EXHIBIT 10.90
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY FOR
IKON BUILDINGS
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 23/rd/ day of July, 2001, by and between SV
RESERVE, L.P., a Texas limited partnership ("Seller") and ▇▇▇▇▇ CAPITAL, INC., a
Georgia corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in
Houston, Texas, containing approximately 15.71 acres, having an address of
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810-820 Gears Road, and being more particularly described on Exhibit "A"
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hereto; and
(b) all rights, privileges, and easements appurtenant to the
Land, including all water rights, mineral rights, reversions, or other
appurtenances to said Land, and all right, title, and interest of Seller,
if any, in and to any land lying in the bed of any street, road, alley, or
right-of-way, open or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the
Land, including, without limitation, two (2) office buildings containing
approximately 157,790 square feet of leasable space, the parking areas
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containing approximately 851 parking spaces and other amenities located on
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the Land, and all apparatus, built-in appliances, equipment, pumps,
machinery, plumbing, heating, air conditioning, electrical and other
fixtures located on the Land (all of which are herein collectively referred
to as the "Improvements"); and
(d) all personal property now owned by Seller and located on the
Land and Improvements ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or
lessor, in and to that certain lease agreement with IKON Office Solutions,
Inc. (the "Tenant"), dated December 17, 1999, together with all
modifications and amendments thereto (the "Lease"); and
(f) all of Seller's right, title, and interest in and to the
plans and specifications with respect to the Improvements and any
guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use and operation of the Land, Personal
Property, or Improvements, all governmental licenses and permits, and all
intangibles associated with the Land, Personal Property, and Improvements,
including the name of the Improvements and the logo therefor, if any.
2. ▇▇▇▇▇▇▇ Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Heritage Title Company, as agent
for Chicago Title Insurance Company ("Escrow Agent"), whose offices are at ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇,
Purchaser's check, payable to Escrow Agent, in the amount of $250,000.00 (the
"▇▇▇▇▇▇▇ Money"), which ▇▇▇▇▇▇▇ Money shall be held and disbursed by Escrow
Agent in accordance with this Agreement. The ▇▇▇▇▇▇▇ Money shall be paid by
Escrow Agent to Seller at Closing (as hereinafter defined) and shall be applied
as a credit to the Purchase Price (as hereinafter defined), or shall otherwise
be paid to Seller or refunded to Purchaser in accordance with the terms of
this Agreement. All interest and other income from time to time earned on the
▇▇▇▇▇▇▇ Money shall remain with and become a part of the ▇▇▇▇▇▇▇ Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be TWENTY MILLION SIX HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($20,650,000.00). The Purchase Price shall be
paid by Purchaser to Seller at the Closing (as hereinafter defined) by cashier's
check or by wire transfer of immediately available federal funds, less the
amount of ▇▇▇▇▇▇▇ Money and subject to prorations, adjustments and credits as
otherwise specified in this Agreement. If Seller has not received good funds by
2:00 p.m. Atlanta, Georgia time on the date of Closing, the adjustments to the
Purchase Price shall be re-prorated as of the first business day following such
date of Closing.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
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Tenant, Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going upon the
Property as needed to inspect, examine, test, and survey the Property at all
reasonable times and upon reasonable prior notice and from time to time.
Purchaser hereby agrees to indemnify, defend and hold Seller harmless from any
liens, claims, liabilities, and damages incurred through the exercise of such
privilege, and Purchaser further agrees to repair any damage to the Property
caused by the exercise of such privilege. All such inspections shall be non-
destructive in nature and specifically shall not include any physically
intrusive testing; provided however, that if Purchaser desires to undertake such
intrusive testing, Purchaser shall first obtain Seller's written approval which
shall not be unreasonably withheld if Purchaser conducts such testing in
accordance with commercially customary standards; and provided further that if
Purchaser's Phase I Environmental Report recommends a Phase II investigation,
Seller shall be entitled to withhold its consent to such investigation in its
sole discretion. At all reasonable times prior to the Closing (as hereinafter
defined), Seller shall make available to Purchaser, or Purchaser's agents and
representatives, for review and copying, all books, records, and files in
Seller's possession relating to the operation of the Property, including,
without limitation, title matters, surveys, tenant files, service and
maintenance agreements, and other contracts, books, records, operating
statements, and other information relating to the Property; provided, however,
Seller shall not be required to deliver or make available to Purchaser any
appraisals, budgets, strategic plans, internal analyses, information regarding
the marketing of the Property for sale, attorney and accountant work product or
privileged documents and/or other information which would not be relevant in
connection with a customary due diligence investigation of a property comparable
to the Property. Seller further agrees to provide to Purchaser prior to the
date which is five (5) days after the effective date of this Agreement, to the
extent the same are in the possession of or under the control of Seller, the
most current boundary and "as-built" surveys of the Land and Improvements and
any title insurance policies, building inspection reports, environmental
reports, certificates of occupancy, building permits, ad valorem tax bills,
certificates of insurance and instruments reflecting the approval of any
association governing the Property relating thereto. Seller further agrees to
assist in good faith and cooperate with Purchaser in the review of the books,
records, and files relating to the Property. At no cost to Seller, Seller shall
request the authors of existing environmental reports to issue reliance
letters addressed to Purchaser and Purchaser's lender, if any, and provide
Purchaser with an introduction so Purchaser might pursue the matter. If the
Closing is not consummated hereunder, Purchaser shall promptly deliver copies of
all reports, surveys and other information furnished to Purchaser by third
parties in connection with Purchaser's inspections of the Property; provided
however, that the delivery of such copies and information shall be without
warranty or representation whatsoever, express or implied. Purchaser shall
maintain and shall insure that Purchaser and Purchaser's consultants and
contractors maintain public liability insurance and property damage insurance in
an amount not less than Two Million Dollars ($2,000,000) and in form and
substance adequate to insure against all liability of Purchaser and its
consultants and contractors, respectively, and each of their respective agents,
employees and contractors, arising out of inspections and testing of the
Property or any part thereof made on Purchaser's behalf and, at Seller's
request, Purchaser shall furnish Sellers with appropriate certificates and
endorsements reflecting Seller as an additional insured under any such
insurance.
5. Special Condition to Closing. Purchaser shall have to and through
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August 27, 2001 (the "Inspection Period") to make investigations, examinations,
inspections, market studies, feasibility studies, lease reviews, and tests
relating to the Property and the operation thereof in order to determine, in
Purchaser's sole opinion and discretion, the suitability of the Property for
acquisition by Purchaser. Purchaser shall have the right to terminate this
Agreement at any time prior to the expiration of the Inspection Period by giving
written notice to Seller of such election to terminate. In the event Purchaser
so elects to terminate this Agreement, Seller shall be entitled to receive and
retain the sum of Twenty-Five Dollars ($25.00) of the ▇▇▇▇▇▇▇ Money, and the
balance of the ▇▇▇▇▇▇▇ Money
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shall be promptly refunded by Escrow Agent to Purchaser, whereupon, except as
expressly provided to the contrary in this Agreement, no party hereto shall have
any other or further rights or obligations under this Agreement. Seller
acknowledges that the sum of $25.00 is good and adequate consideration for the
termination rights granted to Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the conditions to Purchaser's obligations set forth in
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Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of
Closing (as hereinafter defined).
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) The Title Company shall be prepared to issue to Purchaser upon the
Closing a fee simple owner's title insurance policy on the Land and
Improvements without exceptions other than as described in paragraph 7
pursuant to the Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate
referred to in Paragraph 9(c) hereof, duly executed by the Tenant (as
hereinafter defined) at least five (5) business days prior to Closing.
(e) Tenant shall be in possession of its premises under the Lease, and
rent shall have Commenced under the Lease.
7. Title and Survey. Seller covenants and agrees that Seller shall, on
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or before ten (10) days after the Effective Date of this Agreement, cause
Chicago Title Insurance Company, or such other such title insurance company
acceptable to Purchaser (herein referred to as the "Title Company"), to deliver
to Purchaser its commitment (herein referred to as the "Title Commitment") to
issue to Purchaser, upon the recording of the Deed conveying title to the
Property from Seller to Purchaser, the payment of the Purchase Price, and the
payment to the Title Company of the policy premium therefor, an owner's policy
of title insurance, in the amount of the Purchase Price, insuring good and
marketable fee simple record title to the Property to be in Purchaser subject
only to the Permitted Exceptions (as hereinafter defined), with affirmative
coverage over any mechanic's, materialman's and subcontractor's liens. Such
Title Commitment shall not contain any exception for rights of parties in
possession other than an exception for the right of the Tenant under the Lease.
If the Title Commitment shall contain an exception for the state of facts which
would be disclosed by a survey of the Property or an "area and boundaries"
exception, the Title Commitment shall provide that such exception will be
deleted upon the presentation of the Texas equivalent of an ALTA/ASCM survey
acceptable to Title Company, in which case the Title Commitment shall be amended
to contain an exception only for the matters shown on the as-built survey which
Purchaser shall obtain at its sole cost and expense. Seller shall also cause to
be delivered to Purchaser together with such Title Commitment, legible copies of
all documents and instruments referred to therein. Purchaser, upon receipt of
the Title Commitment and the copies of the documents and instruments referred to
therein, shall then have twenty (20) days during which to examine the same,
after which Purchaser shall notify Seller in writing (the "Objection Notice") of
any defects or objections affecting the marketability of the title to the
Property. In the event the Objection Notice is not timely delivered to Seller,
then except for matters arising subsequent to the effective date of the Title
Commitment and Monetary Liens, Purchaser shall be deemed to have waived all
other title objections and such matters which are not objected to in the
Objection Notice shall be deemed a "Permitted Exception." Within five (5) days
after Seller's receipt of the Objection Notice, Seller shall deliver to
Purchaser a written notice (the "Response Notice") indicating whether Seller
elects to cure the objections identified in the Objection Notice, except that in
all events Seller shall be required to cure the following: outstanding deeds of
trust and other security interests arising by, through or under Seller,
undisputed mechanics and materialmen's liens, delinquent ad valorem property
taxes and assessments and judgment liens ("Monetary Liens"). Failure to timely
deliver a Response Notice shall be deemed to be an election by Seller not to
cure any matters described in the Objection Notice. In the event Seller elects
in the Response Notice not to cure any of Purchaser's objections in the
Objection Notice, Purchaser may elect to terminate this Agreement and receive
the ▇▇▇▇▇▇▇ Money by delivery within three (3) days after Purchaser's
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receipt of the Response Notice or Seller's deemed election, of a written notice
of termination (the "Election Notice"). In the event Purchaser fails to timely
elect to terminate this Agreement through the delivery of an Election Notice,
Purchaser shall be deemed to elect not to terminate this Agreement pursuant to
this Paragraph 7, and Seller shall convey title subject to the matters set forth
in the Objection Notice which Seller has not agreed to cure, provided that in
all events, Seller shall cure Monetary Liens.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease. Attached hereto as Exhibit "C" is a true and accurate copy
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of the Lease, which is the only lease in effect relating to the Property.
Seller is the "landlord" under the Lease and owns unencumbered legal and
beneficial title to the Lease and the rents and other income thereunder,
subject only to the collateral assignment of the Lease and the rents
thereunder in favor of the holder of an existing mortgage or deed of trust
encumbering the Property, which mortgage or deed of trust shall be
cancelled and satisfied by Seller at the Closing.
(b) Lease - Assignment. To the Seller's actual knowledge, the Tenant
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has not assigned its interest in the Lease or sublet any portion of the
premises leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any written notice of
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termination or default under the Lease, (ii) there are no existing or
uncured defaults by Seller or to Seller's actual knowledge by the Tenant
under the Lease, (iii) to Seller's actual knowledge, there are no events
which with the passage of time or notice, or both, would constitute a
default by Seller or by the Tenant, and Seller has complied with each and
every undertaking, covenant, and obligation of Seller under the Lease
required through the date hereof, and (iv) to Seller's actual knowledge,
Tenant has not asserted in writing any defense, set-off, or counterclaim
with respect to its tenancy or its obligation to pay rent, additional rent,
or other charges pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant : (i) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection
with its tenancy under the Lease other than as described in the Lease,
(iii) is not entitled to any special work (not yet performed), or
consideration (not yet given) in connection with its tenancy under the
Lease, and (iv) does not have any deed, option, or other evidence of any
right or interest in or to the Property, except for the Tenant's tenancy as
evidenced by the express terms of the Lease. This representation shall not
survive Closing if and to the extent such matters are covered in the Tenant
Estoppel Certificate.
(e) Lease - Commissions. No rental, lease, or other commissions with
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respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or any
third party whatsoever, except any such commissions which have been cashed-
out and paid and satisfied in full by Seller or by Seller's predecessor in
title to the Property.
(f) Lease - Acceptance of Premises. (i) Tenant has accepted its leased
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premises located within the Property, including any and all work performed
therein or thereon pursuant to the Lease, (ii) Tenant is in full and
complete possession of its premises under the Lease, and (iii) Seller has
not received any written notice from the Tenant that the Tenant's premises
are not in full compliance with the terms and provisions of Tenant's Lease
or are not satisfactory for Tenant's purposes.
(g) No Other Agreements. Other than the Lease, the Permitted
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Exceptions and those matters, if any, described on Exhibit "B" hereto,
there are no leases, service contracts, management agreements, or other
agreements or instruments in force and effect, oral or written, to which
Seller is a party and that grant to any person whomsoever or any entity
whatsoever any right, title, interest or benefit in or to all or any part
of the Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to Seller's actual knowledge, threatened by any organization,
person, individual, or governmental agency against Seller with respect to
the Property or against the Property. Seller has no knowledge of any
pending or threatened
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application for changes in the zoning applicable to the Property or any
portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain of
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the Property or any portion thereof has been instituted and, to Seller's
actual knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Intentionally Omitted.
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(k) No Assessments. To Seller's actual knowledge, no assessments have
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been made against the Property that are unpaid, whether or not they have
become liens.
(l) Condition of Improvements. To the best of Seller's actual
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knowledge, there are no latent structural or other defects, in the
Improvements. This representation shall not survive Closing if and to the
extent such matters are covered in the Tenant Estoppel Certificate.
(m) Certificates. There has been no written notice or request of any
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municipal department, insurance company or board of fire underwriters (or
organization exercising functions similar thereto), or mortgagee directed
to Seller and requesting the performance of any work or alteration to the
Property which has not been complied with.
(n) Violations. Seller has received no written notice of any
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property.
(o) Intentionally Omitted.
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(p) Intentionally Omitted.
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(q) Bankruptcy. Seller is "solvent as said term is defined by
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bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(r) Pre-existing Right to Acquire. No person or entity has any right
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or option to acquire the Property or any portion thereof which will have
any force or effect after the execution of this Agreement, other than
Purchaser.
(s) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Lease or the Permitted Exceptions.
(t) Authorization. Seller is a duly organized and validly existing
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limited partnership under the laws of the State of Texas. This Agreement
has been duly authorized and executed on behalf of Seller and constitutes
the valid and binding agreement of Seller, enforceable in accordance with
its terms, and all necessary action on the part of Seller to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
(u) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(v) Intentionally Omitted.
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(w) Contracts. Other than the Lease and the Permitted Exceptions,
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there are no and Seller shall not enter into any service, management or
maintenance contracts which are not terminable by Seller (or, after the
Closing Date, by Purchaser) upon not more than thirty (30) days notice, or
which, by their
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terms, have been fully performed, complied with or terminated (and are of
no further force or effect) on or as of the Closing Date.
(x) Knowledge Defined. References to the "knowledge" of Seller shall
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refer only to the actual knowledge of the Designated Employees (as
hereinafter defined) of The Brookdale Group and shall not be construed, by
imputation or otherwise, to refer to the knowledge of any affiliate, to any
property manager, or to any other officer, agent, manager, representative
or employee of The Brookdale Group, or to impose upon such Designated
Employee any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains. As used herein, the term
"Designated Employee" shall refer to ▇.▇. ▇▇▇▇▇▇▇▇, III, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(y) Representations and Warranties. The representations and
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warranties of Seller set forth in this Section 8 as updated by the
certificate of Sellers to be delivered to Purchaser at Closing shall
survive Closing for a period of one (1) year. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable (a) if
the breach in question results from or is based on a condition, state of
facts or other matter which was known to Purchaser prior to Closing, (b)
unless the valid claims for all such breaches collectively aggregate more
than Fifty Thousand Dollars ($50,000), in which event the full amount of
such valid claims shall be actionable, up to but not exceeding the amount
of the Cap (as defined below), and (c) unless written notice containing a
description of the specific nature of such breach shall have been given by
Purchaser to Seller prior to the expiration of said ninety (90)-day period
and an action shall have been commenced by Purchaser against Seller within
one hundred eighty (180) days of Closing. As used herein, the term "Cap"
shall mean the total aggregate amount of $2,000,000. In no event shall
Seller's aggregate liability to Purchaser for breach of any representation
or warranty of Seller in this Agreement or the certificate to be delivered
by Seller at Closing pursuant to this Section 8 exceed the amount of the
Cap.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to
Purchaser expressly and in writing at any time and from time to time prior to
Closing upon their occurrence, which disclosures shall thereafter be updated by
Seller to the date of Closing. If there is any material change in any
representations or warranties and Seller does not cure or correct such changes
prior to Closing, then Purchaser may, at Purchaser's option, (i) close and
consummate the transaction contemplated by this Agreement, or (ii) terminate
this Agreement by written notice to Seller, whereupon the ▇▇▇▇▇▇▇ Money shall be
immediately returned by Escrow Agent to Purchaser, and thereafter the parties
hereto shall have no further rights or obligations hereunder, except only (1)
for such rights or obligations that, by the express terms hereof, survive any
termination of this Agreement, and (2) that Purchaser shall have the right to
seek monetary damages from Seller for any changes in such representations and
warranties intentionally and willfully caused by Seller or any such
representations and warranties intentionally and willfully breached by Seller
and not within the actual knowledge of Purchaser at the time of Closing.
ACKNOWLEDGING PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY,
PURCHASER AGREES TO TAKE THE PROPERTY "AS IS" WITH ALL FAULTS AND CONDITIONS
THEREON, SUBJECT, HOWEVER, TO THE REPRESENTATIONS AND WARRANTIES OF SELLER MADE
IN THIS AGREEMENT. EXCEPT FOR ANY SPECIFIC REPRESENTATION OR WARRANTY MADE BY
SELLER IN THIS AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES (I) THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY CONDUCT THEREON, (C) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, OR (D) THE HABITABILITY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, AND (II) THAT NEITHER SELLER
NOR ANY OF SELLER'S EMPLOYEES, AGENTS OR ATTORNEYS NOR ANY OF THEIR RESPECTIVE
DIRECT OR INDIRECT PARTNERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
ADVISORS,
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EMPLOYEES, AGENTS, TRUSTEES, SHAREHOLDERS, BENEFICIARIES, CONTRACTORS OR
REPRESENTATIVES ARE MAKING OR SHALL BE DEEMED TO HAVE MADE ANY EXPRESS IMPLIED
REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend, or terminate the
Lease or enter into any new lease respecting the Property, (iii) not grant
or otherwise create or consent to the creation of any easement,
restriction, lien, assessment, or encumbrance respecting the Property, and
(iv) cause the Property to be operated, maintained, and repaired in the
same manner as the Property is currently being operated, maintained, and
repaired.
(b) Preservation of Lease. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its good faith efforts to
perform and discharge all of the duties and obligations and shall otherwise
comply with every covenant and agreement of the landlord under the Lease,
at Seller's expense, in the manner and within the time limits required
thereunder, including, without limitation, those actions necessary to place
Tenant in possession and commence the payment of rent. Furthermore, Seller
shall, for the same period of time, take such actions as are reasonably
necessary to enforce the terms and provisions of the Lease. Seller hereby
agrees that from and after full execution of this Agreement, Seller shall
not credit any portion of the security deposit, if any, against defaults or
delinquencies of the Tenant under the Lease.
(c) Tenant Estoppel Certificate. Seller shall use commercially
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reasonable efforts to obtain and deliver to Purchaser on or before five (5)
business days prior to Closing a fully completed estoppel certificate with
respect to the Lease in substantially the form of Exhibit "D" (the "Tenant
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Estoppel Certificate"), duly executed by the Tenant thereunder. The Tenant
Estoppel Certificate shall be executed as of a date not more than thirty
(30) days prior to Closing. Purchaser agrees to accept a form which does
not contain paragraphs 15 and 16 so long as Seller submits a bona fide
request therefore to Tenant.
(d) Insurance. From and after the date of this Agreement to the date
---------
and time of Closing, Seller shall, at its expense, cause to be maintained
in full force and effect the insurance coverage currently in effect on the
Property.
(e) Covenant to Satisfy Conditions; Effect of Failure to Satisfy.
------------------------------------------------------------
Seller hereby agrees to use commercially reasonable efforts to cause each
of the conditions precedent to the obligations of Purchaser to be fully
satisfied, performed and discharged, on and as of the Closing Date.
10. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 2:00 p.m.,
local time, on September 17, 2001, at the offices of Title Company, or at such
earlier time as shall be agreed by the parties.
11. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Limited or Special Warranty Deed. A Limited or Special Warranty
--------------------------------
Deed (the "Deed") conveying to Purchaser marketable fee simple title to the
Land and Improvements, together with all rights, easements, and
appurtenances thereto, subject only to the Permitted Exceptions in form and
substance reasonably acceptable to Title Company;
(b) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale conveying to Purchaser marketable
------------
title to the Personal
7
Property in the form and substance of Exhibit "F";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "G";
-----------
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "H", assigning to Purchaser
-----------
all of Seller's right, title, and interest in and to the Lease and the
rents thereunder;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as Purchaser
------------------
shall reasonably approve;
(g) Certificates of Occupancy. The original Certificates of occupancy
-------------------------
for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment, marked to change
-----------------------
the effective date thereof through the date and time of recording the Deed
from Seller to Purchaser, to reflect that Purchaser is vested with the fee
simple title to the Land and the Improvements, and to reflect that all
requirements for the issuance of the final title policy pursuant to such
Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of
-------------
the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(l) Association/Governing Board Estoppels. An estoppel signed by an
-------------------------------------
authorized representative of any association, governing board, or other
entity governing the Property addressed to Purchaser and any lender to the
effect that neither the Seller nor the Property are in default under any of
the applicable instruments and that current charges and/or assessments have
been paid; and
(m) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute and
-----------------------------
deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption of
----------------------------------
Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
-------------
including the cost of the examination of title to the Property made in
connection therewith, and the premium for the owner's policy of title insurance
issued pursuant thereto at standard rates. Seller shall pay the cost of any
transfer or documentary tax imposed by any jurisdiction in which the Property is
located, the attorneys' fees of Seller, and all other costs and expenses
incurred by Seller in closing and consummating the purchase and sale of the
Property pursuant hereto.
8
Purchaser shall pay the cost of any survey obtained by Purchaser, the attorneys'
fees of Purchaser, and all other costs and expenses incurred by Purchaser in
closing and consummating the purchase and sale of the Property pursuant hereto.
Each party shall pay one-half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing.
Purchaser shall also receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by Tenant for any period following the month of
Closing, or otherwise.
(b) Property Taxes. City, state, county, and school district ad
--------------
valorem taxes based on the ad valorem tax bills for the Property, if then
available, or if not, then on the basis of the latest available tax figures
and information. Should such proration be based on such latest available
tax figures and information and prove to be inaccurate upon receipt of the
ad valorem tax bills for the Property for the year of Closing, either
Seller or Purchaser, as the case may be, may demand at any time after
Closing a payment from the other correcting such malapportionment. In
addition, if after Closing there is an adjustment or reassessment by any
governmental authority with respect to, or affecting, any ad valorem taxes
for the Property for the year of Closing or any prior year, any additional
tax payment for the Property required to be paid with respect to the year
of Closing shall be prorated between Purchaser and Seller and any such
additional tax payment for the Property for any year prior to the year of
Closing shall be paid by Seller. This agreement shall expressly survive the
Closing.
(c) Utility Charges. Except for utilities which are the
---------------
responsibility of Tenant, Seller shall pay all utility bills received prior
to Closing and shall be responsible for utilities furnished to the Property
prior to Closing. Purchaser shall be responsible for the payment of all
bills for utilities furnished to the Property subsequent to the Closing.
Seller and Purchaser hereby agree to prorate and pay their respective
shares of all utility bills received subsequent to Closing, which agreement
shall survive Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the ▇▇▇▇▇▇▇ Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that the ▇▇▇▇▇▇▇ Money
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages. Seller agrees that in the event of default by
Purchaser, it shall not initiate any proceeding to recover damages from
Purchaser, but shall limit its recovery to the retention of the ▇▇▇▇▇▇▇ Money.
16. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, including, without limitation, the failure of Seller to cure
any title defects or objections, except as otherwise specifically set forth
herein, at Purchaser's option: (i) if any such defects or objections constitutes
a Monetary Lien, Purchaser shall have the right to cure such defects or
objections, in which event the Purchase Price shall be reduced by an amount
equal to the costs to satisfy, bond over or insure over such defects or
objections, and upon such curing, the Closing hereof shall proceed in accordance
with the terms of this Agreement; or (ii) Purchaser shall have the right to
terminate this Agreement by giving written notice of such termination to Seller,
whereupon Escrow Agent shall promptly refund all ▇▇▇▇▇▇▇ Money to Purchaser, and
Purchaser and Seller shall have no further rights, obligations, or liabilities
hereunder, except as may be expressly provided to the contrary herein; or (iii)
Purchaser shall have the right to accept title to the Property subject to such
defects and objections with no reduction in the Purchase Price, in which event
such defects and objections shall be deemed "Permitted Exceptions"; or (iv)
Purchaser may elect to seek specific performance of this Agreement. Purchaser
hereby waives the right to seek and obtain damages by reason of any default by
Seller except as provided in Section 8 hereof.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain and in either instance
9
the Lease is terminable or rent thereunder may be reduced or abated, Seller
shall give Purchaser immediate written notice of such threatened or contemplated
condemnation or of such taking or sale, and Purchaser may by written notice to
Seller given within fifteen (15) days of the receipt of such notice from Seller,
elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in
accordance with this Paragraph 17, then the ▇▇▇▇▇▇▇ Money shall be returned
immediately to Purchaser by Escrow Agent and the rights, duties, obligations,
and liabilities of the parties hereunder shall immediately terminate and be of
no further force and effect. If Purchaser does not elect to cancel this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds $250,000.00 or if the Lease shall terminate as a result of such damage,
Purchaser may, by written notice given to Seller within fifteen (15) days after
receipt of written notice from Seller of such damage or destruction, elect to
terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money shall immediately be
returned by Escrow Agent to Purchaser and except as expressly provided herein to
the contrary, the rights, duties, obligations, and liabilities of all parties
hereunder shall immediately terminate and be of no further force or effect. If
Purchaser does not elect to terminate this Agreement pursuant to this Paragraph
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed $250,000.00 and the Lease remains in full force and
effect), and the sale of the Property is consummated, Purchaser shall be
entitled to receive all insurance proceeds paid or payable to Seller by reason
of such destruction or damage under the insurance required to be maintained by
Seller pursuant to Paragraph 9(d) hereof (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
19. Hazardous Substances. Seller hereby warrants and represents to the
--------------------
best of Seller's actual knowledge, that except as disclosed in that certain
Phase I Environmental Site Assessment (the "Environmental Site Assessment"),
dated October 7, 1998, prepared by Associated Environmental Consultants,
Inc. (i) no "hazardous substances", as that term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et. seq., the Resource Conservation and Recovery Act, as
-- ---
amended, 42 U.S.C. Section 6901 et. seq., and the rules and regulations
-- ---
promulgated pursuant to these acts, any so-called "super-fund" or "super-lien"
laws or any applicable state or local laws, nor any other pollutants, toxic
materials, or contaminants have been discharged, disbursed, released, stored,
treated, generated, disposed of, or allowed to escape on the Property by Seller
in violation of applicable laws, (ii) no asbestos or asbestos containing
materials have been installed, used, incorporated into the Improvements, or
disposed of on the Property by Seller, (iii) no polychlorinated biphenyls are
located on or in the Property, in the form of electrical transformers,
fluorescent light fixtures with ballasts, cooling oils, or any other device or
form, (iv) no underground storage tanks are located on the Property or were
located on the Property and subsequently removed or filled, (v) Seller has
received no written notice of an investigation, administrative order, consent
order and agreement, litigation, or settlement with respect to Hazardous
Substances that is proposed, threatened, or in existence with respect to the
Property, and (vi) the Property has not previously been used as a landfill,
cemetery, or as a dump for garbage or refuse. Seller further warrants and
represents that it has no actual knowledge of any of the foregoing matters other
than as set forth in the Environmental Site Assessment.
20. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to a party under the control of controlled by or under
common control with Purchaser without the consent of Seller which consent shall
not be unreasonably withheld.
21. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to Real Estate Resource Partners ("Seller's Broker") and
Purchaser has by separate agreement agreed to pay a brokerage commission to ▇▇▇▇
▇▇▇▇▇ Company ("Purchaser's Broker") (collectively, the "Broker"). Purchaser
and Seller hereby represent each to the other that they have not discussed this
Agreement or the subject matter hereof with any real estate broker or agent
other than the aforesaid Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the conveyance
of the Property contemplated by this
10
Agreement. Seller shall and does hereby indemnify and hold harmless Purchaser
from and against any claim, whether or not meritorious, for any real estate
sales commission, finder's fees, or like compensation in connection with the
sale contemplated hereby and arising out of any act or agreement of Seller,
including any claim asserted by Broker and any broker or agent claiming under
Seller's Broker or Seller. Likewise, Purchaser shall and does hereby indemnify
and hold harmless Seller from and against any claim, whether or not meritorious,
for any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Purchaser, including any such claim asserted by Purchaser's Broker
and any broker or agent claiming under Purchaser's Broker or Purchaser. This
Paragraph 21 shall survive the Closing or any termination of this Agreement.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, or sent by facsimile (with
confirmation of transmission) to the addresses and/or facsimile numbers set out
below or at such other addresses as are specified by written notice delivered in
accordance herewith:
PURCHASER: c/▇ ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇'▇▇▇▇▇▇▇▇▇ & Stumm LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SELLER: c/o Brookdale Group, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to : King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or other communication mailed as herein above provided shall be
deemed effectively given or received on the date of delivery, if delivered by
hand, by overnight courier or facsimile, or otherwise on the third (3rd)
business day following the postmark date of such notice or other communication.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement for a period of one (1) year
from Closing.
26. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the
11
extent permitted by, all applicable laws, ordinances, rules, and regulations. If
any provision of this Agreement, or the application thereof to any person or
circumstance, shall, for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby but
rather shall be enforced to the greatest extent permitted by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Texas. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller.
30. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify
and hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
[Signatures commence on next page]
==================================
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
SV RESERVE, L.P., a Georgia limited partnership
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, III
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇. III
Its: President
"PURCHASER":
▇▇▇▇▇ CAPITAL, INC., a Georgia corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Its: President
---------------------------------
"ESCROW AGENT":
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: Commercial Escrow Officer
---------------------------------
"SUBJECT TO THE TERMS
AND CONDITIONS CONTAINED
IN THE ATTACHED ▇▇▇▇▇▇▇
MONEY RECEIPT."
13
[LETTERHEAD OF HERITAGE TITLE COMPANY]
▇▇▇▇▇▇▇ MONEY RECEIPT
Date: July 24, 2001
RE: GF# 00010949; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. to TBD; Reserves A and B of Greens
Crossing, Plat in 308, Page 2 Map Records of ▇▇▇▇▇▇ County, Texas and
All of that tract or parcel of land located west of Reserves A and B of
Greens Crossing Section Four and west of Greens Crossing Section 8 and
so
Heritage Title Company of Austin, Inc., as Escrow Agent, hereby acknowledges
receipt of Purchaser's wire transfer in the amount of $250,000.00, tendered as
▇▇▇▇▇▇▇ Money to be held by Escrow Agent in accordance with the terms and
conditions of the attached Agreement for the Purchase and Sale of Property.
Escrow Agent does not assume and shall not incur any liability, implied or
otherwise, as a result of any banking institution's dishonor of said check for
any reason, or the performance or non-performance by any party to the agreement.
If the check is dishonored for any reason after being deposited for collection,
Escrow Agent may, at its option, notify all parties to the transaction of said
dishonor, require that any replacement of dishonored check be accomplished with
a Cashier's Check or deposit by wire transfer of funds, and collect any banking
charges incurred by Escrow Agent as a result of said dishonor.
The ▇▇▇▇▇▇▇ Money has been deposited into The Chase Manhattan Bank, Austin,
Texas. Escrow Agent shall not be liable for any interest or other charge on the
funds held and shall assume no liability for the funds until said check is
cleared through regular channels of banking. Escrow Agent shall not refund or
invest the funds until it has received collected funds into its escrow account.
Please be advised of the following critical elements associated with Escrow
Agent's receipt of these funds:
In the event Purchaser has additional deposit accounts at the above
referenced banking institution, the ▇▇▇▇▇▇▇ Money will be added to the
total funds deposited on behalf of Purchaser so as to be included in any
insurance limits. PLEASE NOTIFY ESCROW AGENT IMMEDIATELY IF THE ▇▇▇▇▇▇▇
MONEY SHOULD BE PLACED WITH ANOTHER BANKING INSTITUTION.
This ▇▇▇▇▇▇▇ Money has been deposited into a NON-INTEREST BEARING ACCOUNT.
IF THE PURCHASER SHOULD REQUEST OR THE CONTRACT REQUIRE THE ▇▇▇▇▇▇▇ MONEY
TO BE DEPOSITED INTO AN INTEREST BEARING ACCOUNT, ESCROW AGENT MUST BE
CONTACTED AS ADDITIONAL REQUIREMENTS ARE NECESSARY FOR THE HANDLING OF SUCH
ACCOUNTS, including Purchaser's execution of a Form W-9 and an
Authorization to Invest Funds. Service Fees may be incurred for any amounts
less than $5,000.00.
Escrow Agent may, at its sole option, require a written release and
authorization signed by all parties before paying the ▇▇▇▇▇▇▇ Money Deposit
to any or either party.
HERITAGE TITLE COMPANY OF AUSTIN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Commercial Escrow Officer
Heritage Title Company of Austin, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ . ▇▇▇▇▇ ▇▇▇ . ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ . 512/505-5000 .
Fax 512/▇▇▇-▇▇▇▇
Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Exhibit "B" - Not Used
Exhibit "C" - Copy of Lease
Exhibit "D" - Tenant Estoppel Certificate Form
Exhibit "E" - Not Used
Exhibit "F" - ▇▇▇▇ of Sale Form
Exhibit "G" - Blanket Transfer and Assignment Form
Exhibit "H" - Assignment and Assumption of Lease Form
EXHIBIT "A"
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LEGAL DESCRIPTION
The surface estate only of unrestricted Reserve "A" Block 1, RESERVE AT GREENS
CROSSING, a subdivision in ▇▇▇▇▇▇ County, Texas, according to map or plat
thereof, recorded in Clerk's File No. T681583, Film Code No. 418068 of the Map
Records of ▇▇▇▇▇▇ County, Texas.