termination of this Agreement.
(d) Financial Statements. Within twenty (20) days after
the Effective Date, Buyer will deliver to Seller current
financial statements of Buyer and all Persons who are or will
become general and limited partners of, and other equity
investors in, Buyer.
(e) Seller's Name and Logos. After the Closing, Buyer
shall not use the name or logos of Seller or any of Seller's
affiliated companies, including, without limitation, the word
"FIC", in connection with the Property, its advertising or
otherwise.
18a. Seller's Representations and Warranties. Seller
represents and warrants to Buyer as follows, which
representations and warranties shall be true and correct in all
material respects as of the date hereof and, after giving effect
to the revised Schedules, if any, furnished to Buyer by Seller at
the Closing, as of the Closing Date, and which shall not survive
the Closing and conveyance of title:
(a) Existing Leases.
(i) To Seller's knowledge, Exhibits C-1, C-2 and
C-3 attached hereto are lists of each and every Lease
affecting or encumbering all or a portion of the Office
Space, Residential Space or EntelCom System, respectively,
together with all Amendments thereof (such leases together
with the Atrium Beverage Lease being hereinafter
collectively referred to as the "Existing Leases").
(ii) To Seller's knowledge, Schedule "1" attached
hereto is a Rent Roll (herein so called) of the Existing
Leases, current through the date hereof, containing the
following information for the Existing Leases where
applicable: (1) the Tenant's name, (2) the suite, office or
apartment number, (3) the approximate amount of square
footage leased, (4) annual rent, (5) the amount of prepaid
rental, (6) the amount of the security deposit, (7) the date
of the Existing Lease, (8) any rent arrearages and (9)
actual current rent with respect to such leased space as of
the date of the Rent Roll.
(iii) To Seller's knowledge, except as described
on Schedule "2" attached hereto, (A) the Existing Leases are
in full force and effect; (B) no Tenant has failed and is
continuing to fail to observe or perform any agreement,
covenant or obligation under an Existing Lease, including,
but not limited to, the payment of any sum due under an
Existing Lease; and (C) Seller is not aware of any failure
of Seller, which is continuing, in the observance or
performance of any agreement, covenant or obligation on the
part of the landlord/lessor under an Existing Lease.
(iv) To Seller's knowledge, except as set forth
on Schedule "2" attached hereto, there are no material
disputes with any Tenant concerning any of the Existing
Leases presently existing or threatened.
(v) To Seller's knowledge, except for the Tenants
in the Hotel, Seller and the Managers, and except as set
forth on Schedule "2" attached hereto, there are no Persons
occupying space in the Property as tenants, subtenants or
occupants other than the Tenants specifically named in the
Existing Leases, employees and agents of such Tenants, and,
in the case of ▇▇▇▇ ▇▇▇▇▇, who operates executive office
suites on the fifth floor of the Office Center, licensees of
▇▇. ▇▇▇▇▇.
(b) Certificate or Occupancy, Law and Ordinances,
Condemnation and Zoning.
(i) The certificate of occupancy set forth in
Schedule "3" is a true and correct copy of the certificate
of occupancy for the Property.
(ii) To Seller's knowledge, no notice of any
material Violation of any zoning, building or other law,
ordinance, regulation, requirement or directive of any type
against the Property or any portion thereof has been
received by Seller.
(iii) To Seller's knowledge, no notice of a
pending condemnation, expropriation, eminent domain or
similar proceeding affecting all or any portion of the
Property has been received by Seller.
(c) Operating Statements. On or before the Delivery Date,
Seller will deliver to Buyer copies of all monthly, quarterly,
annual and other operating reports prepared by either FIC
Management or Omni Hotel covering the Office Center and Hotel,
respectively, for the years 1993 and 1994 and the first six
months of 1995, and Seller shall forward promptly to Buyer all
such future reports made after the date hereof until the earlier
of the Closing Date or the termination of this Agreement.
(d) Restrictions and Easements. To Seller's knowledge, no
material default or breach exists under any of the covenants,
conditions, restrictions, rights-of-way or easements, if any,
affecting all or any portion of the Property which are to be
performed or complied with by the owner of the Property,
including, but not limited to, the License Agreement.
(e) Service Contracts. To Seller's knowledge, (i) Schedule
"4" attached hereto sets forth a list of all Service Contracts
affecting the Property, (ii) except as set forth on Schedule
"4", there are no material disputes with the contractors, vendors
or Managers under such Service Contracts presently existing or
threatened and (iii) except as listed on Schedule "4", each such
Service Contract is terminable by Seller without penalty on not
more than thirty (30) days' prior notice.
(f) Construction Contracts. To Seller's knowledge, (i)
Schedule "5" attached hereto sets forth a list of all
Construction Contracts under which work affecting the Property is
not yet complete, and (ii) except as set forth on Schedule "5",
there are no material disputes with the contractors thereunder
presently existing or threatened.
(g) Licenses and Permits. To Seller's knowledge, (i)
Schedule "6" attached hereto sets forth a list of all Licenses
and Permits currently affecting the Property, and (ii) except as
set forth on Schedule "6", there are no material disputes with
any Government Entity or other Person thereunder presently
existing or threatened.
(h) Warranties and Guaranties. To Seller's knowledge, (i)
Schedule "7" attached hereto sets forth a list of all Warranties
and Guaranties currently covering the Property or any portion
thereof or issued and to cover the Property in the future, and
(ii) except as set forth on Schedule"7", there are no material
disputes with any Person thereunder presently existing or
threatened.
(i) Trade Materials. To Seller's knowledge, (i) Schedule
"8" attached hereto contains a description of all Trade Materials
and (ii) there are no material disputes with any Government
Entity or Person with respect to any Trade Material presently
existing or threatened.
(j) Legal Proceedings and Bankruptcy.
(i) To Seller's knowledge, except as set forth in
Schedule "9" attached hereto, there are no outstanding
judgments, orders, writs, injunctions or decrees of any
Government Entity, no pending Legal Proceedings or threats
of any material Legal Proceedings, and no proceedings to
foreclose any mortgage, security instrument, lien or other
claim against: (A) the Property; or (B) Seller in
connection with the Property.
(ii) There is not pending, with regard to Seller, any
petition or proceeding in bankruptcy or for the appointment
of a receiver or trustee nor has Seller committed any act of
bankruptcy or been adjudicated a bankrupt or entered into an
assignment for the benefit of creditors, nor is there
pending, with regard to Seller, any petition for its
reorganization, nor has Seller admitted in writing its
inability to pay its debts as they mature.
(k) FIRPTA. Seller is not a foreign person within the
meaning of Section 1445(b)(2) of the Internal Revenue Code of
1986, as amended.
(l) Authority, Actions of Seller, Authorization and
Consents. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Washington. Seller has all necessary power and lawful authority
to own and operate its assets and properties, including, but not
limited to the Property, and to carry on its business. Seller
has delivered to Buyer a copy of the articles of incorporation
and by-laws of Seller together with all Amendments thereof. The
execution and delivery by Seller of this Agreement and the
Seller's Closing Documents, and the consummation by Seller of the
transactions contemplated thereby, have been duly authorized by
all necessary action of Seller and duly approved by the board of
directors of Seller. Other than the consents and/or approvals of
the shareholders and/or board of directors of Seller and those
contemplated by this Agreement, there are no other approvals,
authorizations, consents or other actions by or filings with any
Person which are required to be obtained or completed by Seller
in connection with the execution and delivery of this Agreement
or any of Seller's Closing Documents (or any other agreement or
instrument required hereunder) or in connection with any other
action required to be taken by Seller hereunder at or before the
Closing. All of the outstanding capital stock of Atrium Beverage
Corporation is owned by FIC Realty and when such stock is
transferred by FIC Realty to Buyer pursuant to this Agreement,
Buyer will acquire valid title thereto, free and clear of all
liens and encumbrances.
(m) EXCEPT AS SET FORTH IN THIS SECTION 18a, SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES, 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 THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO: (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH BUYER 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,
INCLUDING, BUT NOT LIMITED TO, ANY STATE OR FEDERAL ENVIRONMENTAL
LAW, RULE OR REGULATION; (E) THE HABITABILITY, MERCHANTABILITY OR
FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE; OR (F) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY. BUYER HEREBY WAIVES
ANY SUCH REPRESENTATION, WARRANTY, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES.
At the Closing, Seller, if necessary, may furnish to Buyer
revisions to the Schedules attached hereto so as to reflect
changes to the information presented thereon between the date of
this Agreement and the Closing Date.
18b. Buyer's Representations and Warranties. Buyer
represents and warrants to Seller as follows, which
representations and warranties shall be true and correct as of
the date hereof and as of the Closing Date, and which shall not
survive the Closing and conveyance of title:
(a) Buyer is a Texas joint venture validly existing under
the laws of the State of Texas;
(b) Buyer is duly organized, is in good standing and
authorized to do business in Texas, and has the power to carry
out its obligations under this Agreement.
(c) This Agreement is a valid and legally binding
obligation of Buyer in accordance with its terms.
(d) The execution, delivery and performance by Buyer of
this Agreement do not and will not violate any provision of law,
of any order, judgment or decree of any court or other
governmental authority, or of any agreement or other instrument
to which Buyer is a party or by which Buyer is bound, and will
not result in a breach of or constitute a default under any
agreement or other instrument which could result in the creation
or imposition of any lien, charge or encumbrance of any kind upon
the Property.
(e) No actions, suits, investigations, litigation,
bankruptcy, reorganization or other proceedings are pending at
law or in equity or before any federal, state, territorial,
municipal or other government department, commission, board,
bureau, agency, courts or instrumentality, or to its knowledge,
are threatened against or affecting Buyer which would prohibit
Buyer from purchasing the Property.
(f) The execution, delivery and performance of the
Agreement, and any and all documents to be executed by or
received by it will not constitute a breach or default under any
other agreement to which Buyer is a party or by which Buyer may
be bound or affects, or a violation of any law or court order
which may affect Buyer's ability to purchase the Property.
(g) Buyer is reasonably confident that it will be able to
obtain the third party financing it needs to consummate the
purchase of the Property from Seller pursuant to the terms of
this Agreement.
(h) Buyer has delivered to Seller a copy of its joint
venture or partnership agreement and all other documents that
govern its organization, authority and operation.
19. Safe Deposit Boxes. On the Closing Date, Seller shall
deliver to Buyer all keys to the safe deposit boxes in the Hotel,
all receipts and agreements relating to such safe deposit boxes
and a complete list of such safe deposit boxes which list shall
contain the name and room number of each depositor. On the
Closing Date, Seller shall send written notice to the guests in
the Hotel who have safe deposit boxes advising them of the sale
of the Hotel to Buyer and the procedures to be followed pursuant
to this Section 19 and requesting the removal and verification of
the contents thereof within five (5) days after the Closing Date.
Seller at its own expense shall have a representative at the
Hotel during said 5 day period. All such removals and
verifications during said 5 days shall be under the supervision
of a representative of Buyer and the representative of Seller.
Boxes of guests who have not responded to such written notice
shall be listed at the end of such 5 day period. Said boxes
shall be opened in the presence of the representatives of Buyer
and Seller and the contents recorded. Any such property so
recorded and thereafter remaining in the safe deposit boxes under
the control of Buyer shall be the responsibility of Buyer.
20. Baggage Inventory. All baggage checked with or left in
the possession of Seller shall be listed on an inventory to be
prepared in duplicate on the Closing Date and signed by
representatives of Seller and of Buyer and all books, records and
keys concerning such baggage shall be delivered by Seller to
Buyer at the Closing. Buyer shall be responsible for all baggage
listed in such inventory on the Closing Date. Any baggage or
other property of guests retained by Seller as security for
unpaid account receivables may be left on the Property for a
period of ninety (90) days after the Closing Date without any
responsibility or liability therefor on the part of Buyer and
Seller hereby agrees to indemnify, defend, exonerate and hold
Buyer harmless against any claim, cost or expense in connection
with such retained baggage.
21. Indemnity and Survival. (a) Upon the Closing, Seller
agrees to and does hereby indemnify, defend, exonerate and save
Buyer harmless from and against any and all liability, loss,
damage, claims and expenses incurred or suffered by Buyer arising
out of or incidental to the operation of the Property by Seller
prior to the Closing Date, even though same may be asserted
after the Closing Date; provided, however, Seller shall not
indemnify, defend, exonerate or save Buyer harmless from or
against any liability, loss, damage, claims or expenses incurred
or suffered by Buyer arising out of or incidental to the physical
condition of the Land, Improvements or Tangible Personal Property
(the "Physical Conditions Exception"). Buyer agrees to and does
hereby indemnify, defend, exonerate and save Seller harmless from
and against any and all liability, loss, damage, claims and
expense incurred or suffered by Seller arising out of or
incidental to the operation of the Property by Buyer after the
conveyance of the Property to Buyer.
(b) The covenants and agreements set forth in ▇▇▇▇▇▇▇▇ ▇▇,
▇▇, ▇▇▇(▇), ▇▇▇(▇), ▇▇▇(▇), ▇▇▇(▇), 17b(e), 19, 20, and 21, the
indemnities set forth in Sections 4(a), 12, 15, 16, 20 and 21 and
any claim or cause of action based on fraud shall remain
operative and shall survive the Closing and the execution and
delivery of the Special Warranty Deed and shall not be merged
therein; no other representation, warranty, covenant or
agreements in this Agreement shall so survive. If no Closing
occurs hereunder, the covenants, agreements and indemnities set
forth in Sections 12, 16(b) and 17b(c) shall survive the
termination of this Agreement.
22. Deposit. (a) At the Closing, the Title Company, as
Escrow Agent, shall deliver the Deposit to Seller and deliver all
interest earned on the Deposit to Seller, and all such interest
shall be received by Seller as a credit against, and in reduction
of, the Balance.
(b) If title to the Property has not closed under this
Agreement because of the inability of Seller to close under this
Agreement, or because of a default by Seller causing a failure to
close under this Agreement or because of Buyer's termination of
this Agreement as permitted by and in accordance with the
provisions herein contained, or because any of the conditions to
the obligations of Buyer set forth in Section 8 have not been
satisfied, the Title Company shall promptly return the Deposit,
plus all interest earned thereon, to Buyer, less any amount to be
paid to Seller pursuant to Section 16, upon being notified in
writing by Buyer and Seller (i) of the amount, if any, to be paid
to Seller pursuant to Section 16 and (ii) that Buyer has returned
to Seller all documents provided by Seller or Broker to Buyer
pursuant to this Agreement and the Confidentiality Agreement.
(c) If (i) Buyer has not terminated this Agreement as
permitted by and in accordance with the provisions herein
contained and (ii) title to the Property has not closed under
this Agreement because of the inability of Buyer to close under
this Agreement, or because of a default by Buyer under this
Agreement, Seller shall retain the Deposit, plus all interest
earned thereon.
23. Termination, Default and Remedies. (a) If this
Agreement is terminated by either party pursuant to a right
expressly given it to do so hereunder (herein referred to as a
"Permitted Termination"), except for a termination by Seller
because of the default of Buyer, the Deposit together with all
interest earned thereon shall immediately be returned to Buyer,
less any amount to be paid to Seller pursuant to Section 16, upon
being notified in writing by Buyer and Seller (i) of the amount,
if any, to be paid to Seller pursuant to Section 16 and (ii) that
Buyer has returned to Seller all documents provided by Seller or
Broker to Buyer pursuant to this Agreement and the
Confidentiality Agreement
(b) Default by Seller. (i) Seller shall be in default
hereunder upon the occurrence of any one or more of the following
events:
(A) any of Sellers' warranties or representations set
forth herein are untrue or inaccurate in any material
respect; or
(B) Seller shall fail, in any material way, to meet,
comply with or perform any covenant, agreement or obligation
on its part required, within the time limits and in the
manner required in this Agreement, for any reason other than
a Permitted Termination.
(ii) In the event of a default by Seller hereunder, Buyer
may, at Buyer's option, either:
(A) terminate this Agreement by written notice
delivered to Seller at or prior to the Closing, in which
event the Deposit and all interest earned thereon shall be
paid to Buyer;
(B) enforce specific performance of this Agreement
against Seller (it being understood, however, that should an
expenditure in excess of $250,000 be required to be made in
order to remedy any such default, Seller shall be obligated
to expend no more that $250,000, and, in any event, should
such default not be remedied within 6 months after the
scheduled Closing Date, Buyer's sole remedy shall be under
either Section 23(b)(ii)(A) or 23(b)(ii)(C)); or
(C) pursue an action for damages (it being understood,
however, that the sole measure of damages in any such action
shall be recovery of Fees-And-Costs expended by Buyer in its
Due Diligence Review, such Fees-And-Costs not to exceed, in
any event, $250,000).
(iii) In the event of a default by Seller in the covenant
set forth in Section 17a(j) hereof (excluding, however,
involuntary liens or encumbrances), Buyer may, at Buyer's option,
either:
(A) enforce specific performance of this Agreement
against Seller, without any limitation on the expenditure by
Seller to cure such voluntary lien or encumbrance; or
(B) pursue Buyer's remedies under Section 23(b)(ii)(A)
or 23(b)(ii)(C).
(c) Default by Buyer. (i) Buyer shall be in default
hereunder upon the occurrence of any one or more of the following
events:
(A) any of Buyer's warranties or representations set
forth herein are untrue or inaccurate in any material
respect; or
(B) Buyer shall fail, in any material way, to meet,
comply with or perform any covenant, agreement or obligation
on its part required, within the time limits and in the
manner required in this Agreement, for any reason other than
a Permitted Termination.
(ii) In the event of a default by Buyer hereunder, Seller
may as its sole remedy terminate this Agreement by notice to
Buyer and retain the Deposit together with all interest earned
thereon, it being agreed between Buyer and Seller that such sum
shall be liquidated damages for a default by Buyer hereunder
because of the difficulty, inconvenience and uncertainty of
ascertaining actual damages for such default.
(d) Notice and Opportunity to Cure. In the event that
either party is in default under the terms of this Agreement, the
non-defaulting party shall give the defaulting party written
notice specifically setting forth such default, and the
defaulting party shall have five (5) business days to cure such
default. If the defaulting party fails to cure the default
within such five (5) business day period, the non-defaulting
party shall have the right to pursue its remedies as set forth in
this Section 23.
24. Assignment. This Agreement shall not be assigned by
either party hereto without the prior written consent of the
other party; provided, however, that Buyer may assign its rights
and obligations under this Agreement to an entity in which Buyer
or its principals are the principals, if such other entity timely
complies with Section 17b(a) and (b) and Buyer remains liable
under this Agreement.
25. Supplemental Documents. The parties agree to execute
all documents which may reasonably be required to effectuate the
terms and provisions of this Agreement.
26. Definitions. (a) In this Agreement, and in the
Exhibits and Schedules attached hereto (unless expressly defined
otherwise), the following words and phrases shall have the
following meanings:
"Amendment" means an amendment, renewal, supplement,
modification, expansion, restatement, extension, or any other
change or revision.
"Encumbrance" means any and every mortgage, security
agreement, security interest, lien, levy, lease, pledge,
hypothecation, charge, claim, license, judgment, covenant,
easement, and/or any other encumbrance or restriction of any and
every kind whatsoever.
"EntelCom System" means an enhanced telecommunications
system made available for lease by Seller to the Tenants in the
Property providing the services more particularly described on
Exhibit "N" attached hereto.
"Fees-And-Costs" means reasonable fees, charges and expenses
of attorneys, architects, engineers, expert witnesses,
consultants and other Persons, and all other charges due any of
the foregoing (including costs of photographic reproduction, word
processing, transcripts and printing of briefs and records on
appeal).
"Government Entity" means the United States, the State of
Texas, the City of Austin, Texas, any other State in which a
party to this Agreement is incorporated and any municipality or
other political subdivision of any of the foregoing, and any
agency, authority, department, court, commission or other legal
entity of any of the foregoing asserting jurisdiction over the
Property or any portion thereof or over any of the operations of
businesses located within the Property.
"Hazardous Materials" means (a) asbestos, radon gas, urea
formaldehyde foam insulation, transformers or other equipment
which contain dielectric fluid containing levels of
polychlorinated byphenyls in excess of federal or Texas safety
guidelines, whichever are more stringent, (b) any solid or liquid
wastes (including hazardous wastes), hazardous air pollutants,
hazardous substances, hazardous chemical substances and mixtures,
toxic substances, pollutants and contaminants, as such terms are
defined in the National Environmental Policy Act (42 U.S.C.
Section 4321 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
seq.), as amended by the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), as amended by the Hazardous and
Solid Wastes Amendments of 1984, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Clean
Water Act (33 U.S.C. Section 1321 et seq.), the Clean Air Act,
the Occupational Safety and Health Act (29 U.S.C. Section 651 et
seq.), and laws of any other Government Entity having
jurisdiction over the Property regulating any of the foregoing
matters or items, as such laws and regulations may be amended
and/or supplemented from time to time, and (c) any other chemical
material or substance, exposure to which is prohibited, or, to
the extent limited or regulated, limited or regulated by any
Government Entity.
"Legal Proceeding" means any action, litigation,
arbitration, administrative proceedings, and other legal or
equitable proceeding of any kind.
"Person" means an individual person, a corporation,
partnership, trust, joint venture, proprietorship, estate,
association, Government Entity or other incorporated or
unincorporated enterprise, entity or organization of any kind.
"Seller's knowledge" means the current actual knowledge of
the officers and directors of Seller and FIC Property Management,
Inc. ("Seller's Knowledgeable Parties") and does not include
constructive knowledge. No examination, inspection or research
is required or implied, nor is there any obligation that any of
Seller's Knowledgeable Parties make any special inquiry.
However, the phrase does obligate Seller to make a reasonable
inquiry of Seller's Knowledgeable Parties to determine if any of
them have current actual knowledge relating to any of the
representations or warranties made by Seller in this Agreement.
"Tenant" means a tenant, subtenant, undertenant or occupant
under a Lease.
"Violation" means any note or notice of any violation of law
noted in or issued by any Government Entity against or with
respect to the Property.
(b) Unless specified to the contrary, references to
Sections, Exhibits and Schedules mean the particular Section,
Exhibit or Schedule in or to this Agreement, all of which
Exhibits and Schedules are made a part hereof for all purposes
the same as if set forth herein verbatim; it being expressly
understood that if any Exhibit attached hereto which is to be
executed and delivered at Closing contains blanks, the same shall
be completed correctly and in accordance with the terms and
provisions contained herein and as contemplated herein prior to
or at the time of execution and delivery thereof.
(c) Wherever used in this Agreement;
(i) the words "include" or "including" shall be
construed as incorporating, also, "but not limited to" or
"without limitation";
(ii) the word "day" means a calendar day unless
otherwise specified;
(iii) the word "party" means each and every Person on
whose behalf this Agreement has been signed at the end of
this Agreement;
(iv) the word "law" (or "laws") means any statute,
ordinance, resolution, regulation, code, rule, order,
decree, judgment, injunction, mandate or other legally
binding requirement of a Government Entity; and
(v) each reference to the Property shall be deemed to
include "and/or any portion thereof".
27. Notices. Any notice or demand provided for or given
pursuant to this Agreement shall be in writing and served on the
parties at the addresses listed below. Any notice shall be
either (a) personally delivered to the address set forth below,
in which case it shall be deemed delivered on the date of
delivery to the addressee; (b) sent by registered or certified
mail/return receipt requested, in which case it shall be deemed
delivered three (3) business days after deposited in the U.S.
Mail; (c) sent by a nationally recognized overnight courier, in
which case it shall be deemed delivered one (1) business day
after deposit with such courier; or (d) sent by
telecommunications ("Fax") in which case it shall be deemed
delivered on the day sent, provided an original is received by
the addressee by a nationally recognized overnight courier within
one (1) business day of the Fax. The addresses and Fax number
listed herein may be changed by written notice to the other
parties, provided, however, that no notice of a change of address
or Fax number shall be effective until date of delivery of such
notice. Copies of notice are for informational purposes only and
a failure to give or receive copies of any notice shall not be
deemed a failure to give notice. For purposes of notice, the
addresses of the parties shall be as follows:
If to Seller: Investors Life Insurance Company of
North America
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Sneed, Vine, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: Omni Congress Joint Venture
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attorney at Law
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
28. Section Headings. The section headings are inserted
solely for the convenience of reference and shall not affect the
construction or interpretation of this Agreement.
29. Entire Contract. This Agreement constitutes the entire
contract between the parties hereto and there are no other
understandings, oral or written, relating to the subject matter
hereof, other than the Confidentiality Agreement, which continues
in effect. This Agreement may not be changed, modified or
amended, in whole or in part, except in writing, signed by all
parties.
30. Invalid Provisions. If any one or more of the
provisions of this Agreement, or the applicability or any such
provision to a specific situation, shall be held invalid or
unenforceable, such provision shall be modified to the minimum
extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other
provisions of this Agreement and all other applications of any
such provision shall not be affected thereby.
31. Construction. The words "herein", "hereof",
"hereunder" and other similar compounds of the words "here" when
used in this Agreement shall refer to the entire Agreement and
not to any particular provision or section. If the last day of
any time period stated herein shall fall on a Saturday, Sunday or
legal holiday, then the duration of such time period shall be
extended so that it shall end on the next succeeding day which is
not a Saturday, Sunday or legal holiday. Whenever used in this
Agreement, the singular shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all
genders. Marginal notes are inserted for convenience only and
shall not form part of the text of this Agreement.
32. Covenant Not to Record. Buyer will not record this
Agreement. An attempted recording of this Agreement shall
constitute a default hereunder on the part of Buyer.
33. Choice of Law. This Agreement shall be construed in
accordance with and enforceable under the laws of Texas and shall
be fully performable in ▇▇▇▇▇▇ County, Texas.
34. Binding Effect. Subject to the provisions of Section
24, this Agreement and terms and conditions shall extend to and
be binding upon the parties hereto and their successors and
assigns.
35. Counterparts and Copies. This Agreement may be
executed in several counterparts, which when taken together shall
be deemed to be an original. Each executed copy shall be deemed
an original.
36. Effective Date. The date of formation of this
Agreement (herein called the "Effective Date", "date of this
Agreement" or "date hereof") shall for all purposes be September
5, 1995.
WITNESS the due execution hereof as of the day and year set
forth below.
SELLER:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date of Execution: 9-1-95
BUYER:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇: Managing Venturer
Date of Execution: 9-1-95
RECEIPT OF DEPOSIT
AND AGREEMENT OF ESCROW AGENT
Escrow Agent hereby acknowledges the receipt of the
following:
(i) one (1) fully signed and executed copy of
this Agreement; and
(ii) the Deposit in the amount of $500,000.00.
Escrow Agent hereby agrees to act as Escrow Agent under and
pursuant to the terms of this Agreement.
ESCROW AGENT:
HERITAGE TITLE COMPANY OF
AUSTIN, INC.
By:/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Date of Execution: 9-5-95
Exhibit "A"
METES AND BOUNDS DESCRIPTION OF LAND
Exhibit "B"
TANGIBLE PERSONAL PROPERTY
(to be delivered by Delivery Date)
EXHIBIT "C-1"
AUSTIN CENTRE
OFFICE LEASES
(to be delivered by Delivery Date)
EXHIBIT "C-2"
AUSTIN CENTRE
RESIDENTIAL LEASES
(to be delivered by Delivery Date)
EXHIBIT "C-3"
AUSTIN CENTRE
ENTELCOM LEASES
(to be delivered by Delivery Date)
Exhibit "D"
PERMITTED EXCEPTIONS
1. Taxes for 1995 and subsequent years.
2. Terms, conditions and stipulations set out in City of Austin
License Agreement dated May 6, 1986, recorded in Volume
9824, Page 225 in the Real Property Records of ▇▇▇▇▇▇
County, Texas, said Agreement having been affected by
Assignment and Assumption of License Agreement dated August
22, 1991, by and between Texas AP, Inc. and Investors Life
Insurance Company of North America, recorded in Volume
11506, Page 188 of the Real Property Records of ▇▇▇▇▇▇
County, Texas (pertains to rights and obligations to
maintain landscaping in the right-of-way).
3. Cable Television Installation Agreement dated October 2,
1992, recorded in Volume 11791, Page 816 of the Real
Property Records of ▇▇▇▇▇▇ County, Texas.
4. Rights of tenants in possession under written leases or
occupancy agreements.
5. Improvements consisting of steps, vault entrances with gas
meter and water meter, thresholds, vents, lighted fabric
banners, pump test connection and fire stand pipes situated
outside of property boundary, as shown on survey dated July
15, 1991 and revised on July 30, 1991, prepared by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, a Registered Professional Land Surveyor No. 2508.
Exhibit "E"
Grantee's Address:
Omni Congress Joint Venture
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SPECIAL WARRANTY DEED
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ▇▇▇▇▇▇
THAT INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a
Washington corporation ("Grantor"), for and in consideration of
the sum of Ten Dollars ($10.00) cash and other good and valuable
consideration paid by OMNI CONGRESS JOINT VENTURE, a Texas joint
venture ("Grantee"), whose address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, HAS GRANTED, BARGAINED, SOLD and
CONVEYED, and by these present DOES GRANT, BARGAIN, SELL and
CONVEY unto Grantee all that certain land situated in ▇▇▇▇▇▇
County, Texas, and described on Exhibit "A" which is attached
hereto and incorporated herein by reference for all purposes,
together with all appurtenances thereon or in anywise
appertaining thereto and all buildings, structures, fixtures and
improvements located thereon (said land, improvements and
appurtenances being herein together referred to as the
"Property").
This conveyance is made subject to the Permitted Exceptions
set forth in Exhibit "B" hereto.
TO HAVE AND TO HOLD the Property unto Grantee, and Grantee's
successors and assigns forever, and Grantor does hereby bind
Grantor, and Grantor's successors and assigns to WARRANT and
FOREVER DEFEND, all and singular the Property unto Grantee and
Grantee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise.
For the same consideration, Grantor hereby GRANTS, BARGAINS,
SELLS and CONVEYS, without warranty, express or implied, all
interest, if any, of Grantor in (i) strips or gores, if any,
between the Property and abutting properties and (ii) any
easements, covenants and other rights appurtenant thereto and
(iii) any land lying in the bed of any street, road, avenue or
alley, open or closed, in front of or adjoining the Property, to
the center line thereof.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KING OR CHARACTER WHATSOEVER, WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO: (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY;(C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH GRANTEE MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY
THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCE OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY,
INCLUDING, BUT NOT LIMITED TO, ANY STATE OR FEDERAL ENVIRONMENTAL
LAW, RULE OR REGULATION; (E) THE HABITABILITY, MERCHANTABILITY OR
FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE; OR (F) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY. EXCEPT AS SET FORTH
IN THE AGREEMENT OF SALE DATED September 5, 1995 FOR THE SALE OF
THE PROPERTY, GRANTEE HEREBY WAIVES ANY SUCH REPRESENTATION,
WARRANTY, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES.
EXECUTED this day of , 1995.
GRANTOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA, a Washington
corporation
By:
Title:
GRANTEE:
OMNI CONGRESS JOINT VENTURE,
a Texas joint venture
By:
Title:
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on ,
1995, by , of Investors
Life Insurance Company of North America, a Washington
corporation, on behalf of said corporation.
Notary Public in and for the State
(S E A L) of Texas
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on ,
1995, by , of Omni
Congress Joint Venture, a Texas joint venture, on behalf of said
joint venture.
Notary Public in and for the State
(S E A L) of Texas
Exhibit "F"
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment")
is made as of , 1995, by and between INVESTORS
LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington corporation
("Assignor"), whose mailing address is ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and OMNI CONGRESS JOINT VENTURE, a Texas
joint venture ("Assignee"), whose mailing address is ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Introductory Provisions:
The following provisions form a part of this
Assignment:
A. Assignor or Assignor's predecessor in title heretofore
entered into certain leases (the "Leases") with tenants covering
office space, retail space, apartment units, hotel rooms and
other hotel facilities and the use of a telephone system all
located in a certain multi-use complex known as Austin Centre,
located on certain land situated in ▇▇▇▇▇▇ County, Texas (the
"Property") and described on Exhibit "A" which is attached hereto
and incorporated herein by reference for all purposes.
B. Attached hereto as Exhibit "B" and incorporated herein
by reference for all purposes is a true and correct copy of a
list of the Leases presently in force.
C. Assignee desires to purchase from Assignor, and
Assignor desires to sell and assign to Assignee, all of
Assignor's interest in the Leases and all of the rights, benefits
and privileges of the lessor thereunder.
THEREFORE, in consideration of the foregoing and the
agreements and covenants herein set forth, together with the sum
of Ten Dollars ($10.00) and other good and valuable consideration
this day paid and delivered by Assignee to Assignor, the receipt
and sufficiency of all of which are hereby acknowledged by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER unto Assignee any and all of Assignor's right, title and
interest in and to all Leases pertaining to the Property, and all
of the rights, benefits and privileges of the lessor thereunder
including without limitation those with respect to all security
deposits, prepaid rentals and reservation deposits made under
Leases and not returned to tenants, but subject to all terms,
conditions, reservations and limitations set forth in the Leases
(all such Leases, properties, rights and interests, subject as
aforesaid, being hereinafter collectively referred to as the
"Assigned Leases").
This Assignment is made subject to the Permitted
Exceptions set forth in Exhibit "C" hereto.
TO HAVE AND TO HOLD all and singular the Assigned
Leases unto Assignee, and Assignee's successors, and assigns
forever, and Grantor does hereby bind Grantor, and Grantor's
successors and assigns to WARRANT and FOREVER DEFEND, all and
singular the Property unto Grantee and Grantee's successors and
assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through or under Grantor,
but not otherwise.
1. Words and phrases not defined herein shall have the
meanings attributed to them in that certain Agreement of Sale
(herein so called) dated September 5, 1995, executed by Assignor
and Assignee covering the sale of the Property from Assignor to
Assignee.
2. Assignor hereby agrees that, subject to the provisions
of Section 5 of the Agreement of Sale, that it shall perform all
of the terms, covenants and conditions of the Leases on the part
of the lessor therein required to be performed prior to the date
hereof (but not those required to be discharged or performed from
and after the date thereof).
3. By accepting this Assignment of Leases and by its
execution hereof, Assignee hereby assumes and agrees to perform
all of the terms, covenants and conditions of the Leases on the
part of the lessor therein required to be performed, from and
after the date hereof (but not those required to be performed
prior thereto, except as specifically provided in Section 5 of
the Agreement of Sale).
4. Assignee hereby agrees to indemnify and hold harmless
Assignor from and against and all loss, cost or expense
(including, without limitation, Fees and Costs) resulting by
reason of Assignee's failure to perform any of the obligations
assumed by Assignee hereunder. Except for the Physical
Conditions Exception as described in Section 21(a) of the
Agreement of Sale and the matters described in Section 5 of the
Agreement of Sale, Assignor hereby agrees to indemnify and hold
harmless Assignee from and against any and all loss, cost or
expense (including, without limitation, Fees and Costs) resulting
by reason of the failure of Assignor to perform any of the
obligations of the lessor under any of the Leases prior to the
date hereof.
5. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
6. This Assignment may only be modified, altered, amended,
or terminated by the written agreement of Assignor and Assignee.
7. Any notice, request, demand, statement or consent made
hereunder or in connection herewith to any party shall be in
writing and shall be sent to the addresses and in the manner
specified in the Agreement of Sale.
8. If any term, covenant or condition of this Assignment
shall be held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such
provision.
9. This Assignment shall be governed by and construed
under the laws of the State of Texas without regard to the
principles of conflicts of law.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment as of the date first above written.
ASSIGNOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
a Washington corporation
By:
Title:
ASSIGNEE:
OMNI CONGRESS JOINT VENTURE
a Texas joint venture
By:
Title:
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on ,
1995, by , of
Investors Life Insurance Company of North America, a Washington
corporation, on behalf of said corporation.
(S E A L)
Notary Public in and for the State
of Texas
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on ,
1995, by , of Omni Congress Joint
Venture, a , on behalf of said
.
(SEAL)
Notary Public in and for the State
of Texas
Exhibit "G"
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE (the "▇▇▇▇ of Sale") is executed by
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington
corporation ("Assignor") to and for the benefit of OMNI CONGRESS
JOINT VENTURE, a Texas joint venture ("Assignee"), whose mailing
address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Introductory Provisions:
The following provisions form a part of this ▇▇▇▇ of Sale:
A. Assignor and Assignee are parties to that certain
Agreement of Sale dated September 5, 1995 (the "Agreement of
Sale"), which provides, among other things, for the sale by
Assignor to Assignee of that certain land (the "Land") lying and
being situated in ▇▇▇▇▇▇ County, Texas, and described on Exhibit
"A" which is attached hereto and incorporated herein by reference
for all purposes, together with the multi-use complex located on
the Land and commonly known as Austin Centre (the said Land and
the improvements thereon being herein referred to as the
"Property"), and the execution of this ▇▇▇▇ of Sale.
B. It is the desire of Assignor hereby to sell, assign,
transfer and convey to Assignee all of Assignor's rights, titles
and interests in the below described items affixed or attached
to, or placed or situated upon, or used or acquired in any way
whatsoever in connection with the complete and comfortable use,
enjoyment, occupancy or operation of the Property, except those
not owned by Assignor.
THEREFORE, in consideration of the foregoing and Ten
Dollars ($1.00) and other good and valuable consideration in hand
paid by Assignee to Assignor, the receipt and sufficiency of
which are hereby acknowledged and confessed by Assignor, Assignor
does hereby ASSIGN, TRANSFER, SET OVER and DELIVER to Assignee
all of the following (the "Assigned Properties"):
a. any and all of Assignor's right, title and
interest in and to all fixtures, furniture, furnishings, working
supplies and articles of personal property constructed, erected,
affixed to, attached to, installed or placed in or upon and used
in connection with the occupancy and operation of the Property
including, but not limited to:(i) any and all, if any, mechanical,
elecrtical, heating, air-conditioning, plumbing, sprinkler,
lighting, ventilating and cooling systems, together with their
respective appurtenant gas and electric ranges, refrigerators,
engines, motors, generators, pipes, wiring and other apparatus,
and all lighting fixtures, doors, cabinets, partitions, elevators,
electric motors, pumps office furniture and equipment,
partitions, vaults, safes, electrical, fire prevention and
extinguishing equipment, radio, television, and public address
and amplifying systems, equipment, parts and supplies, chairs,
tables, beds, bedsprings, mattresses, couches, lamps, waste
baskets, desks, silverware, utensils, table and bed linen,
towels, blankets, dishes, glassware, mirrors, carpets, rugs,
other floor coverings, curtains, draperies, pictures, radio and
television sets, stationery and office supplies, pianos, and all
musical instruments, bars and bar equipment, kitchen utensils,
and other furniture and furnishings for all lobbies, ballrooms,
dining rooms, bedrooms, guest rooms, baths and other private and
public rooms, and the furniture, typewriters, furnishings,
equipment, tools, materials and supplies in all storerooms and
offices; and (ii) those items more particularly described on
Exhibit "B" which is attached hereto and incorporated by
reference for all purposes;
b. all goodwill owned by Assignor related to the
operation of the Property, including, without limitation any and
all of Seller's right, title and interest in and to (i) the
telephone numbers and listings of the Property or any portion
thereof, (ii) any and all, if any, trade names, trademarks,
service marks, logos and all copyrights used exclusively in
connection with the Property or any portion thereof, except those
belonging specifically to Omni Hotels Management Corporation or
its affiliates or any tenants of the Property, and (iii) any and
all, if any, video tapes, films, brochures and other advertising
and promotion materials of any kind or nature owned by Assignor
and used in connection with the advertising of the Property or
any portion thereof;
c. all books, records, tenant, guest and customer
lists for the Property or any portion thereof owned by Assignor
and in the possession of Assignor or any of the Managers,
together with any and all, if any, files, reports, surveys,
studies, projections, budgets and strategic plans prepared for
Assignor in connection solely with the operation, maintenance and
management of the Property or any portion thereof and in the
possession of Assignor or any of the Managers;
d. any and all of Seller's right, title and interest
in and to any and all, if any, architects' and engineers'
drawings, plans, specifications, models and work product,
studies, surveys and other materials developed in connection with
the construction, repair and maintenance of the Property or any
portion thereof owned by Assignor and in the possession of
Assignor or any of the Managers of the Property or any portion
thereof; and
e. all meat, fish and poultry inventories on hand at
and other food and non-alcoholic beverage inventories at, and for
use at, the Property and owned by Seller at 12:01 a.m. on the
date hereof.
This ▇▇▇▇ of Sale is made subject to the Permitted
Exceptions set forth in Exhibit "C" hereto.
TO HAVE AND TO HOLD the Assigned Properties unto
Assignee, and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor, Assignor's successor and
assigns to WARRANT and FOREVER DEFEND, all and singular the
Assigned Properties unto Assignee and Assignee's successors and
assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through or under
Assignor, but not otherwise.
The Assigned Properties are in a used condition, and
Assignor is neither a manufacturer nor a distributor of, nor
dealer or merchant in, the Assigned Properties.
ASSIGNEE ACKNOWLEDGES AND AGREES THAT ASSIGNOR HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES, 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 THE ASSIGNED PROPERTIES, INCLUDING,
BUT NOT LIMITED TO: (A) THE NATURE, QUALITY OR CONDITION OF THE
ASSIGNED PROPERTIES; (B) THE INCOME TO BE DERIVED FROM THE
ASSIGNED PROPERTIES; (C) THE SUITABILITY OF THE ASSIGNED
PROPERTIES FOR ANY AND ALL ACTIVITIES AND USES WHICH ASSIGNEE MAY
CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE ASSIGNED
PROPERTIES OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATION OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY,
INCLUDING, BUT NOT LIMITED TO, ANY STATE OR FEDERAL ENVIRONMENTAL
LAW, RULE OR REGULATION; (E) THE HABITABILITY, MERCHANTABILITY
OR FITNESS OF THE ASSIGNED PROPERTIES FOR A PARTICULAR PURPOSE;
OR (F) ANY OTHER MATTER WITH RESPECT TO THE ASSIGNED PROPERTIES.
EXCEPT AS SET FORTH IN THE AGREEMENT OF SALE DATED September 5,
1995 FOR THE SALE OF THE PROPERTY, ASSIGNEE HEREBY WAIVES ANY
SUCH REPRESENTATION, WARRANTY, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ASSIGNOR IS
CONVEYING THE ASSIGNED PROPERTIES TO ASSIGNEE "AS IS", "WHERE
IS", AND WITH ALL FAULTS AND SPECIFICALLY AND EXPRESSLY WITHOUT
ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR
IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON
BEHALF OF THE ASSIGNOR
1. Words and phrases defined in the Agreement of Sale
shall have the same meaning herein.
2. If any term, covenant or condition of this ▇▇▇▇ of Sale
shall be held to be invalid, illegal or unenforceable in any
respect, this ▇▇▇▇ of Sale shall be construed without such
provision.
3. This ▇▇▇▇ of Sale shall be governed by and construed
under the laws of the State of Texas without regard to the
principles of conflicts of law.
EXECUTED this day of , 1995.
ASSIGNOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
a Washington corporation
By:
Title:
ASSIGNEE:
OMNI CONGRESS JOINT VENTURE
a Texas joint venture
By:
Title:
Exhibit "H"
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
AND THE SAINT DAVID'S LEASE
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND THE
SAINT DAVID'S LEASE (the "Assignment") is made as of
, 1995, by and between INVESTORS LIFE INSURANCE COMPANY OF NORTH
AMERICA, a Washington corporation ("Assignor"), whose mailing
address is ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and OMNI
CONGRESS JOINT VENTURE, a Texas joint venture ("Assignee"), whose
mailing address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
Introductory Provisions:
A. Assignor and Assignee are parties to that certain
Agreement of Sale dated September 5, 1995 (the "Agreement of
Sale"), which provides, among other things, for the sale by
Assignor to Assignee of that certain tract of land located in
▇▇▇▇▇▇ County, Texas, as more particularly described on Exhibit
"A" attached hereto and made part hereof for all purposes,
together with the multi-use complex located thereon more commonly
known as Austin Centre (the "Property"), and the execution and
delivery of this Assignment.
B. Assignor has certain rights, title and interest in
and to:
1. the contracts or agreements, and all Amendments
thereof, for construction work, materials, or equipment or for
architectural services, professional engineering services, or
other services, which entitles the Person furnishing the same to
file a lien against the Property and which has a term expiring
after the date hereof or under which any amount remains due and
owing to the applicable Person, as more particularly described on
Exhibit "B" attached hereto and made part hereof for all purposes
(collectively the "Construction Contracts");
2. the contracts or agreements (other than the
Construction Contracts) and Amendments thereof, for the
furnishing of management, maintenance, repairs, supplies,
equipment, or other services to the Property, including but not
limited to, the equipment leases for the Entelcom System, which
have a term expiring after the date hereof, as more particularly
described on Exhibit "C" attached hereto (collectively, the
"Service Contracts"); and
3. that certain parking lease agreement (the "Saint
David's Lease"), dated April 1, 1992, between Protestant
Episcopal Church Council of the Diocese of Texas and St. David's
Episcopal Church, collectively as landlord (the "Saint David's
Landlord") and Assignor, as tenant, providing for additional
parking space for the use of the Property.
C. The Agreement of Sale requires Assignor to assign
to Assignee any and all of Assignor's right, title and interest
in and to the Construction Contracts, Service Contracts, and
Saint David's Lease and requires Assignee to assume Assignor's
obligations under the Construction Contracts, Service Contracts
and Saint David's Lease.
THEREFORE, in consideration of the foregoing and the
agreements and covenants herein set forth, together with the sum
of Ten Dollars ($10.00) and other good and valuable consideration
this day paid and delivered by Assignee to Assignor, the receipt
and sufficiency of all of which are hereby acknowledged by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER unto Assignee any and all of Assignor's right, title and
interest in and to the Construction Contracts, the Service
Contracts, the Saint David's Lease and any and all of the rights,
benefits and privileges of Assignor thereunder (collectively, the
"Assigned Agreements").
This Assignment is made subject to the Permitted
Exceptions set forth in Exhibit "A" attached hereto.
TO HAVE AND TO HOLD all and singular the Assigned
Agreements unto Assignee, and Assignee's successors, and assigns
forever.
1. Words and phrases defined in the Agreement of Sale
shall have the same meaning herein.
2. Assignor agrees that it shall be responsible to any
contractors and vendors under the Construction Contracts and
Service Contracts and the Saint David's Landlord under the Saint
David's Lease for the discharge or performance of any duties or
obligations to be performed or discharged by Assignor thereunder
prior to the date hereof, but Assignor shall not be responsible
to any contractors or vendors under the Construction Contracts
and Service Contracts or the Saint David's Landlord under the
Saint David's Lease for the discharge or performance of such
duties or obligations to be performed or discharged by Assignor
thereunder from and after the date hereof.
3. Assignee hereby assumes and agrees to perform all of
the terms, covenants and conditions of the Assigned Agreements on
the part of Assignor required to be performed thereunder, from
and after the date hereof (but not those required to be performed
prior thereto).
4. Assignee hereby agrees to indemnify and hold harmless
Assignor from and against any and all loss, liability, cost,
claim, damage or expense (including Fees and Costs) incurred to
enforce any rights and/or secure any remedies under this
Assignment resulting by reason of the failure of Assignee to
perform its obligations under the Assigned Agreements as
specified in this Assignment and/or Assignee's failure to perform
its obligations under this Assignment.
5. Except as to the Physical Conditions Exception
described in Section 21(a) of the Agreement of Sale, Assignor
hereby agrees to indemnify and hold harmless Assignee from and
against any and all loss, liability, cost, claim, damage or
expense (including Fees and Costs) incurred to enforce any rights
and/or secure any remedies under this Assignment resulting by
reason of the failure of Assignor to perform its obligations
under the Assigned Agreements as specified in this Assignment
and/or Assignor's failure to perform its obligations under this
Assignment.
6. Each party shall sign and give such notices and
consents as shall be necessary to confirm the provisions of this
Assignment to any other Persons having rights or obligations
under the Assigned Agreements, as the other may request from time
to time, and each party shall execute and deliver to the other
such further instruments, documents and agreements as the other
may reasonably require to make this Assignment effective.
7. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
8. This Assignment may only be modified, altered, amended,
or terminated by the written agreement of Assignor and Assignee.
9. Any notice, request, demand, statement or consent made
hereunder or in connection herewith to any party shall be in
writing and shall be sent to the addresses and in the manner
specified in the Agreement of Sale.
10. In any term, covenant or condition of this Assignment
shall be held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such
provisions.
11. This Assignment shall be governed by and construed
under the laws of the State of Texas without regard to principles
of conflicts of law.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment as of the day and year first above written.
ASSIGNOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
a Washington corporation
By:
Title:
ASSIGNEE:
OMNI CONGRESS JOINT VENTURE
a Texas joint venture
By:
Title:
Exhibit "I"
ASSIGNMENT AND ASSUMPTION OF LICENSES AND PERMITS
THIS ASSIGNMENT AND ASSUMPTION OF LICENSES AND PERMITS (the
"Assignment") is made as of , 1995, by
and between INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a
Washington corporation ("Assignor"), whose mailing address is ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and OMNI CONGRESS JOINT
VENTURE, a Texas joint venture ("Assignee"), whose mailing
address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Introductory Provisions:
The following provisions form a part of this Assignment:
A. Assignor and Assignee are parties to that certain
Agreement of Sale dated September 5, 1995 (the "Agreement of
Sale") which provides, among other things, for the sale by
Assignor to Assignee of that certain tract of land located in
▇▇▇▇▇▇ County, Texas, as more particularly described on Exhibit
"A" attached hereto and made part hereof for all purposes,
together with the multi-use complex located thereon more commonly
known as Austin Centre (the "Property"), and the execution and
delivery of this Assignment.
B. Assignor has certain rights, title and interest in and
to the building and other permits, certificates, licenses,
franchises, authorizations and approvals granted by Government
Entities necessary or useful in connection with the Property
and/or the operation of the Improvements or any part thereof, as
more particularly described on Exhibit "B" attached hereto and
made a part hereof for all purposes (the "Licenses and Permits").
C. The Agreement of Sale requires Assignor to assign to
Assignee any and all of Assignor's right, title and interest in
and to the Licenses and Permits and requires Assignee to assume
Assignor's obligations under the Licenses and Permits.
THEREFORE, in consideration of the foregoing and the
agreements and covenants herein set forth, together with the sum
of Ten Dollars ($10.00) and other good and valuable consideration
this day paid and delivered by Assignee to Assignor, the receipt
and sufficiency of all of which are hereby acknowledged by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER unto Assignee any and all of Assignor's right, title and
interest in and to the Licenses and Permits, excluding the Liquor
Licenses, and any and all of the rights, benefits and privileges
of Assignor thereunder.
This Assignment is made subject to the Permitted Exceptions
set forth in Exhibit "C" attached hereto.
TO HAVE AND TO HOLD all and singular the Licenses and
Permits unto Assignee, and Assignee's successors, and assigns
forever.
1. Words and phrases defined in the Agreement of Sale
shall have the same meaning herein.
2. Assignor agrees that it shall be responsible to all
applicable Government Entities and Persons under the Licenses and
Permits for the discharge or performance of any duties or
obligations to be performed or discharged by Assignor thereunder
prior to the date hereof, but Assignor shall not be responsible
to any Government Entities or Persons under the Licenses and
Permits for the discharge or performance of such duties or
obligations to be performed or discharged by Assignor thereunder
from and after the date hereof.
3. Assignee hereby assumes and agrees to perform all of
the terms, covenants and conditions of the Licenses and Permits
on the part of Assignor required to be performed thereunder, from
and after the date hereof (but not those required to be performed
prior thereto).
4. Assignee hereby agrees to indemnify and hold harmless
Assignor from and against any and all loss, liability, cost,
claim, damage or expense (including Fees and Costs) incurred to
enforce any rights and/or secure any remedies under this
Assignment resulting by reason of the failure of Assignee to
perform its obligations under the Licenses and Permits from and
after the date hereof and/or Assignee's failure to perform its
obligations under this Assignment.
5. Except as to the Physical Conditions Exception
described in Section 21(a) of the Agreement of Sale, Assignor
hereby agrees to indemnify and hold harmless Assignee from and
against any and all loss, liability, cost, claim, damage or
expense (including Fees and Costs) incurred to enforce any rights
and/or secure any remedies under this Assignment resulting by
reason of the failure of Assignor to perform its obligations
under the Licenses and Permits prior to the date hereof and/or
Assignor's failure to perform its obligations under this
Assignment.
6. Each party shall sign and give such notices and
consents as shall be necessary to confirm the provisions of this
Assignment to any other Person having rights or obligations under
the Licenses and Permits as the other may request from time to
time, and each party shall execute and deliver to the other such
further instruments, documents and agreements as the other may
reasonably require to make this Assignment effective.
7. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
8. This Assignment may only be modified, altered, amended,
or terminated by the written agreement of Assignor and Assignee.
9. Any notice, request, demand, statement or consent made
hereunder or in connection herewith to any party shall be in
writing and shall be sent to the addresses and in the manner
specified in the Agreement of Sale.
10. If any term, covenant or condition of this Assignment
shall be held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such
provisions.
11. This Assignment shall be governed by and construed
under the laws of the State of Texas without regard to principles
of conflicts of law.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment as of the day and year first above written.
ASSIGNOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
a Washington corporation
By:
Title:
ASSIGNEE:
OMNI CONGRESS JOINT VENTURE
a Texas joint venture
By:
Title:
Exhibit "J"
ASSIGNMENT AND ASSUMPTION OF WARRANTIES AND GUARANTIES
THIS ASSIGNMENT AND ASSUMPTION OF WARRANTIES AND GUARANTIES
(the "Assignment") is made as of , 1995,
by and between INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA,
a Washington corporation ("Assignor"), whose mailing address is
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and OMNI CONGRESS
JOINT VENTURE, a ("Assignee"), whose mailing
address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Introductory Provisions:
The following provisions form a part of this Assignment:
A. Assignor and Assignee are parties to that certain
Agreement of Sale dated September 5, 1995 (the "Agreement of
Sale"), which provides, among other things, for the sale by
Assignor to Assignee of that certain tract of land located in
▇▇▇▇▇▇ County, Texas, as more particularly described on Exhibit
"A" attached hereto and made part hereof for all purposes,
together with the multi-use complex located thereon more commonly
known as Austin Centre (the "Property"), and the execution and
delivery of this Assignment.
B. Assignor has certain rights, title and interest in and
to the unexpired warranties and guaranties and payment and/or
performance bonds provided in connection with any work or
services provided under the Construction Contracts, Service
Contracts or otherwise in connection with the construction and/or
operation of the Property, as more particularly described on
Exhibit "B" attached hereto and made a part hereof for all
purposes (the "Warranties and Guaranties").
C. The Agreement of Sale requires Assignor to assign to
Assignee any and all of Assignor's right, title and interest in
and to the Warranties and Guaranties and requires Assignee to
assume Assignor's obligations under the Warranties and
Guaranties.
THEREFORE, in consideration of the foregoing and the
agreements and covenants herein set forth, together with the sum
of Ten Dollars ($10.00) and other good and valuable consideration
this day paid and delivered by Assignee to Assignor, the receipt
and sufficiency of all of which are hereby acknowledged by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER unto Assignee any and all of Assignor's right, title and
interest in and to the Warranties and Guaranties and any and all
of the rights, benefits and privileges of Assignor thereunder.
This Assignment is made subject to the Permitted Exceptions
set forth in Exhibit "C" attached hereto.
TO HAVE AND TO HOLD all and singular the Warranties and
Guaranties unto Assignee, and Assignee's successors, and assigns
forever.
1. Words and phrases defined in the Agreement of Sale
shall have the same meaning herein.
2. Assignor agrees that it shall be responsible to all
applicable Persons under the Warranties and Guaranties for the
discharge or performance of any duties or obligations to be
performed or discharged by Assignor thereunder prior to the date
hereof, but Assignor shall not be responsible to any Persons
under the Warranties and Guaranties for the discharge or
performance of such duties or obligations to be performed or
discharged by Assignor thereunder from and after the date hereof.
3. Assignee hereby assumes and agrees to perform all of
the terms, covenants and conditions of the Warranties and
Guaranties on the part of Assignor required to be performed
thereunder, from and after the date hereof (but not those
required to be performed prior thereto).
4. Assignee hereby agrees to indemnify and hold harmless
Assignor from and against any and all loss, liability, cost,
claim, damage or expense (including Fees and costs) incurred to
enforce any rights and/or secure any remedies under this
Assignment resulting by reason of the failure of Assignee to
perform its obligations under the Warranties and Guaranties from
and after the date hereof and/or Assignee's failure to perform
its obligations under this Assignment.
5. Except as to the Physical Conditions Exception
described in Section 21(a) of the Agreement of Sale, Assignor
hereby agrees to indemnify and hold harmless Assignee from and
Against any and all loss, liability, cost, claim, damage or
expense (including Fees and Costs) incurred to enforce any rights
and/or secure any remedies under this Assignment resulting by
reason of the failure of Assignor to perform its obligations
under the Warranties and Guaranties prior to the date hereof
and/or Assignor's failure to perform its obligations under this
Assignment.
6. Each party shall sign and give such notices and
consents as shall be necessary to confirm the provisions of this
Assignment to any other Persons having rights or obligations
under the Warranties and Guaranties as the other may request from
time to time, and each party shall execute and deliver to the
other such further instruments, documents and agreements as the
other may reasonably require to make this Assignment effective.
7. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
8. This Assignment may only be modified, altered, amended,
or terminated by the written agreement of Assignor and Assignee.
9. Any notice, request, demand, statement or consent made
hereunder or in connection herewith to any party shall be in
writing and shall be sent to the addresses and in the manner
specified in the Agreement of Sale.
10. If any term, covenant or condition of this Assignment
shall be held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such
provision.
11. This Assignment shall be governed by and construed
under the laws of the State of Texas without regard to principles
of conflicts of law.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment as of the day and year first above written.
ASSIGNOR:
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
a Washington corporation
By:
Title:
ASSIGNEE:
OMNI CONGRESS JOINT VENTURE
a Texas joint venture
By:
Title:
Exhibit "K-1"
(Closing Date)
To: (Name and address of Tenant)
Re: Your space leased at Austin Centre, Austin, Texas
Gentlemen:
This is to inform you that on (Closing Date), Omni Congress
Joint Venture ("Omni Congress") purchased the Austin Centre from
Investors Life Insurance Company of North America ("Investors"),
and that as of such date Omni Congress has succeeded to the
rights and assumed the obligations of Investors as Landlord,
under your Lease for your space at Austin Centre. Omni Congress
acknowledges receipt of your security deposit in the amount of
$ which has been delivered by Investors and will hold
such security deposit in accordance with the terms of your Lease
and the provisions of the law relating to security deposits.
Kindly make all future rent payments under the Lease payable
to the order of Omni Congress Joint Venture.
All future rent payments, formal communications and all
inquiries (including any request for return of security) should
be sent to Omni Congress Joint Venture, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Very truly yours,
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:
Title:
OMNI CONGRESS JOINT VENTURE
By:
Title:
Exhibit "K-2"
(Closing Date)
To: (Name and address of Manager)
Attention:
Re: Your Management Contract with Investors Life Insurance
Company of North America in connection with Austin
Centre, Austin, Texas
Gentlemen:
This is to inform you that as of (Closing Date), Omni
Congress Joint Venture has succeeded to the rights and assumed
the obligations of Investors Life Insurance Company of North
America, as owner under the Management Contract dated
, 19 with you regarding the Austin Centre.
All future formal communications and inquiries should be
sent to Omni Congress Joint Venture, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Very truly yours,
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:
Title:
Exhibit "K-3"
(Closing Date)
To: St. David's Episcopal Church
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Business Administrator
Re: That certain Parking Lease (the "Lease") by and between
the Protestant Episcopal Church Council of the Diocese
of Texas and St. David's Episcopal Church (together,
"Landlord"), as landlord, and Investors Life Insurance
Company of North America, as tenant, dated April 1,
1992 covering the leasing to Investors Life Insurance
Company of North America of certain parking spaces (the
"Leased Premises") located in the parking garage
situated on ▇▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ of
▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas
Gentlemen:
This is to inform you that as of (Closing Date), Omni
Congress Joint Venture has succeeded to the rights and assumed
the obligations of Investors Life Insurance Company of North
America, as tenant, under the Lease.
All future formal communications and inquiries should be
sent to Omni Congress Joint Venture, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Very truly yours,
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:
Title:
Exhibit "L"
CERTIFICATE OF CORPORATE OFFICERS
I, , hereby certify that I
am now, and at all times mentioned herein have been, the duly
elected, qualified, and acting (Assistant) Secretary of Investors
Life Insurance Company of North America, a Washington corporation
(the "Corporation"), and, as such officer, I have access to the
records of the Corporation, which records of the Corporation
reflect that:
1. Resolutions. Attached hereto as Annex 1 and
incorporated herein by reference is a true and correct copy of
resolutions which have been duly adopted by the Board of
Directors of the Corporation in compliance with and not in
contravention of the articles of incorporation and bylaws of the
Corporation; none of such resolutions has been repealed or
modified in any respect, and all of such resolutions are in full
force and effect on the date hereof; and Exhibit A which is
attached hereto and incorporated herein by reference is a true
and correct copy of the Exhibit A referred to in such
resolutions.
2. Incumbency. The following named individuals are duly
elected, qualified and acting officers of the Corporation holding
the offices set forth opposite their respective names as of the
date hereof, and set forth opposite the respective titles of said
officers are their true, authentic signatures.
Name Title Specimen Signature
President
Executive Vice
President
Secretary
Assistant
Secretary
3. Articles of Incorporation and Bylaws. Attached hereto
as Annexes 2 and 3, respectively, and incorporated herein by
reference, are true and complete copies of the articles of
incorporation and the bylaws of the Corporation.
IN WITNESS WHEREOF, I have duly executed this Certificate
this day of , 1995.
(Assistant) Secretary
I, hereby certify that I am now the duly elected, qualified
and acting (Executive Vice) President of the Corporation; that
the person executing and delivering the foregoing Certificate is
the duly elected, qualified and acting officer of the Corporation
as indicated in such Certificate, and the signature set forth
above beside such person's name is such person's correct
signature; and that the certifications set forth above are true
and correct as of the date hereof.
ANNEX 1
WHEREAS, it is proposed that Investors Life Insurance
Company of North America, a Washington corporation (the
"Corporation"), sell to Omni Congress Joint Venture (the
"Purchaser"), the real estate more particularly described on
Exhibit "A" which is attached hereto and made a part hereof for
all purposes, together with the improvements located thereon
commonly known as "Austin Centre", comprised of: (a) a central
atrium, an office tower and ground level retail space with
approximately 343,664 square feet of rentable space, an
underground 667-car parking garage, and common areas located in
the atrium; (b) a hotel tower with 314 rooms commonly known as
the "Omni Austin Hotel;"; (c) approximately 68,474 square feet of
residential rental space located in the air space directly above
said hotel; and (d) all other items comprising the Property as
defined in that certain Agreement of Sale dated September 5,
1995, executed by the Corporation and Purchaser (the "Sale");
WHEREAS, the Special Warranty Deed, Assignment and
Assumption of Leases, ▇▇▇▇ of Sale and other proposed papers
evidencing, creating, governing or securing the Sale, or to be
executed in connection therewith (the "Sale Documents"), have
been submitted to, and reviewed by, the directors of the
Corporation;
NOW THEREFORE, RESOLVED, that the proposed Sale and the
proposed Sale Documents be, and each is hereby, authorized and
approved, and that the President or any Vice President of the
Corporation be, and each is hereby, authorized, empowered and
directed to execute the Sale Documents for and on behalf and in
the name of the Corporation, with such changes in the terms and
provisions thereof as the officer executing the same shall, in
his sole discretion, deem necessary or desirable and in the best
interest of the Corporation, his signature being conclusive
evidence that he did so deem any such changes to be necessary or
desirable and in the best interest of the Corporation; and
FURTHER RESOLVED, that the President or any Vice President
of the Corporation be, and each is hereby, authorized, empowered
and directed to perform all acts and do all things which he may
deem necessary or desirable to consummate the transactions
contemplated by the Sale Documents, with such modifications,
amendments or further assignments, certificates and other
agreements, instruments or documents as he, in his discretion,
may deem necessary or desirable and in the best interest of the
Corporation, his taking of any such action, for and on behalf and
in the name of the Corporation, and/or his execution and
delivery, for and on behalf and in the name of the Corporation,
of any such agreement, instrument or document to be conclusive
evidence that he did so deem the same to be necessary or
desirable and in the best interest of the Corporation; and
FURTHER RESOLVED, that the Secretary and any Assistant
Secretary of the Corporation be, and each is hereby, authorized,
empowered and directed to certify and attest any documents which
such officer may deem necessary or appropriate to consummate the
transactions contemplated by the Sale Documents; but such
certification or attestation shall not be required for the
validity of the particular documents; and
FURTHER RESOLVED, that any and all transactions by any of
the officers or representatives of the Corporation, for and on
behalf and in the name of the Corporation, with Purchaser prior
to the adoption of the foregoing resolutions, including, but not
limited to, the execution of the [application for the Sale?] and
the negotiation of the Sale and the terms of the Sale Documents,
be, and they are hereby, ratified, confirmed and approved in all
respects for all purposes; and
FURTHER RESOLVED, that the foregoing powers and
authorizations shall continue in full force and effect until
written notice of revocation has been given Purchaser and its
receipt obtained therefor.
Exhibit "M"
ESTOPPEL CERTIFICATE
Date:
Re: Lease dated , 19 ("Lease") by and
between ("Tenant") and
Investors Life Insurance Company of North America
("Landlord") for the premises located at Suite
, 701 Brazos, Austin, Texas (the "Property")
To Omni Congress Joint Venture:
The undersigned Tenant understands that Omni Congress Joint
Venture intends to acquire the Property from the Landlord. The
undersigned Tenant does hereby certify to you as follows:
A. A true and correct copy of the Lease is attached hereto
as Exhibit "A".
B. The Lease is in full force and effect and has not been
modified, supplemented or amended except as follows:
C. No dispute exists between the Landlord and Tenant,
Tenant is not in default under the Lease and the Tenant
does not consider the Landlord in default under the
Lease except as follows:
D. Tenant does not claim any offsets or credits against
rents payable under the Lease except as follows:
E. Tenant has not paid a security or other deposit with
respect to the Lease, except as follows:
F. Tenant has fully paid rent due through the month of .
G. Tenant has not paid any rentals in advance except for
the current month of , 1995.
H. There are no outstanding tenant improvements as provided
for in the Lease except as follows: .
I. Tenant has no knowledge of any leasing commissions due
to any party other than as described in the Lease,
except as follows: .
J. The primary term of the Lease expires on ,
and the Tenant has no options to renew or extend the
term of the Lease except as expressly provided in the
Lease.
By:
(printed name)
Its:
Exhibit "N"
AUSTIN CENTRE TELECOMMUNICATIONS SERVICES
Advanced Telecommunications equipment and servicing system.
EXHIBIT "O"
(Copies of Registration Agreement, Confidentiality Agreement -
Principal and Confidentiality Agreement - Agent)
September 27, 1995
Omni Congress Joint Venture
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇
Re: Agreement of Sale ("Agreement") between Investors Life
Insurance Company of North America ("Seller"), as
Seller, and Omni Congress Joint Venture ("Buyer"), as
Buyer, for the purchase and sale of Austin Centre
Dear ▇▇. ▇▇▇▇▇:
Buyer has informed Seller that Buyer is not presently in a
position to deliver to Seller the financial statements that Buyer
is required by Section 17b(d) of the Agreement to deliver by
September 25, 1995. Seller is not willing to waive this
requirement of the Agreement but would be agreeable to giving
Buyer more time to fulfill that requirement.
Seller proposes to amend the Agreement by deleting Section
17b(d) of the Agreement and inserting in lieu thereof the
following:
(d) Financial Statements. On or before October 26, 1995,
Buyer will deliver to Seller current financial statements of
Buyer and all Persons who are or will become general and limited
partners of, and other equity investors in, Buyer. If Buyer does
not deliver such financial statements to Seller by October 26,
1995, Seller shall have the right to terminate this Agreement by
notice to Buyer. If Seller exercises its right to terminate this
Agreement, such termination shall be a "Permitted Termination" as
defined by Section 23(a) of this Agreement, and the Deposit shall
be returned to Buyer in accordance with said Section 23(a).
Please indicate Buyer's agreement with the foregoing
amendment to the Agreement by signing and returning to Seller a
copy of this letter agreement, whereupon the Agreement shall be
amended by this letter agreement.
Sincerely,
INVESTORS LIFE INSURANCE
COMPANY
OF NORTH AMERICA
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
ACCEPTED AND AGREED:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Managing Venturer
October 11, 1995
Omni Congress Joint Venture
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇
Re: Agreement of Sale, as amended, ("Agreement") between
Investors Life Insurance Company of North America
("Seller"), as Seller, and Omni Congress Joint Venture
("Buyer"), as Buyer, for the purchase and sale of
Austin Centre
Dear ▇▇. ▇▇▇▇▇:
Seller proposes to amend the Agreement by deleting the third
sentence of Section 6b of the Agreement and inserting in lieu
thereof the following sentence:
On or before November 16, 1995, Seller shall deliver to
Buyer Estoppel Certificates (herein so called), in form
substantially as that set forth in Exhibit "M" attached hereto,
originally executed by at least 75% of the Tenants under the
Office Leases (collectively the "Estoppel Certificates").
Please indicate Buyer's agreement with the foregoing
amendment to the Agreement by signing and returning to Seller a
copy of this letter agreement, whereupon the Agreement shall be
amended by this letter agreement.
Sincerely,
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
ACCEPTED AND AGREED:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Managing Venturer
Third Amendment to
Agreement of Sale
This Third Amendment to Agreement of Sale ("Third
Amendment") is entered into by and between Investors Life
Insurance Company of North America ("Seller") and Omni Congress
Joint Venture ("Buyer") and is as follows:
WHEREAS, Seller and Buyer entered into an Agreement of Sale
(the "Agreement") having an effective date of September 5, 1995,
wherein Seller agreed to sell and Buyer agreed to purchase the
real property described on Exhibit "A" attached hereto and made a
part hereof for all purposes (the "Property"); and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("First Amendment") dated September
27, 1995, a copy of which is attached hereto as Exhibit "B" and
made a part hereof for all purposes; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("Second Amendment") dated October
11, 1995, a copy of which is attached hereto as Exhibit "C" and
made a part hereof for all purposes; and
WHEREAS, Seller and Buyer have agreed to further amend
certain terms and conditions of the Agreement as more
specifically set forth herein;
NOW, THEREFORE, for a good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer do hereby agree to further amend the Agreement as
follows:
1. The third sentence of Section 6b of the Agreement is deleted
in its entirety and the following sentence shall be inserted
in lieu thereof:
On or before December 18, 1995, Seller shall deliver to
Buyer Estoppel Certificates (herein so called), in form
substantially as that set forth in Exhibit "M" attached
hereto, originally executed by at least 75% of the
Tenants under the Office Leases (collectively the
"Estoppel Certificates").
2. The language "45 days after the later of (i) the Effective
Date or (ii) the date on which Seller has notified Buyer
that substantially all of the documents and information
described in Section 6a have been made available to Buyer"
in the first sentence of Section 16(b) of the Agreement is
deleted and the date "November 27, 1995" shall be inserted
in lieu thereof.
3. The third sentence of the second paragraph of Section 16(b)
of the Agreement is deleted in its entirety and the
following sentence shall be inserted in lieu thereof:
If Buyer timely gives the Inspection Termination Notice
to Seller, the Deposit together with all interest
earned thereon shall be immediately returned to Buyer,
less and with the exception of Fifteen Thousand and
No/100 Dollars ($15,000.00) of the Deposit which shall
be immediately delivered to Seller in consideration for
the Due Diligence Review and Seller's entering into
this Agreement.
4. The first sentence of Section 16(c) of the Agreement is
deleted in its entirety and the following sentence shall be
inserted in lieu thereof:
Buyer shall have until January 4, 1996 (the "Financing
Feasibility Period") to obtain third party debt
financing upon terms acceptable to Buyer.
5. The third sentence of Section 16(c) of the Agreement is
deleted in its entirety and the following sentence shall be
inserted in lieu thereof:
If Buyer timely gives the Financing Termination Notice
to Seller, the Deposit together with all interest
earned thereon shall be immediately returned to Buyer,
less and with the exception of Forty Thousand and
No/100 Dollars ($40,000.00) of the Deposit which shall
be immediately delivered to Seller in consideration for
the Due Diligence Review, Seller's entering into this
Agreement and restricting Seller's ability to agree to
sell the Property to any Person other than Buyer until
the end of the Financing Feasibility Period.
6. Section 17b(d) of the Agreement is deleted in its entirety
and the following shall be inserted in lieu thereof:
(d) Equity Partners. On or before November 27, 1995,
Buyer will deliver to Seller (i) current financial
statements of Buyer, (ii) written commitments from all
Persons who on such date are or will become general and
limited partners of, and other equity investors in,
Buyer (collectively, "Partners and Investors") that
they will make the equity investments necessary to
purchase the Property from Seller pursuant to this
Agreement, subject only to Buyer's obtaining the third
party debt financing upon terms acceptable to Buyer,
and (iii) current financial statements of the Partners
and Investors. Such Partners and Investors shall incur
no legal liability to Seller or Buyer as a result of
such commitments. Buyer may thereafter add or
substitute Partners and Investors as Buyer deems
necessary to complete the equity structure of Buyer.
The withdrawal of any Partner or Investor of Buyer
which prevents Buyer from closing the purchase of the
Property from Seller shall constitute a default by
Buyer under this Agreement only if Buyer has not timely
given the Financing Termination Notice. If Buyer does
not deliver such financial statements and commitments
to Seller by November 27, 1995, Seller shall have the
right to terminate this Agreement by notice to Buyer.
If Seller exercises its right to terminate this
Agreement, the Deposit together with all interest
earned thereon shall be immediately returned to Buyer,
less and with the exception of Fifteen Thousand and
No/100 Dollars ($15,000.00) of the Deposit which shall
be immediately delivered to Seller in consideration for
the Due Diligence Review and Seller's entering into
this Agreement.
7. This Third Amendment may be executed in multiple
counterparts which, when combined together, shall constitute
an original of this Third Amendment. In addition, facsimile
signatures of the parties shall be effective on all
counterparts of this Third Amendment.
8. All terms and conditions of the Agreement not specifically
amended hereby are hereby ratified, confirmed, and shall
continue in full force and effect.
EXECUTED this 7th day of November, 1995.
Seller:
INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇, President
Buyer:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Managing Venturer
Fourth Amendment to
Agreement of Sale
This Fourth Amendment to Agreement of Sale ("Fourth
Amendment") is entered into by and between Investors Life
Insurance Company of North America ("Seller") and Omni Congress
Joint Venture ("Buyer") and is as follows:
WHEREAS, Seller and Buyer entered into an Agreement of Sale
(the "Agreement") having an effective date of September 5, 1995,
wherein Seller agreed to sell and Buyer agreed to purchase the
real property described on Exhibit "A" attached hereto and made a
part hereof for all purposes (the "Property"); and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("First Amendment") dated September
27, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("Second Amendment") dated October
11, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Third Amendment") dated November 7,
1995; and
WHEREAS, Seller and Buyer have agreed to further amend
certain terms and conditions of the Agreement as more
specifically set forth herein;
NOW, THEREFORE, for a good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer do hereby agree to further amend the Agreement as
follows:
1. The third sentence of Section 6b of the Agreement is deleted
in its entirety and the following sentence shall be inserted
in lieu thereof:
On or before December 27, 1995, Seller shall deliver to
Buyer Estoppel Certificates (herein so called), in form
substantially as that set forth in Exhibit "M" attached
hereto, originally executed by at least 75% of the
Tenants under the Office Leases (collectively the
"Estoppel Certificates").
2. The first sentence of Section 13 of the Agreement is deleted
in its entirety and the following sentence shall be inserted
in lieu thereof:
Consummation of the transactions contemplated by this
Agreement (the "Closing") shall be held on or before
the first business day (the "Closing Date") that is ten
(10) days after the end of the Financing Feasibility
Period as described in Section 16(c), subject to any
extension required by Section 10 hereof.
3. The date "November 27, 1995" in the first sentence of
Section 16(b) of the Agreement is deleted and the date
"December 4, 1995" shall be inserted in lieu thereof.
4. The first sentence of Section 16(c) of the Agreement is
deleted in its entirety and the following sentences shall be
inserted in lieu thereof:
Buyer shall have until the close of business on the
last day of the Financing Feasibility Period (as
hereinafter defined) to obtain third party financing
upon terms acceptable to Buyer. If Omni Hotel notifies
Seller in writing of its intended termination of the
Omni Hotel Agreement in accordance with Section 16.3
thereof, the "Financing Feasibility Period" shall end
on February 5, 1996. If Omni Hotel notifies Seller in
writing of its decision not to terminate the Omni Hotel
Agreement pursuant to Section 16.3 thereof, the
"Financing Feasibility Period" shall end on the later
of (i) January 4, 1996 or (ii) fifteen (15) days after
the date on which Seller receives such notice from Omni
Hotel, but in no event shall the "Financing Feasibility
Period" end later than January 19, 1996. If Omni Hotel
does not give either notice referred to in the
preceding two sentences within thirty (30) days of Omni
Hotel's receipt of the information required to be
furnished by Seller pursuant to Section 16.2 of the
Omni Hotel Agreement, the "Financing Feasibility
Period" shall end on the later of (i) January 4, 1996
or (ii) fifteen (15) days after the date on which said
30-day period ends, but in no event shall the
"Financing Feasibility Period" end later than January
19, 1996. If the end of the "Financing Feasibility
Period" cannot be determined with certainty because of
a dispute with Omni Hotel as to whether or when Omni
Hotel received the information required to be furnished
by Seller pursuant to Section 16.2 of the Omni Hotel
Agreement, the "Financing Feasibility Period" shall end
on January 19, 1996.
5. The last sentence of Section 21(a) of the Agreement is
deleted in its entirety and the following sentence shall be
inserted in lieu thereof:
Buyer agrees to and does hereby indemnify, defend,
exonerate and save Seller harmless from and against any
and all liability, loss, damage, claims and expense
incurred or suffered by Seller (i) arising out of or
incidental to the operation of the Property by Buyer
after the conveyance of the Property to Buyer or (ii)
as the result of any claim made against Seller relating
to any addition or deletion of any general or limited
partners of, or other equity investors in, Buyer or any
other change in the information provided pursuant to
Section 17b(b) of this Agreement or Article XVI of the
Omni Hotel Agreement.
6. This Fourth Amendment may be executed in multiple
counterparts which, when combined together, shall constitute
an original of this Fourth Amendment. In addition,
facsimile signatures of the parties shall be effective on
all counterparts of this Fourth Amendment.
7. All terms and conditions of the Agreement not specifically
amended hereby are hereby ratified, confirmed, and shall
continue in full force and effect.
Executed on this the 1st day of December, 1995.
Seller:
INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇, President
Buyer:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Managing Venturer
Fifth Amendment to
Agreement of Sale
This Fifth Amendment to Agreement of Sale ("Fifth
Amendment") is entered into as follows:
WHEREAS, Investors Life Insurance Company of North America
("Seller") and Omni Congress Joint Venture ("Buyer") entered
into an Agreement of Sale (the "Agreement") having an effective
date of September 5, 1995, wherein Seller agreed to sell and
Buyer agreed to purchase the real property described on Exhibit
"A" attached hereto and made a part hereof for all purposes (the
"Property"); and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("First Amendment") dated September
27, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("Second Amendment") dated October
11, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Third Amendment") dated November 7,
1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Fourth Amendment") dated December 1,
1995; and
WHEREAS, Seller and Buyer have agreed to further amend
certain terms and conditions of the Agreement as more
specifically set forth herein;
NOW, THEREFORE, for a good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer do hereby agree to further amend the Agreement as
follows:
1. Section 2(b) of the Agreement is hereby amended by adding
the following sentence to the end of said Section 2(b):
Seller agrees to pay One Million and No/100 Dollars
($1,000,000.00) of the Purchase Price to Buyer's reserve
account for tenant improvement costs, commissions and
capital reserves for the Property. Seller will have no
control over, beneficial interest in or responsibility for
said account.
2. The first sentence of Section 13 of the Agreement is deleted
in its entirety and the following sentence shall be inserted
in lieu thereof:
Consummation of the transactions contemplated by this
Agreement (the "Closing") shall be held on or before
March 1, 1996 (the "Closing Date"), subject to any
extension required by Section 10 hereof; provided,
however, that Buyer shall have the right to extend the
Closing Date to a date on or before March 29, 1996 if
Buyer, prior to February 26, 1996, gives notice to
Seller and the Title Company of such extension of the
Closing Date and deposits with the Title Company, as
Escrow Agent, an additional Two Hundred and Fifty
Thousand and No/10 Dollars ($250,000.00), thereby
increasing the Deposit to Seven Hundred and Fifty
Thousand and No/100 Dollars ($750,000.00).
3. Section 15(c) of the Agreement is deleted in its entirety
and the following shall be inserted in lieu thereof:
(c) After the Closing, Seller shall promptly pay to
Buyer, as collected, a fraction of the amounts
collected on all accounts receivable balances referred
to in Subsection 15(a) above, which fraction shall
consist of $250,000.00 as the numerator and the total
amount of such account receivable balances, outstanding
on the Closing Date as the denominator. Seller shall
use commercially reasonable efforts to collect such
account receivable balances.
4. Seller and Buyer acknowledge and agree that the Financing
Feasibility Period described in Section 16(c) of the
Agreement has expired. Buyer hereby waives its right to
give the Financing Termination Notice and acknowledges that
the Deposit has become fully non-refundable except for
Seller's uncured default or failure to close on the Closing
Date or the failure of Seller to satisfy the conditions in
Section 8 of the Agreement that Seller is obligated to
satisfy prior to the Closing.
5. This Fifth Amendment may be executed in multiple
counterparts which, when combined together, shall constitute
an original of this Fifth Amendment. In addition, facsimile
signatures of the parties shall be effective on all
counterparts of this Fifth Amendment.
6. All terms and conditions of the Agreement not specifically
amended hereby are hereby ratified, confirmed, and shall
continue in full force and effect.
Executed on this the 19th day of January, 1996.
Seller:
INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President and Assistant Secretary
Buyer:
OMNI CONGRESS JOINT VENTURE, a
Texas General Partnership
By:/s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇: Managing Venturer
Sixth Amendment to
Agreement of Sale
This Sixth Amendment to Agreement of Sale ("Fifth
Amendment") is entered into as follows:
WHEREAS, Investors Life Insurance Company of North America
("Seller") and Omni Congress Joint Venture ("Buyer") entered
into an Agreement of Sale (the "Agreement") having an effective
date of September 5, 1995, wherein Seller agreed to sell and
Buyer agreed to purchase the real property described on Exhibit
"A" attached hereto and made a part hereof for all purposes (the
"Property"); and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("First Amendment") dated September
27, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by letter agreement ("Second Amendment") dated October
11, 1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Third Amendment") dated November 7,
1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Fourth Amendment") dated December 1,
1995; and
WHEREAS, Seller and Buyer have previously amended the
Agreement by an amendment ("Fifth Amendment") dated January 19,
1996; and
WHEREAS, Seller and Buyer have agreed to further amend
certain terms and conditions of the Agreement as more
specifically set forth herein;
NOW, THEREFORE, for a good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer do hereby agree to further amend the Agreement as
follows:
1. The first sentence of Section 13 of the Agreement is deleted
in its entirety and the following sentence shall be inserted
in lieu thereof:
Consummation of the transactions contemplated by this
Agreement (the "Closing") shall be held on or before
March 1, 1996 (the "Closing Date"), subject to any
extension required by Section 10 hereof; provided,
however, that Buyer shall have the right to extend the
Closing Date to a date on or before March 29, 1996 if
Buyer, prior to 10:00 a.m., Austin, Texas time, on
February 27, 1996, gives notice to Seller and the Title
Company of such extension of the Closing Date and
deposits with the Title Company, as Escrow Agent, an
additional Two Hundred and Fifty Thousand and No/10
Dollars ($250,000.00), thereby increasing the Deposit
to Seven Hundred and Fifty Thousand and No/100 Dollars
($750,000.00).
2. This Sixth Amendment may be executed in multiple
counterparts which, when combined together, shall constitute
an original of this Sixth Amendment. In addition, facsimile
signatures of the parties shall be effective on all
counterparts of this Sixth Amendment.
3. All terms and conditions of the Agreement not specifically
amended hereby are hereby ratified, confirmed, and shall
continue in full force and effect.
Executed on this the 23rd day of February, 1996.
Seller:
INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice
President
Buyer:
OMNI CONGRESS JOINT VENTURE
By:/s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Managing Venturer
ASSIGNMENT AND ASSUMPTION OF
AGREEMENT OF SALE
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENT OF SALE (the
"Assignment") is made as of January 19, 1996, by and between OMNI
CONGRESS JOINT VENTURE, a Texas joint venture, ("Assignor"),
whose mailing address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and PROPERTY ASSET MANAGEMENT INC., a Delaware
corporation, ("Assignee"), whose mailing address is 3 World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Assignor has entered into that certain Agreement of
Sale dated September 5, 1995 between Investors Life Insurance
Company of North America ("Investors"), as Seller, and Assignor,
as Buyer, as amended by the First Amendment to Agreement of Sale
dated September 27, 1995, the Second Amendment to Agreement of
Sale dated October 11, 1995, the Third Amendment to Agreement of
Sale dated November 7, 1995, the Fourth Amendment to Agreement of
Sale dated December 1, 1995 and Fifth Amendment to Agreement of
Sale dated January 19, 1996 (said Agreement of Sale along with
the First Second, Third and Fourth Amendments to Agreement of
Sale being collectively referred to as the "Agreement") relating
to the sale by Investors to Assignor of the real estate in
Austin, Texas known as the Austin Centre and more particularly
described on Exhibit "A" attached hereto (the "Property");
NOW, THEREFORE, in consideration of the foregoing and the
agreements and covenants herein set forth, together with the sum
of Ten Dollars ($10.00) and other good and valuable consideration
this day paid and delivered by Assignee to Assignor, the receipt
and sufficiency of all of which are hereby acknowledged by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER AND
DELIVER unto Assignee all of Assignor's right, title and interest
in and to the Agreement and all of the rights, benefits and
privileges of Assignor thereunder, but not Assignor's obligations
thereunder.
TO HAVE AND TO HOLD all and singular the Agreement unto
Assignee, and Assignee's successors and assigns forever.
1. Assignee hereby accepts the assignment of the Agreement
(other than the obligations of the Assignor under the Agreement).
This Assignment shall not be construed to currently obligate
Assignee to take any action or incur any expense or perform or
discharge any obligation, duty or liability under the Agreement.
It is agreed and understood that if Assignor fails to meet any of
its obligations pursuant to the Agreement, Assignee may, but is
not required to, assume all of the obligations of the Buyer under
the Agreement on its own behalf or on behalf of Assignor. Seller
agrees to give Buyer written notice of any default by Assignor
under the Agreement and Assignee shall have two (2) business days
to assume in writing all of the obligations of the Buyer under
the Agreement, including, but not limited to, the obligations of
Buyer under Sections 17b (a) and (b) of the Agreement. If the
time for compliance with any obligations of Buyer has expired
prior to the valid assumption of such obligation by Assignee
pursuant to the preceding sentence, Assignee shall be afforded a
reasonable period of time under the circumstances to perform such
obligation. If Assignee fails to timely assume in writing all of
the obligations of the Buyer under the Agreement, the Agreement
shall terminate and the Deposit shall be distributed to Seller in
accordance with the Agreement. Notwithstanding this Assignment,
Assignor hereby acknowledges and agrees that it shall remain
fully liable to perform all of the obligations of the Buyer under
the Agreement.
1.A Assignee acknowledges and agrees that the Financing
Feasibility Period described in Section 16(c) of the Agreement
has expired. Buyer has waived its right to give the Financing
Termination Notice, and that the Deposit has become fully non-
refundable except for Seller's uncured default or failure to
close on the Closing Date or the failure of Seller to satisfy the
conditions in Section 8 of the Agreement that Seller is obligated
to satisfy prior to the Closing.
2. Assignor shall not enter into any agreement or do or
fail to do any act under the Agreement or otherwise that will
adversely affect the rights assigned to Assignee hereunder
without the consent of Assignee.
3. Each party shall sign and give such notices and
consents as shall be necessary to confirm the provisions of this
Assignment to Investors or any other persons or entity having
rights or obligations under the Agreement, as the other may
request from time to time, and each party shall execute and
deliver to the other such further instruments, documents and
agreements as the other may reasonably require to make this
Assignment effective.
4. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
5. This Assignment may only be modified, altered, amended
or terminated by the written agreement of Assignor and Assignee.
6. Any notice, request, demand, statement or consent made
hereunder or in connection herewith to any party shall be in
writing and shall be sent (if to any party other than PAMI) to
the addresses and in the manner specified in the Agreement, and
if to PAMI, to ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
7. If any term, covenant or condition of this Assignment
shall be held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such
provision.
8. This Assignment shall be governed by and construed
under the laws of the State of New York without regard to
principles of conflicts of law.
9. This Assignment may be executed in counterparts, which
when taken together shall be deemed to be an original.
10. Each party hereto acknowledges and agrees that all
parties hereto may rely upon execution of this Agreement and the
Assignment by facsimile copy.
11. Capitalized terms used but not defined in this
Assignment shall have the meanings given to them in the
Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment as of the day and year first above written.
ASSIGNOR:
OMNI CONGRESS JOINT VENTURE, a
Texas joint venture
By:/s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇: Managing Venturer
ASSIGNEE:
PROPERTY ASSET MANAGEMENT INC.
a Delaware corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CONSENT OF SELLER
Investors Life Insurance Company of North America hereby consents
to the foregoing assignment of the Agreement from Assignor to
Assignee. By its consent, Investors Life Insurance Company of
North America agrees to accept, subject to Assignee's assumption
in writing of all of the obligations of the Buyer under the
Agreement, tender of performance by Assignee of any obligations
of Assignor as buyer under the Agreement, including without
limitation, the closing of the purchase of the Property.
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and
Assistant Secretary