EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE
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OF REAL PROPERTY AND ESCROW INSTRUCTIONS
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THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
(this "Agreement") is made and entered into as of this day of September, 2001,
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by and between DT PARTNERS THREE LIMITED PARTNERSHIP, a Texas limited
partnership ("Seller"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited
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liability company ("Buyer"), with reference to the following facts:
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A. Seller owns certain real property located in Orange County,
California, commonly known as 25341, 25351, 25361, 25371, 25381 and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and certain other
assets herein described.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller such real property and the associated assets.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements herein contained, the parties hereto do hereby agree as follows:
l. Purchase and Sale.
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1.1. The purchase and sale includes, and at the Close of Escrow (as
hereinafter defined) Seller shall sell, transfer, grant and
assign to Buyer, Seller's entire right and interest in and to all
of the following (collectively, the "Property"):
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1.1.1. That certain real property commonly known as Pacific
Corporate Park, located at 25341, 25351, 25361, 25371,
23581 and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, and more specifically described in Exhibit
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"A" attached hereto, together with all structures,
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buildings, improvements, machinery, fixtures, and
equipment affixed or attached to the real property and
all easements, development rights, rights of way, and
other rights appurtenant to the real property
(collectively, the "Real Property");
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1.1.2. All leases, including associated amendments ("Leases"),
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with all persons ("Tenants") leasing the Real Property
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or any part thereof or hereafter entered into in
accordance with the terms hereof prior to the Close of
Escrow, together with all security deposits, other
deposits held in connection with the Leases, Lease
guarantees and other similar credit enhancements
providing additional security for such Leases;
1.1.3. All tangible and intangible personal property owned by
Seller located on or used in connection with the Real
Property, including, specifically, without
limitation, equipment, furniture, tools and supplies,
and all related intangibles including Seller's interest
in the name "Pacific Corporate Park" (the "Personal
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Property");
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1.1.4. All service contracts, agreements, warranties and
guaranties relating to the operation, use or
maintenance of the Property (the "Contracts"); and
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1.1.5. To the extent transferable, all building permits,
certificates of occupancy and other certificates,
permits, licenses and approvals relating to the
Property, and all documentation (complete or
incomplete) of Seller relating to the parcelization of
the Real Property (the "Permits").
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2. Purchase Price.
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The total Purchase Price of the Property shall be Twenty-Three Million
Seven Hundred Forty-Seven Thousand and No/100 Dollars ($23,747,000.00) (the
"Purchase Price") payable as follows:
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2.1. Deposit/Further Payments.
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2.1.1. Within two (2) business days following the date a fully
executed original of this Agreement is delivered to
Escrow Holder (as hereinafter defined) (the "Effective
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Date"), Buyer shall deposit into Escrow the amount of
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Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) (the "Deposit"), in immediately available
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funds with Commonwealth Land Title Company, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇▇▇▇ Mesh ("Escrow Holder"). Escrow Holder shall
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place the Deposit into an interest bearing money market
account at a bank or other financial institution
reasonably satisfactory to Buyer, and interest thereon
shall be credited to Buyer's account and shall be
deemed to be part of the Deposit. If this Agreement is
terminated by Buyer in accordance with its terms, the
Deposit shall be immediately and automatically paid
over to Buyer without the need for any further action
by either party hereto. If Buyer fails to deliver the
Deposit into Escrow within two (2) business days
following the date a fully executed original of this
Agreement is delivered to Escrow Holder, this Agreement
shall automatically terminate at the end of the second
business day, and neither party shall have any
liability hereunder.
2.1.2. On the first business day following the conclusion of
the Due Diligence Period (as hereinafter defined), and
absent Buyer's election to terminate this Agreement
pursuant to Paragraph 5.2, Buyer shall deliver to
Escrow Holder the additional sum of Two Hundred Fifty
Thousand And No/100 Dollars ($250,000.00), which amount
shall be added to, and included in the definition
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of, the Deposit. If Buyer fails to deliver such
additional sum into Escrow on the first business day
following the conclusion of the Due Diligence Period,
Buyer shall be in breach of this Agreement, this
Agreement shall automatically terminate at the end of
the such business day, and Seller shall be paid the
Deposit as liquidated damages.
2.1.3. On or before the Close of Escrow, Buyer shall deposit
with the Escrow Holder to be held in Escrow the balance
of the Purchase Price, in immediately available funds.
3. Title to Property.
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3.1. Title Insurance.
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Seller will, at Seller's sole expense, cause Escrow Holder to
obtain or issue a CLTA Owner's Policy of Title Insurance (the
"Title Policy") from Commonwealth Land Title Company (the "Title
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Company") for and on behalf of Buyer in the total amount of the
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Purchase Price and obtainable at standard rates insuring good,
marketable and insurable title in and to the Real Property. The
Title Policy shall be free and clear of exceptions except as
follows:
3.1.1. Real property taxes and assessments, which are a lien
not yet due;
3.1.2. The Permitted Exceptions.
3.2. Procedure for Approval of Title.
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Seller shall, no later than ten (10) days following the Effective
Date, provide to Buyer a current preliminary title report for the
Real Property, including good and legible copies of all related
items certified as exceptions thereto (collectively with the
Survey (as hereinafter defined), the "Title Documents") For a
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period of ten (10) days following receipt of the Title Documents
(the "Title Review Period"), Buyer shall have the right to
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examine the same. If after such examination, Buyer determines
that the title to or condition of the Real Property as reflected
by any of the Title Documents is unacceptable to Buyer, Buyer
shall notify Seller in writing of Buyer's objections thereto (the
"Objection Notice"). Buyer shall be conclusively deemed to have
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accepted and approved such title as Seller can deliver pursuant
to the preliminary title report if Buyer fails to deliver an
Objection Notice before the expiration of the Title Review
Period. If Buyer delivers an Objection Notice to Seller before
the expiration of the Title Review Period, Seller may, but shall
not be obligated to, undertake to eliminate or modify such
unacceptable matters to the reasonable satisfaction of Buyer;
provided, however, Seller shall in all events, at or before the
Close of Escrow, specifically remove any monetary encumbrances
affecting the Real Property (other than current taxes), and the
same shall
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not be Permitted Exceptions. Except as set forth in the preceding
sentence, "Permitted Exceptions" hereunder are all matters shown
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in the Title Documents that are not objected to in a timely
delivered Objection Notice, and all matters that are objected to
in a timely delivered Objection Notice that are uncured at the
expiration of the Due Diligence Period.
4. Due Diligence.
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4.1. Due Diligence Items: Seller has, contemporaneously with or prior
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to the execution of this Agreement, delivered to Seller the
following (collectively, the "Due Diligence Items"):
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4.1.1. Copies of all Leases presently in effect with respect
to the Real Property, together with any amendments or
modifications thereof;
4.1.2. A rent roll with respect to the Real Property for the
calendar month immediately preceding the Effective
Date, prepared by or for Seller in the ordinary course
of managing the Real Property (the "Rent Roll");
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4.1.3. A delinquency report with respect to the Real Property
for the calendar month immediately preceding the
Effective Date, prepared by or for Seller in the
ordinary course of managing the Real Property;
4.1.4. A list of all contracts, including service contracts,
warranties, management, maintenance, leasing commission
or other agreements affecting the Real Property, if
any, together with copies of the same;
4.1.5. True and correct copies of the real estate and personal
property tax statements covering the Property or any
part thereof for each of the two (2) fiscal years prior
to the current year and, if available, for the current
fiscal year;
4.1.6. A schedule of all current or pending litigation with
respect to the Real Property or any part thereof, if
any, or otherwise with respect to Seller that might
have a material adverse effect on Seller's ability to
perform hereunder, together with a brief description of
each such proceeding;
4.1.7. Operating statements for the Real Property for calendar
years 1999, 2000 and 2001 year to date, or if shorter,
for any periods during which Seller was owner of the
Real Property, prepared by or for Seller in the
ordinary course of managing the Real Property;
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4.1.8. An inventory of all personal property located on the
Real Property which is used in the maintenance of the
Real Property or stored for future use with the Real
Property;
4.1.9. Copies of utility bills for the Real Property for the
calendar years 2000 and 2001 year to date;
4.1.10. Copy of the survey of the Real Property (the "Survey")
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dated May 1998 prepared by ▇▇▇▇▇▇ & Associates, Inc.;
and
4.1.11 Copies of all maps previously obtained by Seller for
the parcelization of the Real Property.
4.2. Matters to be Made Available: To the extent such items are in
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Seller's possession, Seller shall make available to Buyer for
Buyer's review, at Seller's option at either the offices of
Seller's property manager or at the Real Property, the following
items and information (collectively, the "Additional Due
Diligence Items"), and Buyer shall be permitted, at its sole cost
and expense, to copy the Additional Due Diligence Items:
4.2.1. All site plans, leasing plans, as-built plans,
drawings, environmental, mechanical, electrical,
structural, soils and similar reports and/or audits and
plans and specifications relative to the Real Property,
if any; and
4.2.2. Copies of Tenant files and records relating to the
ownership and operation of the Real Property.
4.3. Estoppel Certificates.
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Seller shall use commercially reasonable efforts to obtain and
deliver to Buyer, no later than ten (10) days prior to the Close
of Escrow, estoppel certificates in the form approved by Buyer
and Seller as described in Paragraph 8.2 from (a) Freedom
Interactive-OC, Computer Education Institute, V - Systems and
Bank One (the "Major Tenants") and (b) seventy-five percent (75%)
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of all remaining Tenants of the Real Property (measured by square
footage occupied) (the "Required Percentage Estoppels"). If
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Seller is unable to obtain the Required Percentage Estoppels
despite commercially reasonable efforts to do so, Seller may
deliver to Buyer an estoppel certificate executed by Seller and
otherwise in form approved by Buyer covering sufficient estoppels
that, together with those obtained, equal the Required Percentage
Estoppels; provided, however, until the Close of Escrow, Seller
shall continue to use commercially reasonable efforts to obtain
an estoppel certificate executed by any such Tenant. The matters
certified in the estoppel certificates executed by Seller shall
be subject to Buyer's reasonable approval. Buyer shall notify
Seller in writing within three (3) business days following
receipt of a copy of any estoppel certificate executed by
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Seller of Buyer's approval or disapproval and the basis of such
disapproval, if disapproved. In addition to the foregoing, Seller
shall use commercially reasonable efforts to obtain prior to the
Close of Escrow any and all subordination, non-disturbance and
attornment agreements (the "SNDA's") required by Buyer's lender
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in the form approved by Buyer and Seller as described in
Paragraph 8.2.
5. Inspections.
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5.1 Procedure; Indemnity.
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Buyer, at its sole expense, shall have the right to conduct a
feasibility, environmental, engineering and physical study of the
Real Property at any time from and after the Effective Date and
for a period of thirty (30) days thereafter (the "Due Diligence
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Period"). Buyer and its duly authorized agents or representatives
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shall be permitted to enter upon the Real Property at all
reasonable times during the Due Diligence Period, after giving
Seller at least twentyfour (24) hours' notice (which may be by
telephone) of the day and time Buyer intends to enter, in order
to conduct engineering studies, soil tests and any other
inspections and/or tests that Buyer may deem necessary or
advisable (collectively, the "Inspections"). Buyer will conduct
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its Inspections in a manner that will not disturb or disrupt the
business of any of the Tenants of the Real Property. Buyer will
not conduct any invasive tests on any part of the Property
without the prior written consent of Seller (which Seller may
condition upon Seller's being present for the test) and Buyer
will not contact any Tenant of the Real Property without the
prior written consent of Seller (which Seller may condition upon
Seller's being present during the contact with any such Tenant).
Buyer agrees promptly to discharge any liens that may be imposed
against the Real Property as a result of Buyer's Inspections and
to defend, indemnify and hold Seller harmless from and against
all claims, suits, losses, costs, expenses (including without
limitation court costs and attorneys' fees), liabilities,
judgments and damages incurred by Seller as a result of any
Inspections performed by Buyer.
5.2. Approval.
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5.2.1. Buyer shall have until the conclusion of the Due
Diligence Period to review the Inspections, the Due
Diligence Items and the Additional Due Diligence Items.
Notwithstanding anything to the contrary in this
Agreement, Buyer may terminate this Agreement for any
reason relating to the Inspections, the Due Diligence
Items and the Additional Due Diligence Items or for no
reason by giving written notice of termination to
Seller and Escrow Holder (the "Due Diligence
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Termination Notice") on or before the last day of the
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Due Diligence Period. If Buyer does not give a Due
Diligence Termination Notice, this Agreement shall
continue in full force and effect, Buyer shall be
deemed to have waived its right to terminate this
Agreement pursuant to this
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Paragraph 5.2.1, and Buyer shall be deemed to have
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acknowledged that it has received or had access to the
Property and to all Due Diligence Items and Additional
Due Diligence Items, and has conducted all inspections
and tests of the Property that it considers important;
provided, however, Buyer shall nonetheless continue to
have the right to inspect, study and test the Property.
Upon receipt of a Due Diligence Termination Notice on
or before the last day of the Due Diligence Period,
Escrow Holder shall, without any further action
required from any party, return all documents and
funds, including the Deposit, to the parties who
deposited same and no further duties shall be required
of Escrow Holder.
5.2.2. Notwithstanding anything to the contrary contained
herein, Buyer hereby agrees that if this Agreement is
terminated for any reason, then Buyer shall promptly
and at its sole expense return to Seller all Due
Diligence Items which have been delivered by Seller to
Buyer in connection with Buyer's Inspections of the
Real Property. Buyer shall also promptly deliver to
Seller copies of all written reports concerning the
Real Property prepared by or for Buyer.
6. Escrow.
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6.1. Opening.
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Purchase and sale of the Property shall be consummated through an
escrow (the "Escrow") to be opened with Escrow Holder within two
(2) business days after the execution of this Agreement by Seller
and Buyer. This Agreement shall be considered as the Escrow
instructions between the parties, with such further consistent
instructions as Escrow Holder shall reasonably require in order
to clarify its duties and responsibilities. If Escrow Holder
shall require further Escrow instructions, Escrow Holder may
prepare such instructions on its usual form, Such further
instructions shall, so long as not inconsistent with the terms of
this Agreement, be promptly signed by Buyer and Seller and
returned to Escrow Holder within three (3) business days of
receipt thereof. In the event of any conflict between the terms
and conditions of this Agreement and any further Escrow
instructions, the terms and conditions of this Agreement shall
control.
6.2. Close of Escrow.
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Escrow shall close at a mutually agreeable date (the "Close of
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Escrow") within forty-five (45) days after the expiration of the
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Due Diligence Period.
6.3. Buyer Required to Deliver.
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Buyer shall deliver to Escrow the following:
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6.3.1. In accordance with Paragraph 2, the Deposit;
6.3.2. By 12:00 noon PST on the day of the Close of Escrow,
the balance of the Purchase Price; provided, however,
that Buyer shall not be required to deposit the balance
of the Purchase Price into Escrow until Buyer has been
notified by Escrow Holder that (i) Seller has delivered
to Escrow each of the documents and instruments to be
delivered by Seller in connection with Buyer's purchase
of the Property and (ii) Title Company has committed to
issue and deliver the Title Policy to Buyer;
6.3.3. By the day before the Close of Escrow, such other
documents as Title Company may require from Buyer in
order to issue the Title Policy;
6.3.4. By the day before the Close of Escrow, an original
Assignment and Assumption Agreement in the form
attached hereto as Exhibit B, duly executed by Buyer,
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assuming all of Seller's right, title and interest in
and to the Leases, the Permits and the Contracts from
and after the Close of Escrow.
6.4. Seller Required to Deliver.
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By the day before the Close of Escrow (unless otherwise provided
below), Seller shall deliver to Escrow Holder or Buyer, as
applicable, the following:
6.4.1. A duly executed and acknowledged grant deed in the form
attached hereto as Exhibit C (the "Deed"), conveying
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fee title to the Real Property in favor of Buyer;
6.4.2. A completed Certificate of Non-Foreign Status in the
form attached hereto as Exhibit D, duly executed by
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Seller under penalty of perjury;
6.4.3. An FTB Form 590 in the form attached hereto as Exhibit
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E or other evidence that withholding of any portion of
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the Purchase Price is not required by the Revenue and
Taxation Code of California or any other applicable
jurisdiction, duly executed by Seller under penalty of
perjury;
6.4.4. A ▇▇▇▇ of Sale in the form attached hereto as Exhibit F
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for the Personal Property, if any, in favor of Buyer
and duly executed by Seller;
6.4.5. Such other documents as Title Company may require from
Seller in order to issue the Title Policy;
6.4.6. The estoppel certificates as required by and provided
for in Paragraph 4.2;
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6.4.7. An original Assignment and Assumption Agreement in the
form attached hereto as Exhibit B duly executed and
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acknowledged by Seller, assigning all of Seller's
interest in and to the Leases, Contracts and Permits to
Buyer from and after the Close of Escrow;
6.4.8. To Buyer, promptly after the Close of Escrow, all keys
to all buildings and other improvements located on the
Real Property, combinations to any safes thereon, and
security devices therein in Seller's possession;
6.4.9. A letter from Seller in the form attached hereto as
Exhibit G addressed to each Tenant informing such
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Tenant of the change in ownership as set forth therein;
and
6.4.10. To Buyer, promptly after the Close of Escrow, the
original Leases.
6.5. Buyer's Costs.
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Buyer shall pay the following:
6.5.1. One-half (1/2) of Escrow Holder's fee, costs and
expenses;
6.5.2. The cost of recording any deed of trust or other
documentation required by Buyer's lender in conjunction
with any financing obtained by Buyer;
6.5.3. All other costs customarily borne by purchasers of real
property in Orange County, California.
6.6. Seller's Costs.
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Seller shall pay the following:
6.6.1. One-half (1/2) of Escrow Holder's fees, costs and
expenses;
6.6.2. The cost of recording the Deed and any transfer tax;
6.6.3. Title Company's premium for the Title Policy;
6.6.4. All other costs customarily borne by sellers of real
property in Orange County, California.
6.7. Prorations.
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6.7.1. Real property taxes, personal property taxes,
assessments, rents, and CAM expenses shall be prorated
through Escrow between Buyer and Seller as of the Close
of Escrow. All security deposits shall be paid over to
Buyer. Rents and CAM expenses shall be approved by
Buyer prior to the Close of Escrow. Any delinquent
rents attributable to periods prior to the Close of
Escrow and which are collected by Buyer or Seller shall
be retained by or paid to Seller. Seller shall have the
right to pursue any Tenant for delinquent rent, but
shall not have the right to seek eviction of any Tenant
by unlawful detainer or other means. Tax and assessment
prorations shall be based on the latest available tax
▇▇▇▇. If after the Close of Escrow either party
receives any further or supplemental tax ▇▇▇▇ relating
to any period prior to the Close of Escrow, the
recipient shall promptly deliver a copy of such tax
▇▇▇▇ to the other party, and not later than ten (10)
days prior to the delinquency date shown on such tax
▇▇▇▇ Buyer and Seller shall deliver to the taxing
authority their respective shares of such tax ▇▇▇▇,
prorated as of the Close of Escrow. All prorations
shall be based on a 365-day year.
6.7.2. All leasing commissions owing with respect to the
primary terms of Leases related to the Real Property
and entered into prior to execution of this Agreement,
and all costs for tenant improvements with respect to
such leases, shall be paid by Seller, and Seller shall
indemnify and hold Buyer harmless for Lease commission
claims brought against the Real Property arising
therefrom. All leasing commissions and tenant
improvement costs for new Leases executed after the
date of this Agreement shall be prorated between Buyer
and Seller as their respective periods of ownership
bear to the primary term of the new Lease, subject, in
all events, to the prior approval by Buyer of such new
Leases as herein provided pursuant to Paragraph 7.3.
Buyer shall be responsible for and shall pay leasing
commissions, if any, for all Lease renewals or
expansions, whether made pursuant to options contained
in the Leases or otherwise.
6.8. Determination of Dates of Performance.
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Promptly after delivery to Buyer of the Title Documents, Escrow
Holder shall prepare and deliver to Buyer and Seller a schedule
which shall state each of the following dates:
6.8.1. The Effective Date pursuant to Paragraph 2.1.1;
6.8.2. The date of receipt of the Title Documents by Buyer;
6.8.3. The date that is the last day of the Title Review
Period;
6.8.4. The date that is the last day of the Due Diligence
Period;
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6.8.5. The date by which the amounts described in Paragraph 2
must be deposited by Buyer, for which determination
Escrow Holder shall assume that Buyer does not deliver
a Due Diligence Termination Notice; and
6.8.6. The date of the Close of Escrow pursuant to Paragraph
6.2.
If any events which determine any of the aforesaid dates occur on
a date other than the date specified or assumed for its
occurrence in this Agreement, Escrow Holder shall promptly
redetermine as appropriate each of the dates of performance in
the aforesaid schedule and notify Buyer and Seller of the dates
of performance, as redetermined. Notwithstanding the provisions
of this Paragraph 6.8, in the event of a conflict between the
schedule and this Agreement, this Agreement shall prevail.
7. Seller Representations, Warranties, and Covenants
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7.1 Representations and Warranties.
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Seller hereby represents and warrants as of the date hereof and
as of the Close of Escrow by appropriate certificate to Buyer as
follows:
7.1.1. Seller is a limited partnership duly formed and validly
existing under the law of the State of Texas. Seller
has full power and authority to enter into this
Agreement, to perform this Agreement and to consummate
the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and all
documents contemplated hereby by Seller have been duly
and validly authorized by all necessary action on the
part of Seller and all required consents and approvals
have been duly obtained and will not result in a breach
of any of the terms or provisions of, or constitute a
default under, any indenture, agreement or instrument
to which Seller is a party or otherwise bound. This
Agreement is a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with
its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights
of creditors generally.
7.1.2. To Seller's knowledge, there are no unrecorded or
undisclosed documents or other matters which affect
title to the Real Property.
7.1.3. Seller is not a "foreign person" within the meaning of
Section 1445(f) of the Internal Revenue Code.
7.1.4. There are no-on site employees of Seller at the Real
Property, and following the Close of Escrow, Buyer
shall have no obligation to employ or continue to
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employ any individual employed by Seller or its
affiliates in connection with the Real Property.
7.1.5. Except as set forth on any schedule of litigation
delivered pursuant to Paragraph 4.1.6, there are no
actions, suits or proceedings pending, or to Seller's
knowledge, threatened in writing, against Seller and
affecting any portion of the Real Property, at law or
in equity, or before or by any federal, state,
municipal, or other governmental court, department,
commission, board, bureau, agency, or instrumentality,
domestic or foreign.
7.1.6. To Seller's knowledge, Seller has not received any
written notice of any violations of any ordinance,
regulation, law, or statute of any governmental agency
pertaining to the Real Property or any portion thereof.
7.1.7. There are no unpaid bills, claims, or liens in
connection with any construction or repair of the Real
Property except for those that will be paid in the
ordinary course of business prior to the Close of
Escrow or which have been bonded over or the payment of
which has otherwise been adequately provided for.
7.1.8. The Rent Roll was prepared in the ordinary course of
managing the Real Property. There are no leases,
subleases, licenses, occupancies or tenancies in effect
pertaining to any portion of the Real Property other
than as shown on the Rent Roll.
7.1.9. Except for the Contracts, there are no agreements or
other obligations relating to the operation, use or
maintenance of the Real Property.
7.1.10. The operating statements furnished to Buyer in
connection with or pursuant to this Agreement were
prepared in the ordinary course of managing the Real
Property.
7.2 Survival; Knowledge; Indemnity.
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The foregoing representations and warranties of Seller are made
by Seller as of the date hereof and again as of the Close of Escrow and shall
survive the Close of Escrow for a period of six (6) months (the "Survival
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Period"). Terms such as "to Seller's knowledge," "to the best of Seller's
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knowledge" or like phrases mean the actual present and conscious awareness or
knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇ ("Seller's Employee") without any duty of inquiry or
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investigation; provided that so qualifying Seller's knowledge shall in no event
give rise to any personal liability on the part of Seller's Employee or any
other partner, officer or employee of Seller, on account of any breach of any
representation or warranty made by Seller herein. Such terms do not include
constructive knowledge, imputed knowledge, or knowledge Seller or such persons
do not have but could have obtained through further investigation or inquiry. No
broker, agent, or party other than Seller is authorized to make any
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representation or warranty for or on behalf of Seller. Seller agrees to defend
and indemnify Buyer against any and all claims, demands, liabilities, losses,
damages, costs and expenses, including reasonable attorneys' fees asserted
against or suffered by Buyer arising out of the breach or inaccuracy of any
representation or warranty, and Buyer shall have the right to bring an action
against Seller on the breach of a representation or warranty hereunder, but only
on the following conditions: (a) Buyer first obtains actual knowledge of the
breach after the Close of Escrow and files such action within the Survival
Period, and (b) Buyer shall have no right to bring a cause of action or to seek
indemnification for a breach of a representation or warranty unless the damage
Buyer on account of such breach equals or exceeds $30,000.00. Seller shall have
no liability after the Close of Escrow for the breach of a representation or
warranty hereunder of which Buyer had actual knowledge as of the Close of
Escrow. Furthermore, Buyer agrees that the maximum liability of Seller for the
alleged breach of any or all representations or warranties set forth in this
Agreement is limited to $300,000.00. The provisions of this Paragraph 7.2 shall
-------------
survive the Close of Escrow. Any breach of a representation or warranty that
occurs prior to the Close of Escrow shall be governed by Paragraph 13.1.
--------------
7.3. Covenants of Seller. Seller hereby covenants from and after the
-------------------
Effective Date as follows:
7.3.1. To cause to be in force property damage insurance
upon the Real Property, and commercial general
liability insurance with respect to damage or
injury to persons or property occurring on the
Real Property in at least such amounts as are
maintained by Seller on the date hereof.
7.3.2. To manage the Real Property in the ordinary course and
to perform normal maintenance thereon from and after
the Effective Date in the same fashion as prior to the
Effective Date.
7.3.3. After the Due Diligence Period, not to amend or
terminate any existing Lease or enter into any new
Lease without Buyer's prior written consent and without
providing Buyer (a) all reasonably relevant supporting
documentation, (the "Proposed Lease Package"), and (b)
----------------------
Seller's request for Buyer's approval, which approval
will not be unreasonably withheld or delayed. Exercise
of a mandatory renewal option shall not be considered a
new Lease. To the extent disclosed to Buyer in the
Proposed Lease Package, any brokerage commission and
the cost of Tenant improvements or other allowances
payable with respect to a new Lease shall be prorated
between Buyer and Seller in accordance with their
respective periods of ownership as they bear to the
primary term of the new Lease. Buyer shall have five
(5) business days following receipt of a request for
any approval pursuant to this paragraph in which to
approve or disapprove of any new Lease or any amendment
or termination of any existing Lease. Failure to
respond in writing within such time period shall be
deemed to be approval. Seller's execution of a new
Lease or modification or cancellation
13
of an existing Lease following Buyer's reasonable
refusal to approve same shall constitute a default
hereunder.
7.3.4. During the Due Diligence Period, not to amend or
terminate any existing Lease, or enter into any new
Lease, without providing Buyer (i) a Proposed Lease
Package and (ii) Seller's request for Buyer's approval,
which approval will not be unreasonably withheld or
delayed. Moreover, whether or not Buyer consents to an
amendment or termination of a Lease or the entering
into of a new Lease, Seller may amend or terminate a
Lease or enter into a new Lease at any time during the
Due Diligence Period. Buyer shall have three (3)
business days following receipt of a request for any
approval pursuant to this paragraph in which to approve
or disapprove of any new Lease or any amendment or
termination of any existing Lease. Failure to respond
in writing within such time period shall be deemed to
be approval. Seller's execution of a new Lease or
modification or cancellation of an existing Lease
following Buyer's reasonable refusal to approve same
shall give Buyer the right to terminate this Agreement
as described below. If Buyer does not approve same or
is not deemed to have approved same, and if Seller
elects to amend or terminate a Lease or enter into a
new Lease notwithstanding Buyer's failure to approve
same, then Buyer may, at the ▇▇▇▇ ▇▇▇▇▇▇ notifies Buyer
of the execution of any such amendment, termination or
new Lease, elect to terminate this Agreement and
receive a return of the Deposit by delivering written
notice thereof to Seller; provided that if Buyer does
not elect to terminate within five (5) days after such
notification from Seller, then Buyer shall have waived
its right to terminate pursuant to this Paragraph 7.3.4
---------------
7.3.5. Not to sell, assign, or convey any right, title, or
interest whatsoever in or to the Real Property, or
create or permit to attach any lien, security interest,
easement, encumbrance, charge, or condition affecting
the Real Property (other than the Permitted
Exceptions).
7.3.6. Without Buyer's written approval, not to (a) amend or
waive any right under any Contract, or (b) enter into
any service, operating or maintenance agreement
affecting the Real Property that would survive the
Close of Escrow.
7.3.7. To fully and timely comply with all obligations to be
performed by it under the Leases and Contracts, and all
Permits, licenses, approvals and laws, regulations and
orders applicable to the Real Property.
7.4. Disclaimers by Seller. Except as expressly set forth in this
---------------------
Agreement, it is understood and agreed that Seller has not at any
time made and is not now making, and Seller specifically
disclaims, any warranties or representations of any kind or
character, express or implied, with respect to the Property,
including, but not limited to, warranties or representations as
to (i) matters of title (other than
14
Seller's warranty of title set forth in the Deed to be delivered
at Closing), (ii) environmental matters relating to the Property
or any portion thereof, including, without limitation, the
presence of Hazardous Substances in, on, under or in the vicinity
of the Property, (iii) geological conditions, including, without
limitation, subsidence, subsurface conditions, water table,
underground water reservoirs, limitations regarding the
withdrawal of water and earthquake faults and the resulting
damage of past and/or future earthquakes, (iv) whether, and to
the extent to which the Property or any portion thereof is
affected by any stream (surface or underground), body of water,
flood prone area, flood plain, floodway or special flood hazard,
(v) drainage, (vi) soil conditions, including the existence of
instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the sufficiency of
any undershoring, (vii) zoning or building entitlements to which
the Real Property or any portion thereof may be subject, (viii)
the availability of any utilities to the Real Property or any
portion thereof including, without limitation, water, sewage, gas
and electric, or the availability of parking to the Real
Property, (ix) usages of adjoining property, (x) access to the
Real Property or any portion thereof, including, but not limited
to, (xi) the value, compliance with the plans and specifications,
size, location, age, use, design, quality, description,
suitability, structural integrity, operation, title to, or
physical or financial condition of the Property or any portion
thereof, or any income, expenses, charges, liens, encumbrances,
rights or claims on or affecting or pertaining to the Property or
any part thereof, (xii) the condition or use of the Property or
compliance of the Property with any or all past, present or
future federal, state or local ordinances, rules, regulations or
laws, building, fire or zoning ordinances, codes or other similar
laws, (xiii) the existence or non-existence of underground
storage tanks, surface impoundments, or landfills, (xiv) the
merchantability of the Property or fitness of the Property for
any particular purpose, (xv) the truth or accuracy of the content
of any of the Due Diligence Items or Additional Due Diligence
Items (xvi) tax consequences, or (xvii) any other matter or thing
with respect to the Property
7.5. Sale "As Is, Where Is". Buyer acknowledges and agrees that upon
----------------------
the Close of Escrow, Seller shall sell and convey to Buyer and
Buyer shall accept the Property "AS IS, WHERE IS, WITH ALL
FAULTS," except to the extent expressly provided otherwise in
this Agreement and any document executed by Seller and delivered
to Buyer at Closing. Except as expressly set forth in this
Agreement, Buyer has not relied and will not rely on, and Seller
has not made and is not liable for or bound by, any express or
implied warranties, guarantees, statements, representations or
information pertaining to the Property or relating thereto
(including specifically, without limitation, property marketing
packages distributed with respect to the Property) made or
furnished by Seller, Seller's property manager, or any real
estate broker, agent or third party representing or purporting to
represent Seller, to whomever made or given, directly or
indirectly, orally or in writing. Buyer represents that it is a
knowledgeable, experienced and sophisticated purchaser of real
estate and that, except as expressly set forth in this Agreement,
it is relying solely on its own expertise and that of Buyer's
consultants in purchasing the Property. Buyer will conduct such
inspections and investigations of the Property as Buyer deems
necessary, including, but not limited to, the physical and
environmental conditions thereof, and shall rely upon same. By
failing to terminate this Agreement prior to the expiration of
the Due Diligence Period, Buyer acknowledges that Seller will
have afforded Buyer a full opportunity to conduct such
investigations of the Property as Buyer deemed necessary to
satisfy itself as to the condition of the Property and the
existence or non-existence or curative action to be taken with
respect to any
15
Hazardous Substances on or discharged from the Property, and will
rely solely upon same, other than such representations,
warranties and covenants of Seller as are expressly set forth in
this Agreement.
Buyer's Initials_____________________
7.6. Seller Released From Liability. Buyer acknowledges that it will
------------------------------
have the opportunity to inspect the Property during the Due
Diligence Period, and during such period, observe its physical
characteristics and existing conditions and the opportunity to
conduct such investigation and study on and of the Property and
adjacent areas as Buyer deems necessary, and Buyer hereby FOREVER
RELEASES AND DISCHARGES Seller from all responsibility and
liability regarding the condition (including the presence in the
soil, air, structures and surface and subsurface waters, of
materials or substances that have been or may in the future be
determined to be toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled
and/or removed from the Property under current or future federal,
state and local laws, regulations or guidelines), valuation,
salability or utility of the Property, or its suitability for any
purpose whatsoever. Buyer further hereby WAIVES (and by closing
this transaction will be deemed to have waived) any and all
objections to or complaints regarding (including, but not limited
to, federal, state and common law based actions), or any private
right of action under, state and federal law to which the
Property is or may be subject, including, but not limited to,
CERCLA, RCRA, physical characteristics and existing conditions,
including, without limitation, structural and geologic
conditions, subsurface soil and water conditions and solid and
hazardous waste and Hazardous Substances on, under, adjacent to
or otherwise affecting the Property. Buyer further hereby assumes
the risk of changes in applicable laws and regulations relating
to past, present and future environmental conditions on the
Property and the risk that adverse physical characteristics and
conditions, including, without limitation, the presence of
Hazardous Substances or other contaminants, may not have been
revealed by its investigation.
7.7. Hazardous Substances Defined. For purposes hereof, "Hazardous
---------------------------- ---------
Substances" means any hazardous, toxic or dangerous waste,
----------
substance or material, pollutant or contaminant, as defined for
purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601
et seq.), as amended ("CERCLA"), or any other federal, state or
-- --- ------
local law, ordinance, rule or regulation applicable to the
Property, or any substance which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or
otherwise hazardous, or any substance which contains gasoline,
diesel fuel or other petroleum hydrocarbons, polychlorinated
biphenyls (pcb's), radon gas, urea formaldehyde, asbestos, lead
or electromagnetic waves.
8. Buyer Representations, Warranties and Covenants.
-----------------------------------------------
8.1. Representations and Warranties. Buyer hereby represents and
------------------------------
warrants to Seller as of the date hereof and as of the Close of
Escrow by appropriate certificate that Buyer is a limited
liability company duly organized and validly existing under the
laws of the State of Virginia. Buyer has full power and authority
to enter into this Agreement, to perform this Agreement and to
consummate the transactions contemplated hereby. The
16
execution, delivery and performance of this Agreement and all
documents contemplated hereby by Buyer have been duly and validly
authorized by all necessary action on the part of Buyer and all
required consents and approvals have been duly obtained and will
not result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, agreement or
instrument to which Buyer is a party or otherwise bound. This
Agreement is a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject
to the effect of applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws
affecting the rights of creditors generally.
8.2. Covenants of Buyer. Buyer hereby covenants to deliver to Seller
------------------
five (5) business days before the end of the Due Diligence Period
the forms of SNDA and estoppel certificate that will be required
by Buyer and Buyer's lender. The forms of the SNDA and estoppel
certificate will be subject to the reasonable approval of Seller.
If Buyer and Seller are unable to agree upon the forms of either
or both of the SNDA and estoppel certificate before the end of
the Due Diligence Period, Seller may, for a period of five (5)
days after the end of the Due Diligence Period, elect to
terminate this Agreement by delivering written notice thereof to
Buyer and Escrow Holder. Upon receiving any such notice, Escrow
Holder shall return the Deposit to Buyer.
9. Conditions Precedent to the Close of Escrow.
-------------------------------------------
9.1. Conditions Precedent.
--------------------
The obligations of Buyer to purchase the Property pursuant to
this Agreement shall, at the option of Buyer, be subject to the
following conditions precedent:
9.1.1. All of the representations, warranties and agreements
of Seller set forth in this Agreement shall be true and
correct in all material respects as of the date hereof
and as of the Close of Escrow, and Seller shall not
have, on or prior to the Close of Escrow, failed to
meet, comply with or perform in any material respect
any covenants or agreements on Seller's part as
required by the terms of this Agreement.
9.1.2. There shall be no change in the matters reflected in
the Title Documents, and there shall not exist any
encumbrance or title defect affecting the Real Property
not described in the Title Documents except for the
Permitted Exceptions or matters to be satisfied at the
Close of Escrow.
9.1.3. Unless Seller receives notice from Buyer at least
thirty (30) days prior to the Close of Escrow,
effective as of the Close of Escrow, any management
agreement affecting the Real Property shall be
terminated by Seller and any and
17
all termination fees incurred as a result thereof shall
be the sole obligation of Seller.
9.1.4. No Major Tenant shall be in default under its lease nor
shall any Major Tenant have given notice to Seller that
it is discontinuing operations.
9.1.5. If Buyer's lender requires the execution of SNDA's from
Tenants as a condition to closing the loan to Buyer,
Buyer's obligations under this Agreement shall be
subject to the delivery of SNDA's in the form approved
by Buyer and Seller as described in Paragraph 8.2.
9.1.6. Seller shall have delivered the Required Percentage
Estoppels and estoppel certificates from all of the
Major Tenants in the form approved by Buyer and Seller
as described in Paragraph 8.2.
9.2. Effect of Failure.
-----------------
If Buyer notifies Seller of a failure to satisfy the conditions
precedent set forth in this Paragraph 9, Seller may, within five
(5) days after receipt of Buyer's notice, agree to satisfy the
condition by written notice to Buyer, and Buyer shall thereupon
be obligated to close the transaction provided (a) Seller so
satisfies such condition and (b) no such right to cure shall
extend the Close of Escrow. If Seller fails to agree to cure or
fails to cure such condition by the Close of Escrow, this
Agreement shall be automatically terminated, the Deposit shall be
returned to Buyer without any further action required from either
party and neither party shall have any continuing obligations
hereunder; provided, however, if such failure constitutes a
breach or default of its covenants, representations or
warranties, Seller shall remain liable for such breach or default
as otherwise set forth in this Agreement.
10. Damage or Destruction Prior to the Close of Escrow.
--------------------------------------------------
In the event that one or more buildings on the Real Property should be
damaged by any casualty prior to the Close of Escrow, then Seller shall
promptly provide Buyer with written notice of such casualty. If the cost of
repairing such damage, as estimated by an architect or contractor retained
pursuant to the mutual agreement of the parties, is (a) less than One
Hundred Thousand Dollars ($100,000.00) for each building damaged, the Close
of Escrow shall proceed as scheduled and any insurance proceeds, plus the
cash amount of any associated deductible, shall be paid over to Buyer; or
(b) greater than One Hundred Thousand Dollars ($100,000.00) for any
building damaged, then Buyer may in its discretion either (i) elect to
terminate this Agreement, in which case the Deposit shall be returned to
Buyer without any further action required from either party and neither
party shall have any further obligation to the other, or (ii) proceed to
the Close of Escrow, in which event any insurance proceeds, plus the cash
amount of any associated deductible, shall be paid over to Buyer. The
foregoing notwithstanding, if any
18
casualty results in the cancellation of, or rental abatement under, any
Lease, Buyer shall have the option to terminate this Agreement without
regard to the cost of repairs. Any notice required to terminate this
Agreement pursuant to this paragraph shall be delivered no later than
thirty (30) days following Buyer's receipt of Seller's notice of such
casualty.
11. Eminent Domain.
--------------
If, before the Close of Escrow, proceedings are commenced for the taking by
exercise of the power of eminent domain of all or a material part of the
Real Property which, as reasonably determined by Buyer, would render the
Real Property unacceptable to Buyer or unsuitable for Buyer's intended use,
Buyer shall have the right, by giving written notice to Seller within
thirty (30) days after Seller gives notice of the commencement of such
proceedings to Buyer, to terminate this Agreement, in which event this
Agreement shall automatically terminate, the Deposit shall be returned to
Buyer without any further action required from either party, and neither
party shall have any continuing obligations hereunder. If, before the Close
of Escrow, proceedings are commenced for the taking by exercise of the
power of eminent domain of less than a material part of the Real Property,
or if Buyer has the right to terminate this Agreement pursuant to the
preceding sentence but Buyer does not exercise such right, then this
Agreement shall remain in full force and effect and, on the Close of
Escrow, the condemnation award (or, if not theretofore received, the right
to receive such portion of the award) payable on account of the taking
shall be assigned, or paid to, Buyer. Seller shall give written notice to
Buyer within three (3) business days after Seller's receiving notice of the
commencement of any proceedings for the taking by exercise of the power of
eminent domain of all or any part of the Real Property.
12. Notices.
-------
All notices, demands, or other communications of any type given by any
party hereunder, whether required by this Agreement or in any way related
to the transaction contracted for herein, shall be void and of no effect
unless given in accordance with the provisions of this paragraph. All
notices shall be in writing and delivered to the person to whom the notice
is directed, either (a) in person, (b) by United States Mail, as a
registered or certified item, return receipt requested, (c) by telecopy or
(d) by a nationally recognized overnight delivery courier. Notices
delivered by telecopy or overnight courier shall be deemed received on the
business day following transmission. Notices delivered by certified or
registered mail shall be deemed delivered three (3) days following posting.
Notices shall be given to the following addresses:
19
Seller: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------ DT Partners Three Limited Partnership
▇▇▇▇▇ Partners, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
With Required Copy to: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- Mr. A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Wakefield, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
With Required Copy to: C. ▇▇▇ ▇▇▇▇▇▇, ▇▇., Esquire
--------------------- ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
Buyer: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----- Triple Net Properties, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
With Required Copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
--------------------- Hirschler, Fleischer, ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
20
13. Remedies
--------
13.1. Defaults by Seller. If there is any default by Seller under this
------------------
Agreement, following notice to Seller and seven (7) days
thereafter, during which period Seller may cure the default,
Buyer may, at its option, either (a) declare this Agreement
terminated in which case the Deposit shall be returned to Buyer
without any further action required from either party, Seller
shall reimburse Buyer for its due diligence costs (up to a
maximum of $15,000) and Buyer shall have no further claim against
Seller, or (b) treat the Agreement as being in full force and
effect and bring an action against Seller for specific
performance. The foregoing notwithstanding, no right to cure
shall extend the Close of Escrow.
13.2. Defaults by Buyer. Except as provided in Paragraph 2.1.2, if
-----------------
there is any default by Buyer under this Agreement, following
notice to Buyer and seven (7) days thereafter, during which
period Buyer may cure the default, Seller may, as its sole
remedy, declare this Agreement terminated, in which case the
Deposit shall be paid to Seller as liquidated damages. Following
any termination because of a default by Buyer (including pursuant
to Paragraph 2.1.2), upon receipt by Seller of the Deposit, each
party shall thereupon be relieved of all further obligations and
liabilities, except any which expressly survive termination. The
foregoing notwithstanding, no right to cure shall extend the
Close of Escrow.
14. Assignment.
----------
Buyer may assign any or all of its rights and obligations under this
Agreement to any one or more affiliates of Buyer upon notice to Seller;
provided, however, that absent the express agreement of Seller, no such
assignment shall release Buyer from its liabilities hereunder.
15. Interpretation and Applicable Law.
---------------------------------
This Agreement shall be construed and interpreted in accordance with the
laws of the State of California. Where required for proper interpretation,
words in the singular shall include the plural; the masculine gender shall
include the neuter and the feminine, and vice versa. The terms "successors
and assigns" shall include the heirs, administrators, executors,
successors, and assigns, as applicable, of any party hereto.
16. Amendment.
---------
This Agreement may not be modified or amended, except by an agreement in
writing signed by the parties. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder,
but any such waiver shall be effective only if in writing and signed by the
party waiving such conditions and obligations.
21
17. Attorneys' Fees.
---------------
In the event it becomes necessary for either party to file a suit to
enforce this Agreement or any provisions contained herein, the prevailing
party shall be entitled to recover, in addition to all other remedies or
damages, reasonable attorneys' fees and costs of court incurred in such
suit.
18. Entire Agreement; Survival.
--------------------------
This Agreement (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith. No
representation, warranty, covenant, agreement, or condition not expressed
in this Agreement shall be binding upon the parties hereto nor shall affect
or be effective to interpret, change, or restrict the provisions of this
Agreement. The obligations of the parties hereunder and all other
provisions of this Agreement shall survive the Close of Escrow or earlier
termination of this Agreement, except as expressly limited herein.
19. Counterparts.
------------
This Agreement may be executed in any number of counterparts, all of which
when taken together shall constitute the entire agreement of the parties.
20. Acceptance.
----------
Time is of the essence of this Agreement. If the final date of any period
falls upon a Saturday, Sunday, or legal holiday under the laws of the State
of California, then in such event the expiration date of such period shall
be extended to the next day which is not a Saturday, Sunday, or legal
holiday under the laws of the State of California.
21. Real Estate Commissions.
-----------------------
21.1. Commission to Triple Net Properties Realty, Inc. Seller shall pay
------------------------------------------------
a real estate brokerage commission of $580,000 to Triple Net
Properties Realty, Inc. if, but only if, the Close of Escrow
occurs pursuant to this Agreement. Such commission shall be
payable upon the Close of Escrow from the proceeds of the
Purchase Price deposited by Buyer.
21.2. Warranty and Indemnity. Seller and Buyer each represent and
----------------------
warrant to the other that neither Seller nor Buyer has contacted
or entered into any agreement with any real estate broker, agent,
finder or any other party in connection with this transaction,
and that neither party has taken any action which would result in
any real estate broker's, finder's or other fees or commissions
being due and payable to any party with respect to the
transaction contemplated hereby, except for the commission
payable to Triple Net Properties Realty, Inc. as provided in
Paragraph 21.1 and except that Seller has contracted with ▇▇▇▇▇▇▇
& Wakefield as its broker
22
and will pay a commission to such broker under a separate agreement. Each
party hereby indemnifies and agrees to hold the other party harmless from
any loss, liability, damage, cost, or expense (including reasonable
attorneys' fees) resulting to the other party by reason of a breach of the
representation and warranty made by such party in this paragraph.
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
23
SIGNATURE PAGE FOR PACIFIC CORPORATE PARK
PURCHASE AGREEMENT
EXECUTED on this 3rd day of October, 2001.
--- -------
SELLER:
-------
DT PARTNERS THREE LIMITED PARTNERSHIP
a Texas limited partnership
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signer
-----------------
EXECUTED on this 1st day of Oct, 2001.
--- ---
BUYER:
-----
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
24
SIGNATURE PAGE FOR PACIFIC CORPORATE PARK
PURCHASE AGREEMENT
EXECUTED on this day of , 2001.
--- -------
SELLER:
-------
DT PARTNERS THREE LIMITED PARTNERSHIP
a Texas limited partnership
By:n
-------------------------------
n
Title:r
-----------------
EXECUTED on this day of , 2001.
--- ---
BUYER:
-----
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By:
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
25
EXHIBIT A
---------
LEGAL DESCRIPTION OF REAL PROPERTY
----------------------------------
DESCRIPTION
▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, AS SHOWN ON A MAP FILED IN BOOK 679, PAGES 15 TO 23
INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING FROM A PORTION OF SAID LAND, ANY AND ALL MINERALS LOCATED WITHIN THE
REAL PROPERTY HEREINAFTER DESCRIBED, INCLUDING WITHOUT LIMITATION, ALL OIL, GAS,
HYDROCARBON AND SIMILAR RIGHTS, AND ALL WATER, WATER RIGHTS, GEOTHERMAL STEAM
AND STEAM POWER WITHIN OR UNDERLYING SUCH REAL PROPERTY, TOGETHER WITH THE
PERPETUAL RIGHT OF DEVELOPMENT THEREOF, PROVIDED, HOWEVER, THAT THE RIGHTS
HEREIN CONVEYED DO NOT INCLUDE THE RIGHT TO ENTER UPON THE SURFACE AND TOP 500
FEET OF THE SUBSURFACE OF SUCH REAL PROPERTY, AS PROVIDED IN DEED TO SIGNAL
PROPERTIES, INC., A CALIFORNIA CORPORATION, AN UNDIVIDED ONE-HALF INTEREST
RECORDED JULY 3, 1979 IN BOOK 13215, PAGE 646 AND TO EASTWOOD MINERALS AND
ENERGY COMPANY, A CALIFORNIA CORPORATION, AN UNDIVIDED ONE-HALF INTEREST,
RECORDED JULY 3, 1979 IN BOOK 13215, PAGE 649, BOTH OF OFFICIAL RECORDS.
ALSO EXCEPTING FROM THE REMAINDER OF SAID LAND, ALL OIL, GAS, OTHER
HYDROCARBONS AND OTHER MINERALS IN AND TO SAID REAL PROPERTY IN WHICH GRANTOR
PRESENTLY OWNS OR MAY OBTAIN AN INTEREST, TOGETHER WITH THE RIGHT AS HEREINAFTER
LIMITED, TO DRILL, REDRILL, DEEPEN, COMPLETE AND MAINTAIN WELL HOLES, UNDER,
THROUGH AND BEYOND AND TO DRILL FOR, PRODUCE, EXTRACT, TAKE AND REMOVE OIL, GAS
AND OTHER HYDROCARBON SUBSTANCES (AND WATER NECESSARY THEREFOR), AND OTHER
MINERALS FROM AND THROUGH SAID REAL PROPERTY, TOGETHER WITH RIGHTS OF WAY AND
EASEMENTS FOR ANY AND ALL OF THE ABOVE MENTIONED PURPOSES, BUT WITH NO RIGHT OF
ENTRY UPON OR THROUGH SAID REAL PROPERTY, EXCEPT BENEATH A DEPTH OF 900 FEET
BELOW THE PRESENT SURFACE OF THE SAID REAL PROPERTY, AS RESERVED BY THE ROMAN
CATHOLIC ARCHBISHOP OF LOS ANGELES, A CORPORATION SOLE, BY DEED RECORDED JUNE
23, 1976 IN BOOK 11784, PAGE 827 OF OFFICIAL RECORDS.
EXHIBIT B
---------
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
Pacific Corporate Park, Lake Forest, California
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of the day of ,
---- ------
2001, by and between DT PARTNERS THREE LIMITED PARTNERSHIP, a Texas limited
partnership ("Assignor"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited
--------
liability company ("Assignee").
--------
W I T N E S S E T H:
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby sells, transfers, assigns and conveys to Assignee the
following:
a. All right, title and interest of Assignor in and to those certain
leases, and associated amendments, described on Exhibit A attached hereto and
---------
made a part hereof (the "Tenant Leases"), relating to the leasing of space in
-------------
that certain land and improvements in the County of Orange, State of California,
as more particularly described in Exhibit B attached hereto and made a part
---------
hereof (the "Real Property") and all of the rights, interests, benefits and
-------------
privileges of the lessor thereunder, and to the extent Assignee has not received
a credit therefor under the Purchase Agreement (as defined below), all prepaid
rents and security and other deposits held by Assignor under the Tenant Leases
and not credited or returned to tenants, but subject to all terms, conditions,
reservations and limitations set forth in the Tenant Leases.
c. To the extent assignable, all right, title and interest of Assignor
in and to those certain contracts set forth on Exhibit C attached hereto and
---------
made a part hereof, and all agreements, warranties and guaranties relating to
the operation, use or maintenance of the Real Property, and all indemnities and
claims (including, without limitation, for workmanship, materials and
performance) which exist or may hereafter exist against any contractor,
subcontractor, manufacturer or supplier or laborer or other services relating
thereto (collectively, the "Contracts").
---------
d. To the extent assignable, all right, title and interest of Assignor
in and to those building permits, certificates of occupancy and other
certificates, permits, licenses and approvals set forth on Exhibit D attached
---------
hereto and made a part hereof, and all documentation (complete or incomplete) of
Seller relating to the parcelization of the Real Property (the "Permits").
-------
2. This Assignment and Assumption Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Real Property and Escrow Instructions
( the "Purchase Agreement") dated as of , 2001, between Assignor and
------------------ ------------
Assignee, providing for, among other things, the conveyance of the Tenant
Leases, the Contracts, and the Permits.
3. As set forth in Article 7 of the Purchase Agreement, which is hereby
---------
incorporated by reference as if herein set out in full and except as set forth
herein, the property conveyed hereunder is conveyed by Assignor and accepted by
Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE,
EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY
D-939793
Pacific Corporate Park
Assignment and Assumption Agreement - p.1
-----------------------------------
SET FORTH IN THE PURCHASE AGREEMENT, IT BEING THE INTENTION OF ASSIGNOR AND
ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR
BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL
THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE
CALIFORNIA UNIFORM COMMERCIAL CODE.
4. Assignee hereby accepts the assignment of the Tenant Leases, the
Contracts and the Permits and agrees to assume and discharge, in accordance with
the terms thereof, all of the obligations thereunder from and after the date
hereof. Additionally, but without limiting the generality of the foregoing,
Assignee agrees to assume and discharge all leasing commissions, costs for
tenant improvements, legal fees and other costs and expenses incurred with
respect to the Tenant Leases and renewals and extensions of the Tenant Leases
executed subsequent to the Effective Date of the Agreement and those set forth
on Exhibit E attached hereto.
---------
5. This Assignment and Assumption Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
D-939793
Pacific Corporate Park
Assignment and Assumption Agreement - p.2
-----------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the date first above written.
ASSIGNOR:
--------
DT PARTNERS THREE LIMITED PARTNERSHIP,
a Texas limited partnership
By: ▇▇▇▇▇ PACIFIC TECH PARTNERS,
a California general partnership,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title: General Partner
ASSIGNEE:
---------
TRIPLE NET PROPERTIES, LLC,
---------------------------
a Virginia limited liability company
By:
-----------------------------------------
Name:
----------------------------------------
Title:
--------------------------------------
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
Exhibit A Tenant Leases
Exhibit B Real Property
Exhibit C Contracts
Exhibit D Permits
Exhibit E Lease Costs and Expenses
D-939793
Pacific Corporate Park
Assignment and Assumption Agreement - p.3
-----------------------------------
EXHIBIT C
---------
GRANT DEED
----------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[LOGO] Commonwealth
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
THIS SPACE FOR RECORDER'S USE ONLY:
--------------------------------------------------------------------------------
Title Order No.: Escrow No.:
GRANT DEED
--------------------------------------------------------------------------------
THE UNDERSIGNED GRANTOR(S) DECLARE(S)
DOCUMENTARY TRANSFER TAX is $ CITY TRANSFER TAX $
---------- ----------
[X] computed on full value of property conveyed, or
[ ] computed on full value less value of liens or encumbrances remaining at
time of sale.
[ ] Unincorporated area [X] City of Lake Forest AND
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
DT PARTNERS THREE LIMITED PARTNERSHIP
A Texas limited partnership
hereby GRANT(s) to:
TRIPLE NET PROPERTIES, LLC
A Virginia limited liability company
the real property in the City of Lake Forest, County of Orange, State of
California, described as:
LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A" AND MADE A PART HEREOF
Also Known as: Pacific Corporate Park
A.P. #
DATED , 2001
---------------
STATE OF CALIFORNIA
COUNTY OF
--------------------------------------------------------
On
---------------------------------------------------------------
Before me,
-------------------------------------------------------
A Notary Public in and for said State, personally appeared
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument. WITNESS my hand and
official seal.
Signature (This area for official notarial seal)
------------------------------
MAIL TAX STATEMENTS TO PARTY SHOWN BELOW; IF NO PARTY SHOWN, MAIL AS DIRECTED
ABOVE:
--------------------------------------------------------------------------------
EXHIBIT D
---------
CERTIFICATE OF NON-FOREIGN STATUS
---------------------------------
CERTIFICATION OF NON-FOREIGN STATUS
-----------------------------------
Pacific Corporate Park, Lake Forest, California
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee, TRIPLE NET PROPERTIES, LLC, a Virginia
limited liability company, that withholding tax is not required upon the
disposition of a United States real property interest by DT PARTNERS THREE
LIMITED PARTNERSHIP, a Texas limited partnership ("Seller"), the undersigned
------
hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust,
or foreign estate (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations promulgated pursuant thereto);
2. Seller's United States Employer Identification Number is ; and
----------
3. Seller's office address is c/o Davis Partners, Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Seller understands that this Certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
Certification and, to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of Seller.
EXECUTED this day of , 2000.
---- --------
SELLER:
------
DT PARTNERS THREE LIMITED PARTNERSHIP,
a Texas limited partnership
By: ▇▇▇▇▇ PACIFIC TECH PARTNERS,
a California general partnership,
its general partner
By:
-------------------------------
Name:
-----------------------------
Title: General Partner
D-939791
Pacific Corporate Park
Certification of Non-Foreign Status
-----------------------------------
EXHIBIT E
---------
FTB FORM 590
------------
YEAR CALIFORNIA FORM
----
2001 Withholding Exemption Certificate [Illegible]
Nonresident Waiver Request for Real Estate Sales 597W
------------------------------------------------------------------------------------------------------------------------------------
Part 1 Seller's Information
------------------------------------------------------------------------------------------------------------------------------------
Name Social Security Number/California Corporation No./▇▇▇▇
▇▇ Partner's Three Limited Partnership - -
------------------------------------------------------------------------------------------------------------------------------------
Street Adress PMB No.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
City, State, ZIP Code Phone Number Ownership Percentage
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇)▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Property Address (if no street address, provide parcel number and county)
25341, 25351, 25361, 25371, 25381 and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Buyer's Information
------------------------------------------------------------------------------------------------------------------------------------
Name Social Security Number/California Corporation No./FEIN
Triple Net Properties, LLC - -
------------------------------------------------------------------------------------------------------------------------------------
Street Address PMB No.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
City, State, ZIP Code Phone Number
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
If there is more than one seller, attach a separate sheet listing additional seller's information.
Read the following and check the boxes as they apply to the seller (see General Information C, Exemptions from Withholding (Part I)
for definitions and details for each area):
YES NO
1) Is the total sales price of this property $100,000.00 or less? [ ] [X]
2) Are you a resident of California? [ ] [X]
3) Does the property being sold qualify as your principal residence? [ ] [X]
4) Are you a corporation registered in California or that has a permanent place of business in California? [ ] [X]
5) Are you a partnership or a limited liability company with recorded title to the property in the name
of the partnership or limited liability company? [X] [ ]
6) Are you a tax-exempt entity? [ ] [X]
7) Are you an irrevocable trust with at least one trustee who is a California resident? [ ] [X]
8) Are you an estate where the decedent was a California resident at the time of death? [ ] [X]
9) Are you a bank or a bank acting as a fiduciary for a trust? [ ] [X]
10) Are you an insurance company, ▇▇▇, or qualified pension/profit sharing plan? [ ] [X]
Under penalties of perjury, I hereby certify that the information provided above is, to the best of my knowledge, true and correct.
If conditions change, I will promptly inform the withholding agent. I understand that completing this form does not exempt me from
filing a California income tax return to report this sale.
--------------------------------------------------------------------------------------------------------- -------------
Seller's Signature Date
If you answered "YES" to any of the above questions, STOP HERE. You are exempt from the nonresident withholding requirements.
Provide this form to your escrow company or the buyer (withholding agent).
If you answered "NO" to all of the above questions, you are subject to the nonresident withholding requirements. The required
withholding is 3 1/3% of the total sales price. Do you believe that your estimated tax liability from the sale of your property
will be less than the required withholding amount?
[ ] Yes. Complete the Waiver Request Section on Side 2 and send this form to the Franchise Tax Board.
[ ] No. STOP HERE. Your escrow person will withhold 3 1/3% of the total sales price and send it to the Franchise Tax Board
on your behalf. Obtain the seller's copy of Form 597, Nonresident Withholding Tax Statement for Real Estate Sales,
to attach your California income tax return when you file and claim the withholding amount.
--------------------------------------------------------------------------------
Nonresident Withholding Waiver Request
--------------------------------------
State in detail your reason for requesting a withholding waiver or reduced
withholding. Attach additional sheets, if needed. The Franchise Tax Board (FTB)
cannot make a determination on your request unless you provide all required
information and documentation. See instructions.
------------------------------------------------------------------------------------------------------------------------------------
Part II Property Information Escrow Information
------------------------------------------------------------------------------------------------------------------------------------
Date Seller Acquired: Name and Address of Escrow Company:
---------------------------------------------------------------------------
Seller Acquired Property By (check one):
[ ] Purchase [ ] Inheritance [ ] Foreclosure/Repossession COMMONWEALTH LAND TITLE COMPANY
[ ] Gift [ ] 1031 Exchange call (▇▇▇) ▇▇▇-▇▇▇▇ U.S. toll-free ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
or (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[ ] Other
-------------------
------------------------------------------------------------------------------------------------------------------------------------
Use of Property at time of sale: Length of the time Used for this purpose Name of Escrow Officer: Escrow Number:
[ ] Rental/Commercial
[ ] Secondary/Vacation Home Years Months ▇▇▇▇▇▇▇ Mesh, CSEO 000011-RB
[ ] Other (attach explanation) ------------- -------------
------------------------------------------------------------------------------------------------------------------------------------
Seller's Adjusted Basis: Escrow Telephone Number: Escrow FAX Number:
Purchase Price $ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
---------------
Add Improvements ------------------------------------------------------
---------------- Contract Price Estimated Close of Escrow
Lease: Depreciation (total sales price):
---------------- Date:
Adjusted Basis $
---------------- $9,100,000.00 March 18, 2002
Provide all required documentation listed in the Instructions. Attach any
documents necessary to verify the adjusted basis.
------------------------------------------------------------------------------------------------------------------------------------
Instructions for Form 597-W
Withholding Exemption Certificate and Nonresident Waiver Request for Real Estate
Sales
References in these instructions are to the Internal Revenue Code (IRC) as of
January 1, 1998, and the California Revenue and taxation Code (R&TC)
--------------------------------------------------------------------------------
General Information
-------------------
Form 597-W, Withholding Exemption Certificate and Nonresident Waiver Request for
Real Estate Sales, replaces Form 590-RE, Withholding Exemption Certificate for
Real Estate Sales and Form 597-A, Nonresident Waiver Request for Real Estate
Sales.
Requirement to File a California Tax Return
A completed Form 597-W relieves the buyer of the requirement to withhold but
does not eliminate the requirement that the seller must file a California tax
return and pay the tax due.
Private Mailbox (PMB) Number
If you lease a mailbox from a private business rather than from the United
States Postal Service, enter your PMB number in the field labeled "PMB no."
Preparer Tax Identification Number (PTIN)
Tax preparers now have the option of using a unique identification number (PTIN)
instead of a social security number when signing tax returns.
A Purpose
When California real estate is sold by a nonresident, buyers are required by law
(R&TC Section 18662) to withhold 3 1/3% of the total sales price unless a
withholding exemption is met or the Franchise Tax Board (FTB) authorized a
waiver of reduction in the withholding amount.
.. Use Part I of Form 597-W to certify that you meet a withholding exemption
for the sale of California real estate, or;
.. Use Part II of Form 597-W to request a waiver or reduction of the required
withholding for the sale of California real estate.
B What is Real Estate Withholding?
Real Estate withholding:
.. Is a prepayment of the amount of income tax due from the gain on the sale
of California real estate;
.. Is not an additional tax on the sale of real estate;
..
.. Is primarily intended to ensure that the income tax owed on the taxable
gain from the sale will be paid;
.. Reduces the likelihood that the seller will be subject to penalties for
underpayment of estimated tax; and
.. Is similar to wage withholding. As with wage withholding, the amount
withheld is claimed as a credit against the income tax liability computed
at the end of the taxable year.
If the amount withheld is more than the income tax liability, the difference
will be refunded when a tax return is filed after the end of the taxable year.
--------------------------------------------------------------------------------
C Exemptions from Witholding (Part I)
The seller is exempt from the withholding requirements if they have answered
"Yes" to any of the questions in Part I. The completed Form 597-W should be
signed by the seller and given to the buyer or other withholding agent. The
buyer, or other withholding agent, should retain the form for five years
following the close of the transaction. The buyer, or other withholding agent,
will be relieved of the real estate withholding requirements if the buyer relies
in good faith on a completed and signed Form 597-W. A completed 597-W certifying
an exemption of withholding does not eliminate the requirement that the seller
must file a California income tax return and pay the tax due.
The seller should answer "Yes" in Part I when:
1 The total sales price of the California real property is $100,000.00 or
-----
less.
2 The seller is a California resident on the date escrow closes. A California
resident is any individual who is in California for other than a temporary
or transitory purpose or any individual domiciled in California who is
absent for a temporary or transitory purpose. Sellers who are uncertain of
their residency status can get assistance by calling the FTB at (800)
852-5711, or by getting FTB Pub 1031, Guidelines for Determining Resident
Status, for more information.
3. The property qualifies as the seller's principal residence under IRC
Section 121. The home in which you live is your principal residence. You
can only have one principal residence at a time. If you have two homes and
live in both of them, the principal residence is the one you lived in most
of the time. Even though you do not currently live in the property, it may
still qualify as your principal residence for the purpose of the
withholding exemption. An example is a former California resident who moved
out of state prior to the close of escrow. The property can qualify for the
withholding exemption if the seller still considers it to be the principal
residence, or if it qualifies for the exclusion of income under IRC Section
121. An individual can exclude up to $250,000.00 (up to $500,000 for a
married couple) of the gain on the sale of a principal residence. Sellers
can qualify for this exclusion if, during the 5-year period ending on the
date of the sale they owned and lived in the property as their principal
residence for at least 2 years. For examples and more details, get federal
Publication 523, Selling your Home, by accessing the Internal Revenue
Service's (IRS) website at ▇▇▇.▇▇▇.▇▇▇ or by calling the IRS AT (800)
829-3676.
4. The seller is a corporation that is registered in California or has a
permanent place of business in California immediately after the transfer. A
corporation has a permanent place of business in California if it is
organized and existing under the laws of California or it is a foreign
corporation qualified to transact intrastate business by the California
Secretary of State's Office. A corporation that has not qualified to
transact intrastate business, such as a corporation engaged exclusively in
interstate commerce, will be considered as having a permanent place of
business in California only if it maintains a permanent office in
California and the office is permanently staffed by its employees.
5. The seller is a partnership of LLC and the recorded title to the property
is in the name of the partnership of LLC. A partnership includes a
syndicate, group pool, joint venture, or other unincorporated organization
through which business operation is carried on and which is not a
corporation, trust, or estate. A partnership of LLC may be required to
withhold on distributions of California course income to nonresident
partners or members. For more information, get FTB Pub 1017, Nonresident
Withholding - Partnership Guidelines.
6. The seller is exempt from tax under either California or federal law.
7. The seller is a California irrevocable trust. For withholding purposes, an
irrevocable trust is considered a California trust if at least one trustee
is a California resident. Irrevocable trusts are required to withhold on
distributions of California source income to their nonresident
beneficiaries. Note: If the seller is a irrevocable/grantor trust and one
or more of the grantors is a nonresident, withholding is required. If all
of the grantors of a revocable/grantor trust are residents of California,
no withholding is required.
8. The seller is a California estate. For withholding purposes, an estate is
considered a California estate if the decedent was a California resident at
the time of death. Estates are required to withhold on distributions of
California source income to their nonresident beneficiaries.
9. The seller is a bank or a bank acting as the fiduciary for a trust.
10. The seller is an insurance company or a federally qualified pension or
profit-sharing plan.
D Nonresident Withholding Waiver Request (Part II)
This section should be completed if you do not meet any of the exemptions to
withholding as shown in Part I and you believe that your estimated tax liability
from the sale will be less than the required withholding.
Waiver requests are handled on a case-by-case basis. Generally, the FTB will
reduce or eliminate the withholding amount when:
.. The 3 1/3% withholding amount exceeds the estimated California tax
liability from the sale; for example:
Selling Price $250,000.00
Withholding Rate x 3.33%
Witholding Amount $ 8,325.00
Gain on Sale $ 50,000.00
Maximum Tax Rate 9.3%
Estimated Tax Liability $ 4,650.00
* The maximum tax rates are 9.3% for individuals and 8.84% for
corporations.
In this example, the withholding amount would be reduced to $4,650. If the
documentation provided shows that the estimated tax liability will be $0 from
the sale, a full waiver will be granted.
.. The transaction involves an IRC Section 1031 exchange, a foreclosure, or an
installment sale; or
.. The transaction involves multiple sellers, some of whom are nonresidents of
California.
Note: The withholding amounts is 3 1/3% of the total sales price regardless of
the percentage of interest owned in the property.
To receive a prompt determination, include all required information and
documentation to support your request. Failure to include the required
information, signatures and documents can result in either a delay or denial of
your request. Below is a list of the minimum documentation required for the FTB
to make a determination. Do not send original documentation.
This is general guide. Additional information may be requested on a case-by-case
basis.
.. Loss of Small Gain
[ ] The current sales escrow document (estimated closing statement, sales
contract, or closing statement).
[ ] Purchase escrow document (closing statement) from the original transaction.
[ ] List of any improvements and related costs.
.. Inherited Property
[ ] The current sales escrow department (estimated closing statement, sales
contract, or closing statement).
[ ] The court documents showing the fair market value of the property at the
time of inheritance, or the death certificate if the death occurred less
than one year ago.
If the property was inherited more than two years ago, also:
[ ] State whether the property was a rental. If yes, state how long it was
rental property.
--------------------------------------------------------------------------------
[ ] List any improvements since the date of inheritance and related costs.
.. IRC Section 1031 Exchange
[ ] Completed and signed California Form 597-E. Nonresident Withholding
Exchange Affidavit.
[ ] The current sales escrow document (estimated closing statement, sales
contract, or closing statement).
[ ] On Form 597-E indicate the basis of the property being sold.
[ ] On Form 597-E indicate the state where the replacement property is located.
.. Installment Sales
[ ] Completed and signed California Form 597-I Nonresident Withholding
Installment Sale Agreement.
[ ] The current sales escrow document (estimated closing statement, sales
contract, or closing statement).
[ ] Purchase escrow document (closing statement) from the original transaction.
[ ] The note agreement
[ ] List of any improvements and related costs.
.. Reacquired Property (Foreclosure or Repossession)
[ ] The current sales escrow document (estimated closing statement, sales
contract or closing statement).
[ ] The original sales escrow document from the first time you sold the
property prior to foreclosure.
[ ] The original purchase escrow document (closing statement) from when you
originally purchased the property.
[ ] Statement of the amount of cash (down payment) received on the original
sale prior to foreclosure.
[ ] Statement of the amount of notes received or carried prior to foreclosure.
Provide a copy of the note carried.
[ ] Statement of the balance due remaining on the note.
[ ] List of any improvements and related costs.
[ ] The calculation of the gain from the original sale.
[ ] A copy of federal Form 6252, Installment Sale Income, or California form
FTB 3805E, Installment Sale Income, filed with your tax return in the year
of the original sale.
[ ] Deed in lieu of foreclosure or trustee's deed upon sale.
E When to File This Form
When requesting a waiver or reduction in withholding, the Form 597-W should be
completed and sent to the FTB as soon as you enter into a contract of sale.
The FTB will determine if the withholding should be eliminated, reduced or if
the request should be denied. The FTB usually processes applications within 45
days after receipt of all necessary information. If a response from the FTB has
not been received by the time title is transferred, the parties to the
transaction may direct the escrow person to hold funds for withholding in trust
up to 45 days from the date title is transferred.
If Form 597-W is not filed timely with the FTB and title passes to the
buyer/transferee before the application can be processed, withholding of 3 1/3%
of the total sales price is required. There is no provision to authorize an
early refund after title has passed to the buyer/transferee and the withholding
has been remitted to the FTB.
Any withholding waiver issued by the FTB applies only for the limited purpose of
determining the withholding obligation under R&TC Section 18662. The withholding
waiver would not apply for other issues that may arise in connection with the
transfer. The FTB may accept evidence submitted with a waiver request for the
purpose of issuing the withholding waiver; however, this evidence may not be
adequate for other issues related to the transfer.
If you receive a determination letter from the FTB reducing the amount of
withholding, you must enter confirmation number from the FTB determination
letter on Form 597, Nonresident Withholding Tax Statement for Real Estate Sales,
when payment is sent to the FTB. Payment must be sent with Form 597.
F Where to File This Form
If you meet one of the exemptions to withholding in Part I, the form should not
be sent to the FTB. The Form 597-W should be given to the buyer or escrow
company. Be sure to sign the form to certify that you meet the exemption.
If you are requesting a waiver or reduction in the withholding (and do not meet
one of the exemptions in Part I, the completed Form 597-W should be filed with
the FTB to request an authorized determination. Fax Form 597-W to (▇▇▇) ▇▇▇-▇▇▇▇
or mail to:
NONRESIDENT WITHHOLD SECTION
FRANCHISE TAX BOARD
P. 0. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If you send you request by fax, do not send the original request by mail.
Please wait 10 working days after faxing your request and 13 working days after
mailing before contacting us.
G Additional Information
To order California Tax Forms not related to nonresident withhold or for more
information you may contact us:
By internet: If you have access you may download, view and print California tax
forms and publications. Go to our website at:
▇▇▇.▇▇▇.▇▇.▇▇▇
By automated phone service: Use this service to order 1997, 1998, and 1999
California tax forms and federal forms.
Have paper and pencil ready to take notes.
From within the
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(toll-free)
From outside the
United States..................(▇▇▇) ▇▇▇-▇▇▇▇
(not toll-free)
Follow the recorded instructions. This service is available 24 hours a day,
seven days a week.
By mail: Please allow two weeks to receive your order. If you live outside of
California, please allow three weeks to receive your order. Write to:
TAX FORMS REQUEST UNIT
FRANCHISE TAX BOARD
P. O. ▇▇▇ ▇▇▇
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In Person: Most libraries, post offices and banks provide free California
personal income tax booklets during the filing season. Many libraries and some
quick print businesses have forms and schedules for you to photocopy (you may
have to pay a nominal fee). Note that employees at libraries, post offices,
banks and quick print businesses cannot provide tax information or assistance.
Assistance for persons with disabilities: The FTB complies with provisions of
the American with Disabilities Act. Persons with hearing or speech impairments,
call:
From voice phone...................(▇▇▇) ▇▇▇-▇▇▇▇
(California Relay Service)
From TTY/TDD.......................(▇▇▇) ▇▇▇-▇▇▇▇
(Direct line to FTB customer Service)
For all other assistance or special accommodations, call (▇▇▇) ▇▇▇-▇▇▇▇.
EXHIBIT F
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▇▇▇▇ OF SALE
------------
▇▇▇▇ OF SALE
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Pacific Corporate Park, Lake Forest, California
THIS ▇▇▇▇ OF SALE is made as of the day of , 2001, by and
---- -------------
between DT PARTNERS THREE LIMITED PARTNERSHIP, a Texas limited partnership
("Seller"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
------
("Buyer").
-----
W I T N E S S E T H:
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Seller hereby sells, transfers, assigns and conveys to Buyer all right,
title and interest of Seller in and to all tangible and intangible personal
property ("Personalty") set forth in the inventory on Exhibit A attached hereto
---------- ---------
and made a part hereof, and located on and used in connection with that certain
land and improvements located in the County of Orange, State of California, as
more particularly described in Exhibit B attached hereto and make a part hereof
---------
("Real Property"), including, specifically, without limitation, equipment,
-------------
furniture, tools and supplies, and all related intangibles including Seller's
interest in the name "Pacific Corporate Park."
2. This ▇▇▇▇ of Sale is given pursuant to that certain Agreement for
Purchase and Sale of Real Property and Escrow Instructions (the "Purchase
--------
Agreement") dated as of , 2001, between Seller and Buyer, providing
--------- ----------
for, among other things, the conveyance of the Personalty.
3. As set forth in Article 7 of the Purchase Agreement, which is hereby
---------
incorporated by reference as if herein set out in full and except as set forth
herein, the property conveyed hereunder is conveyed by Seller and accepted by
Buyer AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE, EXPRESS
OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT, IT BEING
THE INTENTION OF SELLER AND BUYER EXPRESSLY TO NEGATE AND EXCLUDE ALL
WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY
ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY
CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES
WHATSOEVER CONTAINED IN OR CREATED BY THE CALIFORNIA UNIFORM COMMERCIAL CODE.
4. This ▇▇▇▇ of Sale may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this ▇▇▇▇ of Sale
as of the date first above written.
SELLER:
------
DT PARTNERS THREE LIMITED PARTNERSHIP,
a Texas limited partnership
By: ▇▇▇▇▇ PACIFIC TECH PARTNERS,
a California general partnership,
its general partner
By:
------------------------------
Name:
----------------------------
Title: General Partner
BUYER:
-----
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
Exhibit A Personalty
Exhibit B Real Property
D-939798
Pacific Corporate ▇▇▇▇
▇▇▇▇ of Sale - p.2
------------
EXHIBIT G
---------
NOTICE TO TENANTS
-----------------
NOTICE TO TENANTS
-----------------
Pacific Corporate Park, Lake Forest, California
, 2001
------------------
---------------------------
---------------------------
---------------------------
RE: Your Lease ("Lease") in Pacific Corporate Park, Lake Forest, California
-----
(the "Property"), Unit No.
-------- ----------
Dear Tenant:
You are hereby notified that DT PARTNERS THREE LIMITED PARTNERSHIP ("Seller"),
------
as owner of the Property and the current owner of the landlord's interest in
your Lease, has sold the Property to TRIPLE NET PROPERTIES, LLC, a Virginia
limited liability company ("New Owner"), as of the date set forth in this
---------
letter, and in connection with such sale, Seller has assigned and transferred
its interest in the Lease and any and all security deposits thereunder or
relating thereto to New Owner, and New Owner has assumed and agreed to perform
all of the landlord's obligations under the Lease (including any obligations set
forth in the Lease to repay or account for any security deposits thereunder from
and after such date) arising after the date hereof.
Accordingly, (a) all of your obligations under the Lease from and after
the date of this Tenant Notice, including your obligation to pay rent, shall be
performable to and for the benefit of New Owner, its successors and assigns, and
(b) all of the obligations of the landlord under the Lease, including any
obligations to repay or account for any security deposits thereunder, from and
after the date of this Tenant Notice, shall be the binding obligation of New
Owner and its successors and assigns. The amount of the security deposit
received by New Owner and being held by New Owner with respect to your Lease is
$ .
-------------
Unless and until you are otherwise notified in writing by New Owner, the address
of New Owner for all purposes under your Lease (including the recoupment of any
security deposits, and the giving of any notices provided for in your lease) is
as follows:
Triple Net Properties, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
D-941034
Pacific Corporate Park
Notice to Tenants - p.1
-----------------
SELLER:
-------
DT PARTNERS THREE LIMITED PARTNERSHIP,
a Texas limited partnership
By: DAVIS PACIFIC TECH PARTNERS.,
a California general partnership,
its general partner
By:
--------------------------------------
Name:
------------------------------------
Title: General Partner
NEW OWNER:
---------
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By:
---------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
D-941034
Pacific Corporate Park
Notice to Tenants - p.2
-----------------
ASSIGNMENT OF CONTRACT
THIS ASSIGNMENT OF CONTRACT (the "Assignment") is made as of the day of
----
March, 2002, by TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
("Assignor") to NNN PACIFIC CORPORATE PARK 1, LLC, a Virginia limited liability
company ("Park 1") and to NNN PACIFIC CORPORATE PARK VF, LLC, a Virginia limited
liability company ("Park VF" and together with Park l, the "Assignee").
RECITALS
--------
Assignor entered into that certain Agreement for Purchase and Sale of Real
Property and Escrow Instructions dated September , 2001, as amended with DT
----
Partners Three Limited Partnership (the "Contract") with respect to certain
property known as the Pacific Corporate Center in Orange County, California (the
"Property"). Assignor desires to assign all of its rights, title and interest in
and to the Contract to Assignee.
AGREEMENT
---------
FOR and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby assigns all of its rights, title and interest in and to the
Contract to Assignee.
Assignee by its execution of this Assignment hereby assumes all of
Assignor's obligations under the Contract.
WITNESS the following signatures:
ASSIGNOR: TRIPLE NET PROPERTIES, LLC
By: Illegible
-------------------------------------
Its: President
------------------------------------
ASSIGNEE: NNN PACIFIC CORPORATE PARK l, LLC
By: Triple Net Properties, LLC,
Its Manager
By: Illegible
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NNN PACIFIC CORPORATE PARK VF, LLC
By: Triple Net Properties, LLC,
Its Manager
By: Illegible
--------------------------------
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2