Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is entered into as of the
Effective Date (as herein defined) between TCP RENAISSANCE PARTNERS, L.P.
("SELLER") and SOUTHWEST BANK OF TEXAS, N.A. ("PURCHASER").
W I T N E S S E T H:
In consideration of the mutual covenants set forth herein and in
consideration of the ▇▇▇▇▇▇▇ money deposit herein called for, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. SALE AND PURCHASE. Seller shall sell, convey, and assign to
Purchaser, and Purchaser shall purchase and accept from Seller, for the Purchase
Price (hereinafter defined) and on and subject to the terms and conditions
herein set forth, the following:
(a) The tract or parcel of land situated at 1801 Main, in the City of
Houston, ▇▇▇▇▇▇ County, Texas, as more particularly described in EXHIBIT
"A" hereto (the "OFFICE BUILDING PROPERTY"), and the leasehold estate in
and to that certain tract of land situated in ▇▇▇▇▇▇ County, Texas, which
is more particularly described on EXHIBIT "A-1" hereto (the "GROUND LEASE
PROPERTY") and created pursuant to that certain Indenture of Lease with
Options to Purchase (the "GROUND LEASE") dated November 14, 1963, between
the ▇▇▇▇▇▇▇ Foundation and Nineteen Hundred Main Corporation, together with
all rights and interests appurtenant thereto, including all of Seller's
right, title, and interest in and to adjacent streets, alleys,
rights-of-way, and any adjacent strips or gores of real estate (the Office
Building Property and the Ground Lease Property herein being collectively
called the "LAND"); all improvements located in or on the Land, including
without limitation the office building commonly known as the 1801 Main
Building containing approximately 219,052 "net rentable" square feet of
office space, the parking facilities and related improvements and fixtures
(the "IMPROVEMENTS" and, separately, those located on the Ground Lease
Property being herein called the "GROUND LEASE IMPROVEMENTS"); and all
rights, titles, and interests appurtenant to the Property, the Ground Lease
Property, and the Improvements (collectively, all of the foregoing,
excluding the fee ownership of the Ground Lease Property, being herein
called the "REAL PROPERTY");
(b) All tangible personal property of any kind owned by Seller that
is located on and used in connection with the ownership, maintenance, or
operation of the Real Property (the "PERSONALTY"), including without
limitation those items described in EXHIBIT "B" hereto, subject to Seller's
right to the adjustment of such list for replaced and/or obsolete
Personalty between the Effective Date of this Agreement and the Closing as
and to the extent expressly provided in this Agreement;
(c) All interest as lessor, landlord, or real property owner in and
to all leases or other agreements demising space in, providing for the use
or occupancy of the Improvements or Land (collectively the "LEASES" and
individually a "LEASE") with tenants (collectively the "TENANTS" and
individually a "TENANT") occupying or entitled to occupy or use the Real
Property, or any portion thereof, all rents (including, without
limitation, rent escalations) prepaid for any period subsequent to the
Closing Date (hereinafter defined), and all deposits, security, letters of
credit (Seller's obligation will be to complete and deliver by Closing
paperwork required to effect the transfer, although the actual transfer or
reissuance may not occur until after Closing, it being agreed that Seller's
obligations to cooperate in effectuating such transfer will survive
Closing), or otherwise ("DEPOSITS"), made by or on behalf of Tenants
holding under the Leases, which Leases include, without limitation, that
certain Lease Agreement dated as of December 21, 1999, between Seller, as
"Landlord," and Purchaser, as "Tenant," relating to Purchaser's lease and
occupancy of a large portion of the Building (as amended, separately the
"SWBOT LEASE");
(d) All of Seller's right, title and interest in and to all (i)
contracts or agreements, such as maintenance, service, utility contracts,
the FPPC Commission Agreement and A&M Commission Agreement as defined in
Section 2(b) hereof, and all leases under which Seller is the lessee for
the leasing of equipment or other property located on and used exclusively
in connection with the Real Property (the foregoing to specifically exclude
any property management or property leasing agreements with Seller's
manager or leasing agent for the Property, collectively the "PROPERTY
AGREEMENTS"), (ii) warranties, guaranties, indemnities, and claims, (iii)
licenses, franchise, permits, or similar documents, (iv) telephone
exchanges, trade names, marks, and other identifying materials, including
without limitation the trade name "1801 Main Building," (v) any plans,
drawings, specifications, surveys, engineering reports, and other technical
information, and (vi) other intangible property that relates, in any way,
to the design, construction, ownership, use, leasing, maintenance, service,
or operation of the Land, Improvements, Ground Lease Improvements, Leases,
Deposits, or Personalty, subject to obtaining any necessary consents to
transfer such items (which Seller agrees to use reasonably diligent efforts
to obtain by Closing, but without any obligation to pay any sum to obtain
such consents).
The above-listed items are hereby collectively called the "PROPERTY." All of
the Property shall be conveyed, assigned, and transferred to Purchaser at
Closing (hereinafter defined) free and clear of all liens, claims, easements,
and encumbrances whatsoever except for the Permitted Encumbrances (hereinafter
defined) and in the condition required by this Agreement.
SECTION 2. PURCHASE PRICE.
(a) Subject to the terms and provisions hereof, the price for
which Seller shall sell and convey the Property to Purchaser, and which
Purchaser shall pay to Seller is Twenty-Five Million One Hundred Ninety
Thousand and No/100 Dollars ($25,190,000.00) ("PURCHASE PRICE"), to be paid
in cash at Closing. For purpose of this Contract, "cash" means the same as
"good funds" as defined in applicable Texas title insurance regulations
governing the type of funds which may be accepted by the Title Company for
closing and disbursement of an insured real estate transaction.
(b) In addition to the Purchase Price set forth in Section 2(a)
herein, Purchaser will be required to reimburse Seller at Closing, in cash,
for the A&M Leasing Costs and the FPPC Leasing Costs as defined herein. For
purposes hereof, "A&M LEASING COSTS"
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means the Seller-certified and reasonably documented cost of tenant
improvements, the other improvements and fees and brokerage commissions
paid or incurred by Seller as landlord under the A&M Lease (as below
defined), other than the Additional Allowance (which the parties
acknowledge will not be actually expended by Seller prior to Closing), to
the extent actually paid or expended by Seller prior to Closing in respect
of the A&M Lease (as below defined), but in no event will such
reimbursement exceed the amount of $910,000. For purposes hereof, the "FPPC
LEASING COSTS" means the Seller-certified and reasonably documented cost of
tenant improvements, the other improvements and fees and brokerage
commissions paid or incurred by Seller as landlord under the FPPC Lease (as
below defined), to the extent actually paid or expended by Seller prior to
Closing in respect of the FPPC Lease, but in no event will such
reimbursement exceed the amount of $65,000. The Commission Agreement dated
May 1, 2002, between Seller and Coldwell Banker Commercial American
Spectrum (▇▇▇ Pollen,Agent) pertaining to the FPPC Lease is herein called
the "FPPC COMMISSION AGREEMENT," and the Commission Agreement entered into
between Seller and ▇▇▇▇▇▇▇ Wakefield of Texas, Inc., and Gholson Commercial
Ventures, Inc., dated May 6, 2002, is herein called the "A&M COMMISSION
AGREEMENT."
(c) For purposes of this Agreement (i) the "A&M Lease" means, when
executed, that certain occupancy lease dated as of May 8, 2002, by and
between Seller, as lessor, and The Texas A&M University System (for the
Benefit of the Prairie View A&M University School of Nursing), as lessee,
and (ii) the "FPPC LEASE" means that one certain Lease Agreement dated to
commence on or about May 1, 2002, between Seller, as landlord, and Ferrer,
Poirot, PC, as lessee, leasing ▇▇▇▇▇ ▇▇▇ containing approximately 3,052
square feet of rentable area on the ninth floor in the Building.
SECTION 3. ▇▇▇▇▇▇▇ MONEY. Upon execution by both parties, Purchaser shall
deliver to Charter Title Company, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (Attn: Mr. ▇▇▇ ▇▇▇▇▇▇▇, Escrow Officer) (the "TITLE COMPANY"), a check in
the amount of One Hundred Thousand and No/100 Dollars ($100,000.00), which the
Title Company shall immediately deposit for collection. As used in this
Agreement, the term "▇▇▇▇▇▇▇ MONEY" shall mean the amount so deposited by
Purchaser, together with all interest earned thereon while in the custody of
Title Company. Title Company shall immediately deposit the ▇▇▇▇▇▇▇ Money in an
interest-bearing account until the ▇▇▇▇▇▇▇ Money is delivered pursuant to the
provisions hereof. The Title Company and Chicago Title Insurance Company, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇, will split
equally the title insurance premiums and other fees from the Owner's Policy
(including the leasehold title policy portion even if issued as a separate
policy), and the Title Company will allow Chicago Title Company to perform such
services in connection with this Closing as are necessary for Chicago Title
Company to earn such split premium. Seller and Purchaser stipulate that
Purchaser's agreement to so deposit the ▇▇▇▇▇▇▇ Money is sufficient
consideration to support this Agreement notwithstanding Purchaser's rights under
Section 5 hereof; however, if Purchaser does not timely deposit the ▇▇▇▇▇▇▇
Money, then this Agreement shall terminate and be of no further force or effect.
SECTION 3.A INDEPENDENT CONTRACT CONSIDERATION. The sum of $100.00 of the
▇▇▇▇▇▇▇ Money shall be held by the Title Company and delivered to Seller either
(i) at closing as
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part of the Purchase Price, or (ii) upon termination of this Agreement. Such
$100.00 sum being consideration for this Agreement and being non-refundable to
Purchaser in any event.
SECTION 4. DELIVERY OF INFORMATION BY SELLER.
(a) Seller, at its sole cost and expense, has previously delivered or
caused to be delivered to Purchaser the following:
(1) Commitment for Title Insurance ("TITLE COMMITMENT") from the
Title Company setting forth the status of the title of the Office
Building Property, the Improvements, and the ground lessee's interest
under the Ground Lease in and to the Ground Lease Property, showing
all liens, claims, encumbrances, easements, rights-of-way,
encroachments, reservations, restrictions and all other matters of
record affecting such Real Property based on the Title Company's title
examination of each such tract and/or interest in Real Property; and
(2) A true, complete and legible copy of all documents referred
to in the Title Commitment ("TITLE COMMITMENT DOCUMENTS").
The Title Company is directed to deliver a copy of the Title Commitment and
Title Documents to Seller, Purchaser and their counsel (as per the notice
provisions hereof) simultaneously.
(b) Within three (3) business days after the Effective Date, Seller,
at its sole cost and expense, shall deliver to Purchaser a current survey
("SURVEY") of the Land consisting of a plat and field notes prepared by a
licensed surveyor acceptable to Purchaser and Title Company, which Survey
shall state that it meets the conditions and requirements of a Category 1A,
Condition II Survey per the Surveying Standards and Specifications of the
Texas Society of Professional Surveyors and, at Purchaser's option as it
may elect (i) reflect the actual dimensions of, and area within, the Land,
the location of any easements, setback lines, encroachments or overlaps
thereon or thereover, and the outside boundary lines of all Improvements
and the Ground Lease Improvements (ii) identify by recording reference all
easements, set back lines and other matters referred to in the Title
Commitment, (iii) include the surveyor's registered number and seal, the
date of the Survey and a certificate satisfactory to Purchaser, (iv)
reflect that there is access to and from the Land from a publicly dedicated
street or road, (v) be sufficient to cause the Title Company to delete
(except for "shortages in area") the printed exception for "discrepancies,
conflicts or shortages in area or boundary lines, or encroachments, or any
overlapping of improvements" in the Owner's Title Policy to be delivered
pursuant to Section 8 hereof, (vi) reflect any area within the Land that
has been designated by the Federal Insurance Administration, the Army Corps
of Engineers, or any other governmental agency or body as being subject to
special or increased flooding hazards, and (vii) contain such other
information as Purchaser may elect. At least two copies of the Survey will
be delivered to each Seller, Purchaser and their counsel promptly upon its
receipt by Seller. For purposes of the property description to be included
in the special warranty deed to be delivered pursuant to Section 8 hereof,
the field notes prepared by the surveyor shall control any conflicts or
inconsistencies with EXHIBIT "A" hereto, and
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such field notes shall be incorporated herein by this reference upon their
completion and approval by Purchaser provided that there is no material
discrepancy between the description contained in the Survey prepared by
Purchaser and the description initially provided on EXHIBIT "A" hereto,
but if any land is contained in the description of the Office Building
Property prepared by Purchaser's surveyor that is not contained in the
description on EXHIBIT "A" hereto then Seller shall quitclaim to Purchaser
all right, title and interest of Seller, if any, in and to such additional
lands. The Ground Lease Assignment will not contain a legal description of
the Ground Lease Property, but rather will refer to the Ground Lease
Property solely by reference to the description contained in original
recorded instrument in the ▇▇▇▇▇▇ County Real Property Records evidencing
the existence of the Ground Lease.
(c) Seller, at its sole cost and expense, has heretofore delivered
to Purchaser current searches of all Uniform Commercial Code financing
statements filed with the Office of the Secretary of State of Texas and
the County Clerk of ▇▇▇▇▇▇ County, Texas, against Seller reflecting all
effective financing statements then of record relating to the Property or
any part thereof.
(d) Prior to the date hereof, Seller represents that it has, at its
sole cost and expense, delivered to Purchaser (i) Copies of the Ground
Lease relating to the Ground Lease Property (except documents of record,
which will be part of the Title Commitment Documents); (ii) Copies of all
existing Leases, including all amendments, letter agreements, and
guaranties, if any, relating thereto; (iii) Operating Statements for the
Building for the past two years, including copies of ad valorem tax
statements for the past two years, and any notice or correspondence
actually received by Seller relating to assessed valuation for the year
2002; (iv) Copies of all Property Agreements; (v) Copies of all third-party
prepared engineering and environmental inspections, soil reports,
maintenance inspections and equipment reports prepared for Seller in
relation to the Building and its operation; (vi) To the extent in Seller's
possession or reasonably under its control, as-built plans and
specifications of the Real Property; (vii) Brief summary of any and all
pending lawsuits related to the Real Property if involving Seller as a
party; (viii) To the extent in Seller's possession or reasonably under its
control, copies of any current certificates of occupancy (or compliance)
that have been issued for the Real Property; and (ix) To the extent
actually received by Seller, copies of notices regarding condemnation,
noncompliance with laws or regulations, and insurance cancellations, if
any, relating to the Property. The documents described in this Section 4(d)
are herein collectively called the "DOCUMENTS," and the information
contained in the Documents is herein collectively called the "INFORMATION."
Notwithstanding anything to the contrary or apparent contrary herein, no
Documents or Information shall ever be required to include attorney-client
privileged communications. Purchaser agrees that it will not in any manner
rely on any of the Operating Statements or other financial history of the
Property as provided by Seller hereunder, which shall be deemed of
non-material effect for all purposes, and will instead, at Purchaser's own
risk, rely only on its own evaluation of expected operating expense and
income and/or on the opinion and/or projections of experts hired by
Purchaser to evaluate the same (if Purchaser feels it cannot make such
forecasts or projections with reasonable accuracy on its own).
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SECTION 5. RIGHT OF INSPECTION; CONTINGENCY PERIOD.
(a) From the Effective Date until Closing, Purchaser shall have the
right and option to enter upon the Real Property (except Purchaser may not
enter any third-party Tenant space except as may be permitted pursuant to
such Tenant's Lease and then only upon prior arrangement through Seller)
and to conduct any and all further inspections, studies and tests,
including, but not limited to, engineering studies, soil tests and analyses
(geotechnical studies only, not environmental core sampling or ground water
drilling or sampling except as approved by Seller as provided below),
utilities analyses and surveys, service contracts, plans and specifications
and physical inspections of, on and with respect to the Property
(collectively, the "TESTS AND INSPECTIONS") as Purchaser, in Purchaser's
sole discretion, determines to be necessary or appropriate; provided,
however, that such Tests and Inspections do not interfere in any material
respect with any work being performed by Lessor or Lessor's contractors or
subcontractors in or about the Property or with the operation of the
Property or with any Tenant rights, nor shall any Test or Inspection result
in material damage, injury or defacement of any part of the Property, and
the Tests and Inspections shall be at Purchaser's sole cost and expense. It
is expressly understood and agreed that any so-called "phase two"
environmental testing of the Real Property (other than non-destructive
sampling of materials suspected of being asbestos-containing), including,
without limitation, soil and water table sampling and installation of
ground water monitoring or sampling ▇▇▇▇▇, shall be considered destructive
and shall require special written permission of Seller in each instance.
Seller hereby agrees to reasonably cooperate with Purchaser and to provide
Purchaser with such information and documentation in Seller's actual
possession as Purchaser reasonably requests in order to assist Purchaser in
making the Tests and Inspections. Purchaser's entry onto the Property to
conduct such Tests and Inspections shall be at Purchaser's sole risk,
subject to the rights of persons in possession of the Property. Except as
otherwise provided in the next sentence, Purchaser shall and hereby agrees
to indemnify, defend and hold harmless Seller, its agents, employees,
lenders and affiliates, from and against any and all, claims, liabilities,
actions, suits, proceedings, judgments, damages, losses, injury, costs,
fees and expenses, including, without limitation, costs of court and
attorney's fees, arising in any way out of or in connection with any
activities of Purchaser (or its agents and representatives) upon the
Property in connection with inspecting, studying and/or investigating the
Property, and Purchaser shall immediately restore any portion of the
Property disturbed by any such Tests or Inspections to the condition
existing immediately prior to such Test or Inspection procedure.
Notwithstanding the foregoing, in no event will Purchaser be liable under
the preceding sentence for claims, liabilities, actions, suits,
proceedings, judgments, damages, losses, injury, costs, fees and expenses,
including, without limitation, costs of court and attorneys' fees, arising
from or in connection with the pre-existing conditions even if the Tests or
Inspections aggravated or activated same, unless resulting from the gross
negligence or willful or wanton neglect of Purchaser or its contractors or
consultants. Notwithstanding anything to the contrary or apparent contrary
elsewhere in this Agreement, the indemnity, defense and repair obligations
of Purchaser under the Section shall survive for six (6) months the
expiration or termination of this Agreement for any reason. Nothing in this
Section 5(a) shall be deemed to give Purchaser any right to terminate this
Agreement that is not expressly stated in Section 5(b) hereof.
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(b) If for any reason Purchaser, in its sole and absolute discretion,
is not satisfied with the physical condition of the Improvements, or any
matter in the Documents, or any part of the Information or is otherwise not
satisfied with the Property, or is not allowed to undertake the Tests and
Inspections desired, then Purchaser shall have the right to terminate this
Agreement in accordance with Section 12(b) hereof, by delivering to Seller
a notice of termination at any time during the period from the Effective
Date hereof until the end of the day one business day immediately preceding
the Closing Date ("CONTINGENCY PERIOD").
SECTION 6. TITLE. Purchaser shall have the right, at any time by the end of
the second business day prior to expiration of the Contingency Period, to object
in writing to any liens and encumbrances reflected by the Title Commitment or
Survey. All liens and encumbrances to which Purchaser so objects are hereinafter
referred to as the "NON-PERMITTED ENCUMBRANCES", if no such notice of objection
is given by Purchaser during such time, then it shall be deemed that all matters
reflected by the Survey and Title Commitment are "PERMITTED ENCUMBRANCES."
Seller shall have the right, but not the obligation, at its sole cost, to cure
or remove all Non-Permitted Encumbrances and give Purchaser written notice
thereof before the end of the Contingency Period (if Seller fails to give such
notice to Purchaser by the day prior to the end of the Contingency Period,
Seller shall be deemed to have notified Purchaser that it will not cure any such
items except those hereinbelow described as being items that Seller must remove
at or by Closing); provided, however, that Seller at its sole cost shall be
obligated to cure or remove at or before Closing the following ("MANDATORY CURE
ITEMS"): (A) all mortgages, deeds of trust, or other voluntary liens securing
financial obligations that have been created, or knowingly assumed, by Seller or
anyone acting on behalf of Seller and (B) materialmen's liens or lien claims
("M&M LIEN CLAIMS") to the extent such M&M Lien Claims do not, in the aggregate
exceed $250,000, whether or not Purchaser objects thereto during the period
provided above for Purchaser making objections. If Seller does not timely cause
all of the Non-Permitted Encumbrances to be removed or cured, and timely written
notice thereof to be given to Purchaser, then Purchaser, as its sole and
exclusive remedy (other than its right to require removal of Mandatory Cure
Items on or prior to Closing and hold Seller in default by reason of its failure
to do so), shall have the right either (i) to terminate this Agreement in
accordance with the Section 12(b) hereof by delivering notice to Seller before
the end of the Contingency Period, or (ii) to elect to purchase the Property
subject to the Non-Permitted Encumbrances without reduction of the Purchase
Price, in which event all such uncured Non-Permitted Encumbrances (other than
Mandatory Cure Items) shall become Permitted Encumbrances for purposes hereof.
SECTION 7. SELLER'S EXCLUSIVE (LIMITED) REPRESENTATIONS AND WARRANTIES;
OPERATING COVENANTS OF SELLER; TENANT ESTOPPELS AND GROUND LEASE ESTOPPEL.
(a) EXCEPT FOR THE EXPRESS (LIMITED) WARRANTIES OF SELLER CONTAINED
HEREIN, AND THE SPECIAL WARRANTY OF TITLE AND NO ENCUMBRANCES TO BE
CONTAINED IN THE DEED OR OTHER CLOSING DOCUMENTS, PURCHASER ACKNOWLEDGES
AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES
AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED,
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ORAL OR WRITTEN, PAST, PRESENT, OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY OF THE REAL
PROPERTY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY CONDUCT OR DESIRE TO CONDUCT THEREON OR THEREWITH, AND THE
SUITABILITY OF THE REAL PROPERTY FOR CONSTRUCTION OF IMPROVEMENTS OR THE
AVAILABILITY OF UTILITIES TO THE PROPERTY, (D) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, WITHOUT
LIMITATION, BUILDING, FIRE AND SAFETY CODES, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE QUALITY, STATE
OF REPAIR OR LACK OF REPAIR OR CONDITION OF THE PROPERTY, (H) THE QUALITY,
ENFORCEABILITY, ASSIGNABILITY, VALUE DESIRABILITY OF TERMS, AND/OR LEGAL
INTERPRETATION OF ANY PART OF THE PROPERTY THAT IS COMPRISED OF
INTANGIBLES, AND (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY OR THE
AREA IN WHICH IT IS LOCATED. EXCEPT FOR THE ABOVE EXPRESS (LIMITED)
WARRANTIES OF SELLER, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING WHETHER THE PROPERTY DOES OR DOES
NOT CONTAIN ANY HAZARDOUS, TOXIC OR REGULATED MATERIALS, INCLUDING SOLID
WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS
AT 40 C.F.R., PART 261, OR REGARDING WHETHER THE PROPERTY COMPLIES WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE
PROPERTY, OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED,
AND REGULATIONS PROMULGATED THEREUNDER, OR HAZARDOUS, TOXIC OR OTHER
DANGEROUS SUBSTANCES WITH STORAGE, USE, DISPOSAL OR TRANSPORTATION OF WHICH
IS GOVERNED OR REGULATED BY ANY LOCAL, STATE OR FEDERAL LAW OR REGULATION.
EXCEPT FOR THE EXPRESS WARRANTY OF TITLE AND NO ENCUMBRANCES TO BE
CONTAINED IN THE DEED OR OTHER CLOSING DOCUMENTS, PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT,
INVESTIGATE AND TEST THE PROPERTY PRIOR TO EXECUTION OF THIS AGREEMENT,
PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE
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PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR
TO BE PROVIDED BY SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS ADVISED PURCHASER THAT IT HAS NOT
MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS CONTAINED HEREIN OR IN A
DULY EXECUTED WRITTEN AMENDMENT HERETO. OTHER THAN AS ABOVE PROVIDED, THE
SALE OF THE PROPERTY IS MADE ON AN "AS IS" CONDITION AND BASIS "WITH ALL
FAULTS." IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD
BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. THE
DISCLAIMERS AND OTHER PROVISIONS OF THIS SECTION 7(a) SURVIVE CLOSING.
(b) Seller hereby represents and warrants to Purchaser, as its sole
and exclusive representations and warranties to Seller pertaining to this
transaction, that:
(i) Seller has full right, power, and authority to execute and
deliver this Agreement and to consummate the purchase and sale
transactions provided for herein without obtaining any further
consents or approvals from, or the taking of any other actions with
respect to, any third parties. This Agreement, when executed and
delivered by Seller and Purchaser, will constitute the valid and
binding agreement of Seller, enforceable against Seller in accordance
with its terms.
(ii) To Seller's actual knowledge (as defined and limited
hereinbelow) only, Seller owns the Office Building Property and
Improvements in fee simple and holds the entire interest of the tenant
under the Ground Lease Property, free and clear of all liens (except
the Permitted Encumbrances), and no party, except as herein set forth,
has or shall have on the Closing Date any rights in, or to acquire,
the Office Building Property, the Improvements or the Ground Lease.
(iii) To Seller's actual knowledge only, a certificate of
occupancy has been duly issued with regard to the Improvements.
(iv) Seller is the owner of all of the Personalty, free and
clear of all liens (except the Permitted Encumbrances).
9
(v) Attached hereto as EXHIBIT "C" is the standard "TENANT RENT
ROLL" that has been prepared by Seller's third-party management agent
for the Property, which Seller has no actual knowledge is incorrect in
any material respect. Except as provided below in this subparagraph
and except for the SWBOT Lease: (1) to Seller's actual knowledge, the
Leases described in the Tenant Rent Roll are in effect and, to
Seller's current actual knowledge, no material uncured breach or
default exists on the part of the landlord or Tenant thereunder; and
(2) such Leases and related agreements provided by Seller to Purchaser
constitute the only agreements between Seller and such Tenants.
Qualifications to the foregoing are as follows: any contrary matter
disclosed in the Tenant Rent Roll(s) and/or the A/R Listing (or
updates) delivered by Seller to Purchaser hereunder.
(vi) The current "Aged Receivables Listing" of the Property
attached hereto as EXHIBIT "C-1" (the "A/R LISTING") is true and
correct in all material respects as of the date indicated thereon;
provided, however, that Seller does not guarantee that no Tenant will
debate or request to audit to determine whether particular sums are
in fact correctly calculated or due under such Tenant's Lease;
(vii) To Seller's actual knowledge at the time of their
delivery, the Documents delivered by Seller to Purchaser hereunder
will be complete copies of all Documents required to be delivered by
Seller hereunder.
(viii) There are no actions, suits, claims, assessments, or
proceedings pending to Seller's actual knowledge only, or overtly
threatened against Seller or the Property that could materially
adversely affect the ownership, operation, or maintenance of the
Property or Seller's ability to perform hereunder.
(ix) Attached hereto as EXHIBIT "E" is a complete and correct
list of all Property Agreements.
(x) To Seller's actual knowledge only, the Real Property has
not been the site of any activity that would violate any past or
present environmental law or regulation of any governmental body or
agency having jurisdiction over the Real Property, and specifically,
but without limitation, to Seller's actual knowledge only (1) solid
waste, petroleum, or petroleum products have not been leaked or
spilled onto the Real Property or contaminated the Real Property,
and (2) no "hazardous materials" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980; the Hazardous Materials Transportation Act; and the
Resources Conversation and Recovery Act, all as amended, have been
leaked or spilled onto the Real Property or contaminated the Real
Property.
(xi) Other than with respect to work performed under the TI
Construction Contracts (i) Seller has no actual knowledge of any
third party having filed or threatened to file a lien or lien claim
against the Property that has not previously been fully resolved to
the satisfaction of the lien claimant, and (ii)
10
Seller has not contracted for any material quantity of construction
work on the Property that could give rise to a mechanic's or
materialman's lien claim except work completed and paid for by Seller
in full prior to January 31, 2002.
For purposes hereof, "SELLER'S ACTUAL KNOWLEDGE" shall mean and include
only the actual personal knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
without inquiry or investigation of any kind other than that (if any)
heretofore done by Seller to the extent the same is within in the actual
personal knowledge either of the two individuals named above, and expressly
excludes implied, imputed or constructive knowledge of Seller or such
individuals.
If (i) any of Seller's representations and warranties set forth in this
Section 7 are untrue in any material respect, or (ii) at any time at or
before Closing there is any material change with respect to the matters
represented and warranted by Seller pursuant to this Section 7 and such
information becomes part of Seller's actual knowledge as defined herein,
then Seller shall give Purchaser prompt written notice thereof, and
Purchaser shall have the right to terminate this Agreement in accordance
with Section 12(b) hereof by delivering notice to Seller at any time at or
before the Closing. All of Seller's express representations and warranties
herein (as re-given by Seller at Closing as modified to accommodate changes
in Seller's actual knowledge between the Effective Date and Closing) shall
survive the Closing for a period of one (1) year (such that any claim of
Purchaser for misrepresentation or breach of warranty by Seller that is not
discovered and brought to Seller's attention in writing within that
one-year period shall be deemed not to have survived Closing), except that
the representation and warranty in Section 7(b)(ii) will not survive
Closing and will be deemed merged out of existence by delivery of the Deed
and other Closing documents hereunder.
(c) From the Effective Date hereof until the Closing Date, Seller
shall: (i) maintain and operate the Property in a good and businesslike
manner in accordance with good and prudent business practices, but shall
not be obligated to make any specific repairs unless it determines the same
to be necessary for its own liability purposes; (ii) use good faith efforts
to continue all Leases, Property Agreements, and insurance policies
relative to the Property in full force and effect, and neither cancel,
amend, nor renew any of the same without Purchaser's prior written consent,
which consent shall not be unreasonably withheld; provided, however, that
Seller may, if it so elects, without Purchaser's consent (A) cancel, amend
or renew any Property Agreement in the ordinary course of Seller's
business, provided that Seller shall give Purchaser prompt notice and a
copy of any document or letter accomplishing the same, and further provided
that such renewal of a Property Agreement allows Seller (and its successor)
to terminate without cost or expense upon no more than 30 days notice, (B)
cancel, amend or renew any Lease in the ordinary course of Seller's
business (including by reason of any Tenant default), up to ten (10) days
prior to Closing, or up to Closing honor any tenant's exercise of any
renewal/right of refusal or expansion option contained in any Lease (but if
the rental rate for the renewal/right of refusal or expansion is subject to
determination in Seller's sole and absolute discretion, Seller shall not
agree to such renewal or expansion rate after the tenth (10th day prior to
Closing), provided that in each of the foregoing cases Seller shall give
Purchaser prompt notice and a copy of any document or letter accomplishing
the
11
same and upon receipt thereof Purchaser may cancel this Contact by written
notice to Seller if the terms of such cancellation, renewal or expansion
are not acceptable to Purchaser, and/or (C) renew or reasonably modify any
insurance policy in the ordinary course of Seller's business; (iii) not
destroy, remove or materially alter any of the Improvements, except tenant
finish improvements inside Tenant space per the terms of any Lease; (iv)
except as permitted by clause (ii) hereof or otherwise in the ordinary
course of Seller's business and not creating any material interference with
use and operation of the Property for its present use and operation, not,
without the prior written consent of Purchaser (which shall not be
unreasonably withheld), enter into any agreement or instrument or take any
action that would encumber the Property after Closing, that would bind
Purchaser or the Property after Closing, or that would be outside the
normal scope of maintaining and operating the Property; and (v) not remove
any item of the Personalty from the Land or Improvements unless it is
replaced with an item of reasonably equal value that is properly suited for
its intended purpose (in which event the inventory of Personalty will be
amended accordingly). If Seller desires to obtain the consent to any matter
for which Purchaser's consent is required or desired by Seller hereunder,
Seller may request such consent in writing, accompanied by the appropriate
proposed document, or a description of the proposed action, and if
Purchaser fails to object thereto within five (5) business days of receipt
of Seller's request, specifying the reasonable basis for Purchaser's
disapproval, Purchaser shall be conclusively deemed to have approved of
such document or action as described in Seller's notice. Notwithstanding
the foregoing, however, Seller shall further be entitled to execute a
construction contract for the construction of tenant improvements as
required and/or contemplated under the A&M Lease (the "A&M CONSTRUCTION
CONTRACT"), and a construction contact for the construction of tenant
improvements as required and/or contemplated under the FPPC Lease (the
"FPPC CONSTRUCTION CONTACT''), each in such form as Purchaser determines to
be appropriate (though Purchaser will have a right to terminate this
Agreement if it does not approve of the terms of such contracts), such
construction contracts being herein collectively referred to as the "TI
CONSTRUCTION CONTRACTS."
(d) Seller represents that prior to the date hereof, Seller has
sent to each Tenant (except Purchaser), by regular mail or delivery, a
Tenant Estoppel Certificate substantially in the form of EXHIBIT "H"
attached hereto, requesting that such certificate be promptly executed and
returned to Seller, and to the Ground Lease lessor, by regular mail or hand
delivery, a Ground Lessor Estoppel Certificate substantially in the form of
EXHIBIT "J" attached hereto, requesting that such certificate be promptly
executed and returned to Seller. Within two (2) business days after the
Effective Date and receipt from Purchaser of its requested estoppel form,
as to the FPPC Construction Contract, and within two (2) business days
after Seller's execution of the A&M Construction Contract as to that
contact, Seller shall send to the contractor under the respective TI
Construction Contracts TI Construction Contract Estoppel in the form
reasonably requested by Purchaser, requesting that such certificate be
promptly executed by the contractor and returned to Seller; provided,
however, if any charge or reimbursement of legal fees of counsel is
requested by the Ground Lease lessor as a condition to its consideration of
such estoppel, Purchaser agrees to advance any funds required thereby and
if any such costs are unpaid as of Closing Seller may require reimbursement
by Purchaser at Closing
12
as a condition to Closing. Seller shall use good faith efforts (without
litigation, exercise of lease termination remedies or legal demand) to seek
to have all such Tenant Estoppel Certificates and the Ground Lease Estoppel
Certificate executed and delivered to Seller prior to Closing, but nothing
contained constitutes any guarantee or promise by Seller that such
certificates shall be executed or delivered as of the date of Closing.
However, Purchaser may, at its option, terminate this Agreement if any such
estoppels (including TI Construction Contract Estoppels) are not received
by the Closing Date.
SECTION 8. CLOSING. The closing ("CLOSING") of the sale of the Property by
Seller to Purchaser shall occur on or before May 31, 2002 ("CLOSING DATE"). Time
is of the essence with regard to the Closing Date. The Closing shall occur in
the offices of Seller's counsel commencing at 10:00 AM on the Closing Date. At
the Closing the following, which are mutually concurrent Closing conditions,
shall occur:
(a) Purchaser, at its sole cost and expense, shall deliver or cause
to be delivered to Seller the following:
(1) Cashier's check, or the check of the Title Company, made
payable to the order of Seller, or immediately available cash funds,
in the amount of the Purchase Price as specified in Section 2(a)
hereof, adjusted in accordance with Section 8(c) hereof and in the
amount of the A&M Leasing Costs and the FPPC Leasing Costs as required
pursuant to Section 2(b) hereof;
(2) Counterpart originals of the Deed, ▇▇▇▇ of Sale and
Assignment, the TI Construction Contract Assignment, and the Ground
Lease Assignment (as such terms are defined below), accepting the
terms and limitations thereof and assuming the obligations of Seller
thereunder from and after Closing, duly executed by Purchaser;
(3) Evidence satisfactory to the Title Company and reasonably
satisfactory to Purchaser that the person executing the Closing
documents on behalf of Seller has full right, power, and authority to
do so; and
(4) Other instruments as are reasonably requested by Seller and
as are required by applicable law in Texas to effectuate the
conveyance of property similar to the Property, with the effect that,
after the Closing, Purchaser will have succeeded to all of the rights,
titles, and interests of Seller related to the Property and Seller
will no longer have any rights, titles, or interests in and to the
Property, but under no circumstance requiring Purchaser to undertake
any representation, warranty, covenant or liability not expressly
contemplated by the terms and provisions of this Agreement, nor that
would result in any cost to such party not expressly contemplated by
the terms and provisions of this Agreement.
(b) Seller, at its sole cost and expense, shall deliver or cause to
be delivered to Purchaser the following:
13
(1) Warranty Deed ("DEED") in the form of EXHIBIT "F" hereto,
fully executed and acknowledged by Seller, conveying to Purchaser the
Office Building Property and Improvements, subject to the Permitted
Encumbrances;
(2) ▇▇▇▇ of Sale and Assignment and Assumption of Purchase
Agreements and Leases ("▇▇▇▇ OF SALE AND ASSIGNMENT") in the form of
EXHIBIT "G" hereto, fully executed and acknowledged by Seller,
assigning, conveying, and transferring all of the Property other than
the Real Property and the TI Construction Contracts, to Purchaser,
subject to the Permitted Encumbrances;
(3) Any Tenant Estoppel Certificates that have actually been
obtained by Seller but not previously been delivered to Purchaser;
(4) An Owner's Policy of Title Insurance (notwithstanding that
the same covers both a fee tract and a leasehold interest, herein
called the "OWNER'S POLICY") in the amount of the Purchase Price
issued by Title Company (with such reinsurance as Purchaser may
reasonably require to the extent available), insuring that Purchaser
is the owner of the Office Building Property and Improvements, and the
ground leasehold interest of the "Tenant" under the Ground Lease (in
and to the Ground Lease Property), free and clear of all liens and
encumbrances subject only to the Permitted Encumbrances and the
standard printed exceptions included in a Texas standard form owner's
policy of title insurance; provided, however, that (i) at Purchaser's
sole cost and expense and subject to the Survey being satisfactory
therefor, the standard exception for discrepancies, conflicts, or
shortages in area shall be deleted except for "shortages in area",
(ii) such policy shall have "None of Record" endorsed regarding
restrictions except the exception for restrictions deleted unless
there are Permitted Encumbrances that are restrictions and (iii) at
Purchaser's sole expense for any Title Company inspection of the
Property, but Seller hereby agreeing to execute and deliver to the
Title Company a "parties in possession affidavit" as reasonably
requested by the Title Company, the rights of parties in possession
shall be limited only to those holding under the Leases;
(5) Current (no older than five (5) business days) certificate
issued by a search company reasonably acceptable to Purchaser
reflecting that since the date of the searches furnished pursuant to
Section 4(c) hereof no Uniform Commercial Code filings, chattel
mortgages, assignments, pledges, or other encumbrances have been filed
in the offices of the Secretary of State of the State of Texas or the
County Clerk of ▇▇▇▇▇▇ County with reference to the Property, except
those being released at or prior to Closing;
(6) Evidence satisfactory to the Title Company and reasonably
satisfactory to Purchaser that the persons executing and delivering
the Closing documents on behalf of Seller have full right, power and
authority to do so;
(7) Certificate executed by Seller re-stating, as of the Closing
Date, each of Seller's representations and warranties set forth in
Section 7 hereof,
14
subject to such modifications as are required by reason of changes in
Seller's actual knowledge between the Effective Date and Closing;
(8) Certificate in the form of EXHIBIT "I" hereto pursuant to
Section 1445 of the Internal Revenue Code of 1954, executed by Seller.
(9) Current A/R Listing dated no sooner than 30 days prior to the
Closing Date reflecting all of the information described in Section
7(f) hereof as of the date thereof.
(10) Assignment and Assumption of Ground Lease Agreement (the
"GROUND LEASE ASSIGNMENT") in the form attached as EXHIBIT "L" hereto.
(11) Estoppel Certificate from the Ground Lessor if actually
received by Seller and not previously delivered to Purchaser.
(12) An assignment and assumption agreement pertaining to the TI
Construction Contracts (the "TI CONSTRUCTION CONTRACT ASSIGNMENT"), in
form reasonably acceptable to Seller and Purchaser, whereby the TI
Construction Contracts are assigned to Purchaser, Purchaser assumes
the TI Construction Contracts, and Purchaser agrees to indemnify,
defend and hold harmless Seller from all further liability thereunder
from and after the Closing Date (other than contract price that Seller
and Contractor certify has been paid as of the Closing Date, which is
also part of the amounts to be reimbursed to Seller pursuant to
Section 2(b) thereof) and Seller agrees to indemnify, defend and hold
harmless Purchaser from all liabilities arising thereunder (other than
the unpaid contract price) prior to the Closing Date.
(13) Other instruments as are reasonably requested by Purchaser
and as are required by applicable law in Texas to effectuate the
conveyance of property similar to the Property, with the effect that,
after the Closing, Purchaser will have succeeded to all of the rights,
titles, and interests of Seller related to the Property and Seller
will no longer have any rights, titles, or interests in and to the
Property, but under no circumstance requiring Seller to undertake any
representation, warranty, covenant or liability not expressly
contemplated by the terms and provisions of this Agreement, nor that
would result in any cost to such party not expressly contemplated by
the terms and provisions of this Agreement.
(c) All normal customarily pro-ratable items, including without
limitation real estate and personal property taxes, utility bills,
insurance premiums, rents (including, without limitation, rent escalations
as hereinbelow provided), interest, and Property Agreement payments shall
be prorated as of the Closing Date, Seller being charged and credited for
all of same up to such date and Purchaser being charged and credited for
all of same on and after such date; the amount of the deposits described in
Section 1(c) hereof transferred to Purchaser at Closing shall be taken into
account in determining the prorations, any amount or funds held or
controlled by or for the benefit of Seller, or its designee, representative
or agent, including specifically, but without limitations, the
15
Lessee's Costs (as defined in the A&M Lease), in respect of the
construction of tenant improvements pursuant to the A&M Lease, the FPPC
Lease or any other lease, unless previously spent by Landlord (with
appropriate documentation) for the costs for which they were deposited with
Seller) will be transferred to Purchaser without any credit to Seller. If
the actual amounts to be prorated are not known as of the Closing Date, the
prorations shall be made on the basis of the best evidence then available,
and thereafter, when actual figures are received, a cash settlement will be
made between Seller and Purchaser. With regard to proration of rent
escalations under Leases, it is agreed that such proration will be made
based upon Seller's current budget or projection of building operating
expenses for the year of Closing absent clear bad faith on the part of
Seller in regard to such estimates and absent such bad faith the respective
shares of rent escalation payments to be received by Seller and Purchaser
shall instead be reconciled within ninety (90) days after the close of the
year during which Closing occurs, based on actual building operating
expenses incurred by Seller and Purchaser, collectively, for the year of
Closing based on calculations thereof as permitted by the Leases, it being
assumed and deemed that Seller and Purchaser bore such building operating
expenses (regardless of proof to the contrary) after taking into account
other Closing adjustments and prorations of expenses in proportion to their
respective periods of ownership during the calendar year during which
Closing occurs. Notwithstanding the foregoing, however, a sum of money
agreed to by the parties (if the parties cannot agree then Purchaser's sole
remedy will be to close without such escrow or terminate with the same
effect as if Purchaser had terminated during the Study Period) will be
deposited by Seller in escrow with the Title Company at Closing, under an
escrow agreement joined in by and reasonably acceptable to Purchaser and
the Title Company (the ''ESCALATION ADJUSTMENT ESCROW AGREEMENT''), to
provide a pool of funds from which final adjustments and reconciliations of
escalation payments can be made after Closing as herein contemplated. All
Deposits shall be credited against the cash portion of the Purchase Price
in lieu of assigning such Deposits to Purchaser. No prorations shall be
made in relation to delinquent rents existing as of the Closing Date;
rather, Section 10 hereof shall govern Seller's rights to such rents. The
provisions of this Section 8(c) shall survive the Closing.
(d) Seller shall pay all costs and liabilities relating to the
Property that arise out of or are attributable to the period prior to the
Closing Date, and shall indemnify and hold harmless Purchaser from such
costs and liabilities and from all reasonable attorneys' fees expended by
Purchaser in connection therewith. Subject to Section 10 hereof, Seller
shall have the right to receive all proceeds relating to the Property that
are properly allocable to the period before the Closing Date, and Purchaser
shall have the right to receive all proceeds relating to the Property that
are properly allocable to the period from and after the Closing Date.
Purchaser shall pay all costs and liabilities relating to the Property that
arise out of or are attributable to the period from and after the Closing
Date, except such costs and liabilities that arise out of or result from a
breach by Seller of its representations and warranties set forth in Section
7 hereof, and Purchaser shall indemnify and hold harmless Seller from such
costs and liabilities and from all reasonable attorney's fees expended by
Seller in connection therewith. This Section 8(d) shall survive the
Closing.
(e) Title Company shall return the ▇▇▇▇▇▇▇ Money to Purchaser or
Seller shall have the Title Company credit the ▇▇▇▇▇▇▇ Money to the
Purchase Price.
16
(f) Upon completion of the Closing, Seller shall deliver to Purchaser
possession of the Property free and clear of all tenancies of every kind
and parties in possession, except for the Tenants under the Leases, with
all parts of the Property (including without limitation the Leases,
Improvements and Personalty) in the same condition as on the Effective
Date, normal wear only excepted.
SECTION 9. COMMISSIONS; REAL ESTATE BROKER NOTICE. Seller has agreed to
pay, at but only in the event of consummation of the Closing and out of the
proceeds of the sale, to ▇▇▇▇▇▇▇▇ Alliance, a sales commission in the amount of
0.825% of the gross Purchase Price, and to Transwestern Commercial Services in
the amount of 0.675% of the gross Purchase Price, both such brokers representing
Purchaser in this transaction (collectively, "BROKERS"). If the Closing under
this Agreement does not occur for any reason, including default by either party,
then Seller shall not be obligated to pay any commission to Brokers by reason of
this Agreement or the proposed transaction contemplated hereby. Brokers have
executed this Agreement for the sole and limited purpose of acknowledging and
accepting the terms of this Section 9 as representing the sole and complete
agreement between Seller and such Brokers with regard to the payment of
commissions to them in connection with this transaction, and their joinder shall
not be required for any amendment to this Agreement that does not amend the
content of this Section 9. Except as set forth in this Section 9, Seller shall
defend, indemnify, and hold harmless Purchaser, from and against all claims by
third parties for brokerage, commission, finders, or other fees relative to this
Agreement or the sale of the Property, and all court costs, attorneys' fees, and
other costs or expenses arising therefrom, and alleged to be due by reason of an
agreement of Seller. Purchaser will defend, indemnify and hold harmless Seller
from and against payment of or claims and litigation for any real estate
commission claimed to be payable to agents or consulting agents representing
Purchaser, other than Brokers. As provided for in the Texas Real Estate License
Act, Purchaser is advised to have an abstract of title with regard to the Real
Property examined by an attorney of its choice, or to obtain a policy of title
insurance.
SECTION 10. DELINQUENT RENTS. Seller shall retain title to all delinquent
rents existing as of the Closing Date under the Leases, and to all delinquent
parking rents (collectively, the "DELINQUENT RENTS"), and shall have the right
to collect such Delinquent Rents at Seller's sole cost and expense; provided,
however, that in pursuance of such collection efforts, Seller shall not exercise
any of the Lessor's or Landlord's rights under any Lease. Purchaser agrees to
reasonably cooperate with Seller in connection with such collections, and to
promptly remit to Seller all such delinquent rents collected by Purchaser after
Closing; provided, however that all rents that (i) are received after the
Closing Date from such delinquent tenants and (ii) are not designated by such
tenants to be on account of their obligations for any period before Closing,
shall be applied first against the then-current portion of such tenant's rent
obligation and then (and only then) against the Delinquent Rent portion due to
Seller and Purchaser shall promptly deliver such Delinquent Rents to Seller upon
receipt by Purchaser. The provisions of this Section 10 shall survive the
Closing.
SECTION 11. DESTRUCTION, DAMAGE, OR TAKING BEFORE CLOSING. If, before
Closing, all or any part of the Improvements or Personalty are destroyed or
damaged, or become subject to condemnation or eminent domain proceedings, then
Seller shall promptly notify Purchaser thereof. Purchaser shall have the right
to elect to proceed with the Closing (subject to the other provisions of this
Agreement) by delivering notice thereof to Seller within five (5) business days
17
of receipt of Seller's notice respecting the damage, destruction, or taking, but
Purchaser shall be entitled to all insurance proceeds or condemnation awards
payable as a result of such damage or taking and, to the extent the same may be
necessary or appropriate, Seller shall assign to Purchaser at Closing Seller's
rights to such proceeds or awards. If, within five (5) business days of receipt
of Seller's notice respecting the damage, destruction, or taking, Purchaser
notifies Seller of its election to terminate this Agreement, or if Purchaser
gives no notice within such period, then Purchaser shall be deemed to have
terminated this Agreement pursuant to Section 12(b) hereof.
SECTION 12. TERMINATION AND REMEDIES.
(a) If Purchaser fails to consummate the purchase of the Property
pursuant to this Agreement (for any reason other than termination hereof
pursuant to a right granted to Purchaser in Sections 5, 6, 7, and 11
hereof), then Seller, as its sole remedy, shall have the right to
terminate this Agreement by notifying Purchaser thereof, in which event
Title Company shall deliver the ▇▇▇▇▇▇▇ Money to Seller as liquidated
damages, whereupon neither Purchaser nor Seller shall have any further
rights or obligations hereunder (except those indemnity and repair
obligations of Purchaser stated herein to survive termination of this
Agreement [the "SURVIVING OBLIGATIONS"]).
(b) If Purchaser terminates this Agreement pursuant to Section 5, 6,
7, or 11 hereof, then Title Company shall return the ▇▇▇▇▇▇▇ Money to
Purchaser, whereupon neither party hereto shall have any further rights or
obligations hereunder, except the Surviving Obligations.
(c) If Seller breaches this Agreement prior to Closing or fails to
consummate the sale of the Property pursuant to this Agreement (for any
reason other than Purchaser's failure to perform its obligations hereunder
or termination hereof by Purchaser in accordance with Section 12(b)), then
Purchaser's sole and exclusive remedy is to either: (i) terminate this
Agreement by giving written notice to Seller thereof, in which case Title
Company shall return the ▇▇▇▇▇▇▇ Money to Purchaser and neither party
hereto shall have any further rights or obligations hereunder (except the
Surviving Obligations); or (ii) enforce specific performance of the
obligations of Seller hereunder.
(d) Seller and Purchaser hereby acknowledge and agree that they have
included the provision for payment of liquidated damages in Section 12(a)
because, in the event of a breach by Purchaser, the actual damages to be
incurred by Seller can reasonably be expected to approximate the amount of
liquidated damages called for herein and because the actual amount of such
damages would be difficult if not impossible accurately to measure.
(e) Nothing in this Section shall be construed as preventing either
party from obtaining injunctive relief from violation of this Agreement by
the other party under circumstances in which injunctive relief would be
available under applicable law.
SECTION 13. NOTICES. All notices provided or permitted to be given under
this Agreement must be in writing and may be served by depositing same in the
United States mail,
18
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, by delivering the same in person to
such party. Notice given in accordance herewith shall be deemed given and
received upon receipt at the effective notice address of the addressee, except
that notice sent by mail, certified or registered, return receipt requested as
specified herein shall be deemed given and received on the third postal
business day after deposit in the U.S. Mail. For purposes of notice, effective
notice addresses of the parties shall be as follows:
IF TO SELLER: TCP Renaissance Partners, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH REQUIRED COPY TO: TCP Renaissance Partners, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH REQUIRED COPY TO: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO PURCHASER: Southwest Bank of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Five Post Oak Park, 4th Floor
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH REQUIRED COPY TO: Gardere ▇▇▇▇▇ ▇▇▇▇▇▇, LLP
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party hereto may change its address for notice by giving three (3) days
prior written notice thereof to the other party.
SECTION 14. ASSIGNS; BENEFICIARIES. This Agreement shall inure to the
benefit of and be binding on the parties hereto and their respective heirs,
legal representatives, successors, and assigns. This Agreement is for the sole
benefit of Seller and Purchaser, and not third party is intended to be a
beneficiary of this Agreement. Purchaser may assign this Agreement or a part
thereof to any affiliated entity and any affiliate of Southwest Bank of Texas,
N.A., without the
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consent of Seller, but any other assignment by Purchaser is hereby prohibited
and, if attempted, shall be void.
SECTION 15. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Texas.
SECTION 16. ENTIRE AGREEMENT. This Agreement is the entire agreement
between Seller and Purchaser concerning the sale of the Property, and no
modification hereof or subsequent agreement relative to the subject matter
hereof shall be binding on either party unless reduced to writing and signed by
the party to be bound. EXHIBITS ▇, ▇-▇, ▇, ▇, ▇-▇, AND D THROUGH L, inclusive,
attached hereto, are incorporated herein by this reference for all purposes.
SECTION 17. ATTORNEY'S FEES. Should any litigation or administrative
proceeding be commenced by either of the parties hereto or their
representatives, or should either party institute any proceeding in a bankruptcy
or similar court which has jurisdiction over any other party hereto or any or
all of its property or assets, or should any litigation or proceeding be
commenced concerning any provision of this Agreement or the rights and duties of
any person or entity in relation thereto, then the party or parties prevailing
in such litigation or proceeding shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for such prevailing party's
attorneys' fees and court costs in such litigation or proceeding, which shall be
determined by the court (or presiding official) in such litigation or
proceeding or in a separate action brought for that purpose.
SECTION 18. SURVIVAL. The representations, warranties and covenants of
Seller set forth in this Agreement shall not survive the Closing except as
expressly stated elsewhere in this Agreement, and shall be deemed merged into
the Deed and fully performed upon Purchaser's acceptance of the Deed at Closing.
SECTION 19. SATURDAY, SUNDAY OR LEGAL HOLIDAY. If any date set forth in
this Agreement for the performance of any obligation by Purchaser or Seller or
for the delivery of any instrument or notice should be on a Saturday, Sunday or
legal holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday. For purposes of this Section 19, "LEGAL HOLIDAY" means any state or
federal holiday for which financial institutions or post offices are generally
closed in ▇▇▇▇▇▇ County, Texas, for the observance thereof.
SECTION 20. TIME OF ACCEPTANCE. Seller shall execute and deliver three
(3) original counterparts to the Title Company with a copy to Purchaser within
three (3) business days of the date of Purchaser's signature hereon. The Title
Company shall promptly receipt for this Agreement in the space provided below
and deliver one fully executed, receipted original of this Agreement to Seller,
shall deliver on fully executed, receipted original of this Agreement to
Purchaser, and shall retain the third original in escrow as provided herein.
For all purposes of this Agreement, the "EFFECTIVE DATE" shall be the date on
which the three fully executed counterpart originals of this Agreement,
executed by Purchaser and Seller, are receipted for by the Title Company
(without regard to when the Title Company receives the ▇▇▇▇▇▇▇ Money).
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SECTION 21. AUTHORITY. Each party to this Agreement and its
representative(s) executing this Agreement on such party's behalf warrants and
represents to the other party that it has the power and authority to enter into
and perform its obligations under this Agreement in the names, titles and
capacities herein stated and on behalf of any entities, persons, estates or
firms represented or purported to be represented by such party or person, and
that all requirements necessary or required by any state and/or federal law or
private agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement on
the dates set forth below, to be effective as of the Effective Date.
SELLER:
TCP RENAISSANCE PARTNERS, L.P.
By: TCP Renaissance, LLC, its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Managing Director
-------------------------
Date: May 24, 2002
-------------------------
PURCHASER:
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: SVP-Manager Corporate
Real Estate & Facilities
-------------------------
Date: May 24, 2002
-------------------------
BROKERS (SOLELY FOR PURPOSES
OF AGREEING TO THE COMMISSION
AGREEMENTS WITH SELLER PER
SECTION 9 OF THIS AGREEMENT):
▇▇▇▇▇▇▇▇ ALLIANCE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: President
------------------------
TRANSWESTERN COMMERCIAL SERVICES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: President, SW Region
------------------------
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CONTRACT RECEIPT
The undersigned representative of the Title Company acknowledges receipt of
three (3) fully executed originals of this Agreement on the 24 day of May 2002
(the "EFFECTIVE DATE").
CHARTER TITLE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Office Manager
▇▇▇▇▇▇▇ MONEY RECEIPT
The undersigned representative of the Title Company acknowledges receipt of
▇▇▇▇▇▇▇ Money from Purchaser in the amount of One Hundred Thousand and NO/100
Dollars ($100,000.00) on the 24 day of May 2002, in the form of expense check
GF#02030197.
CHARTER TITLE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Office Manager
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