PURCHASE AND SALE AGREEMENT FOR 1910 PACIFIC AVENUE
Exhibit 10.4
This Purchase and Sale Agreement (this “Agreement”) is entered into as of March 26, 2010
(the “Execution Date”, the date of receipt by Title Company of the fully executed Agreement
and ▇▇▇▇▇▇▇ Money), between GREIT-Pacific Place, LP, a Delaware limited partnership,
(“Seller”) and BOXER F2, L.P., a Texas limited partnership (“Purchaser”).
In consideration of the mutual covenants set forth herein and in consideration of the payment
herein called for, whose receipt and sufficiency are acknowledged by Seller, the parties 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(s) or parcel(s) of land located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, commonly
known as “Pacific Place”, more particularly described in Exhibit A, together with all
easements, rights and interests appurtenant thereto owned by Seller now or on the Closing Date (as
hereafter defined)(the “Land”); all improvements located on the Land, including an office
building with parking garage (the “Improvements”); and all rights, titles, and interests
appurtenant to the Land and Improvements;
(b) all tangible personal property and fixtures of any kind now owned or acquired by Seller
and located and used in connection with the ownership, maintenance, use, service, or operation of
the Land or Improvements as of the Closing Date, as hereafter defined) (the “Personalty”);
(c) to the extent assignable by Seller, all of the following: (1) contracts or agreements,
such as maintenance, service, upgrade, purchase agreements, or utility contracts, except those that
are cancelable (without default and without the payment of a penalty and/or termination fee) that
Purchaser elects to cancel, and Purchaser agrees to give notice of such election ten days before
Closing (collectively, the “Property Agreements”), (2) warranties, guaranties, indemnities,
and claims, (3) licenses, permits, or similar documents, and (4) plans, drawings, specifications,
surveys, third-party engineering reports, and other technical information to the extent Seller
possesses any of the same;
(d) assignment of that certain Parking Garage Lease dated May 31, 1983, as amended (the
“Parking Lease”) between Seller as Lessee and Berkeley First City, L.P. as Lessor, for the
Premises located within that certain parking garage located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ (the
“Parking Garage”).
The above listed items are herein collectively called the “Property”. All of the Property
shall be sold, conveyed, and assigned to Purchaser at Closing (defined below) free and clear of all
liens, claims, easements, and encumbrances whatsoever except for the Permitted Encumbrances
(defined below).
Section 2. Purchase Price. The price for which Seller shall sell, convey, and assign
the Property to Purchaser, and which Purchaser shall pay to Seller, is FIVE MILLION THREE HUNDRED
THOUSAND AND 00/100 Dollars ($5,300,000.00) (the “Purchase Price”), to be paid in cash as
set forth in Section 8(a)(1), subject to the deduction of standard prorations and deposits
as set forth in Section 8.
Section 3. ▇▇▇▇▇▇▇ Money. Contemporaneously with execution of the Agreement, by
Seller and Purchaser, the Purchaser shall deliver the fully executed Agreement into escrow with
▇▇▇▇▇▇▇ Title (“Title Company”), whose address is ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇, Approved Attorney, tel: 713/▇▇▇-▇▇▇▇, fax: 713/▇▇▇-▇▇▇▇, email
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and deliver immediately available funds in the amount of TWO HUNDRED
THOUSAND AND NO/100 DOLLARS ($200,000.00) (the “▇▇▇▇▇▇▇ Money”). The Title Company shall
receipt and date the Agreement. As used in this Agreement, the term “▇▇▇▇▇▇▇ Money” shall
mean the ▇▇▇▇▇▇▇ Money and all interest earned thereon while in the custody of Title Company. One
Hundred Dollars and NO/100 ($100.00) of the ▇▇▇▇▇▇▇ Money shall be non-refundable, independent
consideration for the Agreement. If Purchaser does not timely deposit the ▇▇▇▇▇▇▇ Money, then, at
any time prior to Purchaser’s actual deposit of the ▇▇▇▇▇▇▇ Money, Seller shall have the right to
terminate this Agreement. In the event Seller terminates this Agreement as provided in the
preceding sentence, this Agreement shall immediately terminate and be of no further effect. The
Title Company shall deposit the ▇▇▇▇▇▇▇ Money in a government insured interest bearing account upon
receipt from Purchaser of a W-9 and tax id number, and shall not commingle the ▇▇▇▇▇▇▇ Money with
any funds of Escrow Agent or others. The ▇▇▇▇▇▇▇ Money shall be nonrefundable upon deposit with
the Title Company, except only as expressly provided in this Agreement. At Closing, the ▇▇▇▇▇▇▇
Money shall be credited to the Purchase Price.
Section 4. Delivery of Information.
(a) Seller has caused (or will cause to be delivered within three (3) days of the Execution
Date) to be delivered to Purchaser the following:
| (1) | Commitment for Title Insurance (the “Title Commitment”)
from the Title Company setting forth the status of the title of the Land and
Improvements and showing all liens, claims, encumbrances, easements,
rights-of-way, encroachments, reservations, restrictions, and all other matters
of record affecting the Land or Improvements, together with legible copies (to
the extent available) of all exception instruments listed in the Title
Commitment. No delay by Purchaser in obtaining the Title Commitment shall be
deemed to delay the commencement or expiration of the Title Review Period. |
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| (2) | A copy of the existing survey (the “Existing Survey”)
of the Land and Improvements. |
| (3) | A copy of all third-party engineering and technical reports,
architectural drawings and plans, to the extent in the possession of Seller or
its representatives that concern the Land or Improvements, including soil
testing reports and reports of environmental or hazardous waste inspections or
surveys (i.e., existing Phase I Environmental Site Assessment), to the extent
in Seller’s possession. |
||
| (4) | Copies of any licenses, permits and governmental authorizations
in Seller’s possession. |
||
| (5) | Copies of all Property Agreements or other similar contracts or
agreements with respect to or affecting the Land and Improvements. |
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| (6) | Copies of income and expense statements, and capital
expenditures for the Property, in the form kept by Seller, for the last two (2)
years (Year-End 2008 and 2009) as well as Year-to-Date 2010. |
Purchaser shall, upon written request of Seller, confirm in writing its receipt of the Documents
listed above. During the Inspection Period (defined below), Seller shall continue to provide, or
cause to be provided, such other information concerning the Property, to the extent in Seller’s
possession, which Purchaser, its attorneys, accountants or other representatives, shall reasonably
request.
(B) The documents described in Section 4(a) are herein collectively called the
“Documents”, and the information contained in the Documents is herein collectively called
the “Information”. Seller makes no representations or warranties of any kind to Purchaser,
and disclaims any warranty or representation, of the accuracy or reliability of any of the
Documents and Information, save and except as provided in Section 7(a) below. Purchaser
shall not disseminate information furnished to it by Seller, except to its agents and
representatives. If this Agreement is terminated, Purchaser shall deliver to Seller copies of all
reports, studies, data, and other information acquired by Purchaser or its representatives in
connection with inspections of the Property. If Purchaser does not purchase the Property for any
reason whatsoever, then Purchaser shall deliver to Seller all such reports, studies, data,
information and copies thereof in Purchaser’s or its agent’s possession or control. Purchaser’s
obligations under this Section 4 shall survive the termination of this Agreement.
Section 5. Right of Inspection.
(a) From the Execution Date of this Agreement until three (3) business days thereafter (the
“Inspection Period”), Purchaser and its representatives may inspect, at Purchaser’s sole
expense, at reasonable hours, the Documents, the Property, and reasonable accounting records,
contracts, and other documents or data pertaining to the ownership,
operation, or maintenance of the Property; however, in conducting its inspection Purchaser
shall not unreasonably interfere with the business and operations of Seller. Purchaser shall not
conduct any invasive inspections (as, for example, a “Phase II” environmental inspection) without
Seller’s prior written consent. If this Agreement is terminated, Purchaser shall deliver to Seller,
upon receipt of Seller’s written request therefore, copies of all reports, studies, data, and
other information acquired by Purchaser or its representatives in connection with inspections of
the Property. If Purchaser does not purchase the Property for any reason whatsoever, then
Purchaser shall deliver to Seller, upon receipt of Seller’s written request therefore, all such
reports, studies, data, information and copies thereof in Purchaser’s or its agent’s possession or
control. Purchaser’s obligations under this Section 5 shall survive the termination and
closing of this Agreement. Purchaser shall provide upon Seller’s request a certificate of
insurance prior to any on-site inspections.
(b) Purchaser shall indemnify, defend and hold Seller harmless from all costs, damages, and
liabilities arising out of Purchaser’s inspection of the Property and the foregoing information.
In the event that Purchaser conducts any on-site testing at the Property, Purchaser shall maintain,
and shall require its subcontractors and agents to maintain, insurance as follows: Commercial
General Liability Insurance, with limits of not less than One Million Dollars ($1,000,000) combined
single limit per occurrence and general aggregate basis, for bodily injury, death and property
damage. A certificate, evidencing same, shall be delivered to Seller prior to entry on the
Property for testing. Any policies required by the provisions of this Section may be made a part
of a blanket policy of insurance with a “per project, per location endorsement”. The provisions of
this subsection (b) shall survive Closing or termination.
(c) Purchaser agrees that the person(s) performing the inspection of the Property on behalf of
Purchaser shall maintain the confidentiality of any information ascertained from the Seller
regarding the Property. Purchaser shall not disseminate Documents or Information furnished to it
by Seller to the general public, nor use such Documents or Information for any purpose other than
in connection with the purchase contemplated by this Agreement. The provisions of this
subsection (c) shall survive Closing or termination.
(d) For any reason Purchaser, in its sole discretion, may terminate this Agreement in its
entirety and the provisions of Section 12(b) shall apply, by delivering to Seller a written notice
of termination at any time on or before 5:30 p.m. Houston, Texas time on or before the last day of
the Inspection Period, at the address for notice specified in this Agreement.
Section 6. Title. The Inspection Period expires on the third business day after the
Execution Date for all purposes except review of title. Purchaser shall have until the close of
business on the 10th day following the Execution Date (the “Title Review
Period”) within which to object in writing to any liens, encumbrances, and other matters
reflected by the Title Commitment or Existing Survey. All such matters to which Purchaser so
objects shall be “Non-Permitted Encumbrances”; if no such objection notice is given during
the Title Review Period, all matters reflected by the Existing Survey and Title Commitment shall be
“Permitted Encumbrances”. Seller may, but shall not be obligated to, at its cost, cure,
remove or insure
around all Non-Permitted Encumbrances, and Seller shall give Purchaser written notice of its
intent thereof within three (3) days after the Title Review Period expires (the “Seller
Response Period”); however, Seller at its cost shall be obligated to cure, remove or insure
around by Closing all judgment liens, mechanic’s and
materialmen’s liens, and other monetary liens
against the Property (other than the liens for taxes and assessments which are not delinquent)
(“Required Cure Items”), whether or not Purchaser objects thereto during the Title Review
Period (but not to exceed an aggregate cost to cure, remove or insure around of $50,000.00), and in
connection therewith Seller shall have fifteen (15) days within which to cure, remove or insure
around such Required Cure Items (and the Title Review Period shall be extended for such period, but
only with respect to the Required Cure Items. If Seller does not respond, Seller shall be deemed
to have elected not to cure. If Seller does not elect to cause all of the Non-Permitted
Encumbrances to be removed, cured or insured around, and timely written notice thereof is given to
Purchaser, or Seller is deemed to have elected not to cure same (excluding those items Seller is
obligated to cure), then Purchaser may either (a) terminate this Agreement in accordance with
Section 12(b) by delivering notice to Seller within two (2) days after the end of the
Seller Response Period (in which case the ▇▇▇▇▇▇▇ Money shall be fully refunded to Purchaser), or
(b) purchase the Property subject to the Non-Permitted Encumbrances, and the Non-Permitted
Encumbrances subject to which Purchaser elects to purchase the Property shall thereafter be
Permitted Encumbrances.
Section 7. Representations, Warranties, Covenants and Conditions.
(a) Seller hereby represents and warrants to Purchaser 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; (ii) to the best of Seller’s
knowledge without independent inquiry and except as disclosed in any environmental site assessment
delivered to Purchaser or commissioned by Purchaser, Seller has received no written notice alleging
that the Land and/or Improvements and the use and operation thereof is not in compliance with all
applicable laws, ordinances, rules and regulations relating to public health and safety and
protection of the environment; (iii) Seller has not received any written notice of any claim of any
governmental authority to the effect that the Improvements or the operation or use of the Land and
Improvements fails to comply with any governmental requirements or that any investigation has been
commenced or is contemplated respecting any such possible failure or compliance; (iv) there are no
actions, suits, claims, assessments, or proceedings pending or, to the knowledge of Seller, without
independent inquiry, threatened that could adversely affect the ownership, development,
maintenance, or operation of the Property or Seller’s ability to perform hereunder; (v) Seller has
not received any notice of, and has no other direct knowledge of, any pending or contemplated
condemnation action with respect to the Property, or any part thereof; (vi) there are no leases,
licenses, occupancy agreements, or other agreements demising space in or providing for the use or
occupancy of the Improvements or Land, and (vii) the Documents and Information delivered to
Purchaser and listed in Section 4 (a) (6) are the Documents and Information used by Seller
in connection with the Property in the ordinary course of Seller’s business.
(b) Seller hereby covenants with Purchaser that (i) Seller will maintain the Improvements and
equipment (including but not limited to all HVAC systems and elevators) forming a part of the
Property in the manner which Seller currently maintains them; (ii) Seller will not, without the
prior written consent of Purchaser, remove any equipment forming a material part of the Property
except such as is replaced by Seller by an article of equal suitability and value, free and clear
of any lien or security interest, and (iii) Seller will promptly notify Purchaser of any written
notices received by Seller with respect to the matters listed in 7(a) or (b) above.
If Purchaser has knowledge before Closing that any of such representations and warranties are
untrue as of the Closing and nevertheless elects to close, Purchaser waives its right to ▇▇▇ for
damages as a result of such breach of the representation or warranty. If Purchaser gains knowledge
only after Closing that any of such representations and warranties are untrue in any material
respect, Purchaser shall have the right to ▇▇▇ to recover any direct, actual damages (expressly
waiving any right to indirect, consequential or punitive damages) incurred by Seller’s breach of
any of the foregoing representations and warranties, up to a maximum amount of One Hundred Six
Thousand and 00/100 Dollars ($106,000.00).
The terms “to the best of Seller’s knowledge” and “to the best knowledge of Seller” as used in
this Agreement mean to the actual, personal, present knowledge of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without duty of
inquiry. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is the senior vice president, asset management and is knowledgeable
regarding the matters set forth in this Section 7(a) and (b) and the ownership and
operation of the Property and possesses experience and familiarity with the Property. Purchaser
shall be deemed to have knowledge of any matter (i) regarding which any employee or agent of
Purchaser has actual knowledge, (ii) which is disclosed in the Information or the Documents or this
Agreement, and/or (iii) regarding which Purchaser has received written notice, including, without
limitation any matters disclosed in any reports or analyses commissioned by Purchaser.
(c) This Agreement, when executed and delivered by Seller and Purchaser, will constitute the
valid and binding agreement of Seller and Purchaser, enforceable against Seller and Purchaser in
accordance with its terms.
(d) Purchaser acknowledges that Purchaser will have independently and personally inspected the
Property and that Purchaser has entered into this Agreement based upon its ability to make such
examination and inspection, and Purchaser assumes the risk that adverse matters and conditions may
not have been revealed by Purchaser’s inspections and examinations. The Property is to be sold to
and accepted by Purchaser at Closing in its then present condition, “AS IS, WITH ALL FAULTS, AND
WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,” (other than the representations and
warranties expressly set forth in this Agreement); specifically (without limiting the generality of
the foregoing), without any warranty of (i) the nature or quality of the construction, structural
design or engineering of the Improvements, (ii) the quality of the labor and materials included in
the Improvements, (iii) the soil conditions existing at the Property for any particular purpose or
developmental potential, (iv) the presence or absence of any hazardous substances or matter in or
on the Property, (v) compliance of the Property with any applicable laws, regulations or other
governmental requirements, or (vi) the accuracy of any information provided by Seller to Purchaser,
except as expressly provided in subsection 7(a) above. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND TO PURCHASER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL
CONDITION OF THE PROPERTY AND ANY IMPROVEMENTS LOCATED THEREON, OR THEIR SUITABILITY FOR ANY
PARTICULAR PURPOSE OR OF MERCHANTABILITY, OR RELATING TO SOLID, HAZARDOUS OR TOXIC WASTES OR OTHER
ENVIRONMENTAL MATTERS. The terms and conditions of this subsection 7 (d) shall survive
Closing and not merge with the provisions of any closing documents.
(e) Except as expressly provided in this Agreement, the representations, warranties and
covenants of this Section 7 shall survive the Closing for a period of six (6) months from
the Closing Date. If Purchaser has not provided Seller written notice of its intent to assert a
cause of action against Seller arising out of any alleged breach of representations, warranties and
covenants within such six (6) month period, or, having given such notice Purchase fails to commence
litigation asserting such cause of action within two (2) years and one (1) day following the
Closing Date, any such claim shall be deemed waived. Except as expressly provided herein, all of
the obligations of the parties hereunder and all other provisions of this Agreement shall be deemed
to have merged into the Deed and shall be extinguished at Closing or the earlier termination of
this Agreement.
(f) Except as expressly provided in this Agreement to the contrary, and except for any claims
arising out of the express representations, warranties or covenants of Seller under this Agreement,
Purchaser for itself and its agents, affiliates, successors and assigns, hereby releases and
discharges Seller and any party related to or affiliated with Seller, and their respective
successors and assigns (the “Seller Related Parties”) from and against any claims at law or
equity with respect to (i) matters of which Purchaser had actual knowledge at the time of Closing,
or (ii) the matters were included in the Documents or Information delivered to Purchaser hereunder
and reasonably should have been discovered by Purchaser prior to the Execution Date if Purchaser
had conducted its due diligence investigation and review of such Documents and Information in a
manner at least equal to that which a reasonably prudent purchaser would have conducted in
purchasing a property similar to the Property, including, without limitation, all claims with
respect to the economic, structural, physical, operating, or environmental condition of the
Property.
Section 8. Closing. The closing (the “Closing”) of the sale of the Property
by Seller to Purchaser shall occur through escrow on or before the thirtieth (30th) day following
the end of the Inspection Period (the “Closing Date”). At the Closing the following, which
are mutually concurrent conditions, shall occur:
(a) Purchaser, at its expense, shall deliver or cause to be delivered to the Title Company the
following:
(1) Funds available for immediate value to Seller’s account, in the amount of the
Purchase Price as specified in Section 2.1, adjusted in accordance with Section
8;
(2) A counterpart of the ▇▇▇▇ of Sale and Assignment referenced in Section
8(b)(2);
(3) Evidence reasonably satisfactory to the Title Company that the person executing the
Closing documents on behalf of Purchaser has full right, power, and authority to do so.
(4) A Closing settlement statement for Purchaser which shall set forth the costs
payable and the prorations and credits provided for.
(b) Except as otherwise provided herein, Seller, at Seller’s expense, shall deliver or cause
to be delivered to Purchaser the following:
(1) Special Warranty Deed in the form of Exhibit B, fully executed and
acknowledged by Seller, conveying to Purchaser the Land and Improvements, subject only to
the Permitted Encumbrances;
(2) ▇▇▇▇ of Sale and Assignment in the form of Exhibit C, fully executed and
acknowledged by Seller, assigning, conveying, and transferring all of the Property other
than the Land and Improvements, to Purchaser, subject only to the Permitted Encumbrances;
(3) The agreement of Title Company to deliver a Texas form of Owner’s Policy of title
insurance, at Seller’s expense, in the amount of the Purchase Price, issued by Title
Company, insuring that Purchaser is the owner of the Land and Improvements subject only to
the Permitted Encumbrances and the standard printed exceptions included in a Texas standard
form owner policy of title insurance; however, (A) the rights of parties in possession shall
be limited only to those holding under the Leases, (B) the standard exception for taxes
shall be limited to the year in which the Closing occurs, and subsequent years and
subsequent assessments for prior years due to change in land usage or ownership and (C) the
“survey deletion” and any endorsements desired by Purchaser will be made in such policy at
Purchaser’s expense;
(5) Evidence reasonably satisfactory to the Title Company that the persons executing
and delivering the Closing documents on behalf of Seller have full right, power and
authority to do so;
(6) Certificate in the form of Exhibit D meeting the requirements of Section
1445 of the Internal Revenue Code of 1986, executed and sworn to by Seller.
(5) A Closing settlement statement for Seller which shall set forth the costs payable
and the prorations and credits provided for.
(6) An assignment of the Parking Lease executed by the Lessor, for the Parking Garage
premises, in favor of Purchaser, as Lessee.
(c) Title Company shall cause the recordable documents to be recorded, and shall disburse
funds in accordance with the Purchaser’s Closing settlement statement and the Seller’s Closing
settlement statement.
(d) All normal and customarily proratable items, including without limitation personal
property taxes 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. 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, within thirty (30) days after actual figures are received, a cash settlement will
be made between Seller and Purchaser. All Deposits shall be credited against the cash portion of
the Purchase Price in lieu of assigning such Deposits to Purchaser. The provisions of this
Section 8(d) shall survive
the Closing. Insurance policies will not be assigned to
Purchaser, and Purchaser shall be responsible for arranging for its own insurance effective
immediately after the Closing Date. Utility meters shall be read on the Closing Date, and
Purchaser shall be responsible for all the necessary actions needed to arrange for utilities to be
transferred to the name of Purchaser immediately after the Closing Date, including the posting of
any required deposits. Accordingly, there will be no prorations for insurance or utilities. In
the event a meter reading is unavailable for any particular utility, such utility shall be prorated
in the manner provided in this subsection (d). The parties shall each pay one half of
Title Company’s escrow fees, costs and expenses. Purchaser shall pay the costs of recording the
Special Warranty Deed, and all other costs customarily borne by buyers of real property in Dallas
County, Texas.
(e) Except as provided below, 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
receive all proceeds relating to the Property that are properly allocable to the period before 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, and shall receive all
proceeds relating to the Property that are properly allocable to the period from and after the
Closing Date. The provisions of this Section 8(e) shall survive the Closing.
(f) During the period between the date of execution of this Agreement and the Closing Date (or
any earlier termination of this Agreement), Seller shall continue to operate the Property in a
manner consistent with Seller’s operation of the Property prior to such period, provided, however,
that Seller shall have no obligation to make any capital improvements or capital repairs or
replacements, and Seller shall not enter into any lease agreements with respect to the Property.
(g) The ▇▇▇▇▇▇▇ Money shall be credited to the Purchase Price.
(h) 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 any
Permitted Encumbrances.
Section 9. Commissions. Seller shall pay a commission to ▇▇▇▇▇ & ▇▇▇▇▇ Company
(“Broker”), pursuant to a separate agreement between Seller and Broker, as and when, and
only if, as and when, the Closing occurs. Except as set forth in the preceding sentence, Seller
shall defend, indemnify, and hold harmless Purchaser, and Purchaser shall defend, indemnify, and
hold harmless Seller, 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 expenses arising therefrom, and alleged to be due by authorization of
the indemnifying party. As provided for in the Texas Real Estate License Act, Purchaser is advised
to have an abstract of title with regard to the Property examined by an attorney of its choice, or
to obtain a policy of title insurance. The provisions of this Section 9 shall survive
Closing or the termination of this Agreement.
Section 10. Intentionally Omitted.
Section 11. Destruction, Damage, or Taking Before Closing. If, before Closing, all or
any material part of the Land, Improvements or Personalty are destroyed or damaged, or become
subject to condemnation or eminent domain proceedings, then Seller shall promptly notify Purchaser
thereof in writing. Purchaser may elect to proceed with the Closing (subject to the other
provisions of this Agreement) by delivering written notice thereof to Seller within five business
days of receipt of Seller’s written 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 business
days of receipt of Seller’s written notice respecting the material damage, destruction, or taking,
Purchaser notifies Seller of its intent to terminate this Agreement, then Purchaser shall be deemed
to have terminated this Agreement pursuant to Section 12(b). For the purposes of this
Section 11, damage or a taking shall be considered to be “material” if the value of the
portion of the Land, Improvements, or Personalty damaged or taken exceed $250,000 in value, or, in
the case of a taking, if the portion of the Land, Improvements, or Personalty taken are such that
they materially adversely affect the ability to use the remainder for the purposes for which they
are presently used.
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 or 11, then Seller, as its sole remedy, may terminate this
Agreement by notifying Purchaser thereof, in which event Title Company shall deliver the ▇▇▇▇▇▇▇
Money to Seller as liquidated damages (or Seller shall retain the same if theretofore delivered to
it), whereupon neither Purchaser nor Seller shall have any further rights or obligations hereunder,
except for those which survive the termination of this Agreement. In addition to the foregoing,
Seller shall also be entitled to recover all expenses, including reasonable attorney’s fees and
litigation costs, incurred in connection with recovering the ▇▇▇▇▇▇▇ Money following a breach
hereof by Purchaser.
(b) If Purchaser terminates this Agreement pursuant to Sections 5, 6 or
11, then Title Company shall return the ▇▇▇▇▇▇▇ Money, if any, to Purchaser, whereupon
neither party hereto shall have any further rights or obligations hereunder, except for those which
survive the termination of this Agreement.
(c) If Seller fails to consummate the sale of the Property under 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), the failure of a condition hereunder, or a
right expressly granted Seller hereunder, Purchaser shall first give Seller written notice and
seven (7) days’ time to cure such failure, and thereafter, Purchaser’s sole remedies shall be
either to (1) seek to enforce specific performance or (2) terminate this Agreement by notifying
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 for those which survive
the termination of this Agreement.
(d) The provision for payment of liquidated damages in Section 12(a) has been included
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 to measure
accurately.
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,
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; or by facsimile copy
transmission, or by electronic transmission of a PDF scan. Notice given in accordance herewith
shall be effective upon delivery to the address of the addressee. For purposes of notice, the
addresses of the parties shall be as follows:
If to Seller, to:
|
GREIT — Pacific Place, LP | |
| c/o Grubb & ▇▇▇▇▇ Realty Investors, LLC | ||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Phone 714/▇▇▇-▇▇▇▇ | ||
| Fax 714/▇▇▇-▇▇▇▇ | ||
| Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇-▇▇▇▇▇.▇▇▇ | ||
With Required Copy to:
|
▇▇▇▇▇▇▇ ▇▇▇ | |
| ▇▇▇▇▇ & ▇▇▇▇▇ Realty Investors, LLC | ||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Phone 714/▇▇▇-▇▇▇▇ | ||
| Fax 714/▇▇▇-▇▇▇▇ | ||
| Email: ▇▇▇▇▇▇▇.▇▇▇@▇▇▇▇▇-▇▇▇▇▇.▇▇▇ | ||
With Required Copy to:
|
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇▇ & ▇▇▇▇▇ Realty Investors, LLC | ||
| ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Phone: 972/850-0601 ext. 2 | ||
| Fax 972/▇▇▇-▇▇▇▇ | ||
| Email: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇-▇▇▇▇▇.▇▇▇ | ||
If to Purchaser, to:
|
Boxer F2, L.P. | |
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Phone (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| Fax (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
Either party hereto may change its address for notice by giving one (1) day prior written notice
thereof to the other party.
Section 14. Like Kind Exchange. Either Seller or Purchaser may consummate the sale of the
Property as part of a so-called like kind exchange (the “Exchange”) pursuant to §1031 of
the Internal Revenue Code of 1986, as amended, provided that (i) all costs, fees, and expenses
attendant to the Exchange shall be the sole responsibility of the party consummating the Exchange;
(ii) the Closing shall not be delayed or affected by reason for the Exchange nor shall the
consummation or accomplishment of the Exchange be a condition precedent or condition subsequent to
Seller’s obligations and covenants under this Agreement; (iii) neither Purchaser nor Seller shall
be required to acquire or hold title to any real property other than the Property for purposes of
consummating the Exchange. Neither Purchaser nor Seller shall, by this Agreement or acquiescence
to an Exchange, (1) have its rights under this Agreement, including (without limitation) those that
survive Closing, affected or diminished in any manner or (2) be responsible for compliance with or
be deemed to have warranted to the other party that the Exchange in fact complies with §1031 of the
Internal Revenue Code of 1986, as amended.
Section 15. Assignment. Purchaser may assign Purchaser’s rights under this Agreement
to an affiliated entity, which is a corporation, limited partnership, general partnership, or
limited liability company owned or controlled by Purchaser or owners of Purchaser, but not
otherwise without the prior written consent of Seller.
Section 16. Governing Law; Attorney’s Fees. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas. If it becomes necessary for either
party to file suit to enforce this Agreement or any provisions contained herein, the prevailing
party shall be entitled to recover, in addition to all other remedies or damages, reasonable
attorneys’ fees and costs of court incurred in such suit, including those related to any appeal or
review.
Section 17. 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. All Exhibits attached hereto are incorporated herein
by this reference for all purposes.
Section 18. Rule of Construction; No Waiver. Purchaser and Seller acknowledge that
each party has reviewed this Agreement and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments hereto. No provision of this Agreement shall be
deemed to have been waived by either party unless the waiver is in writing and signed by that
party. No custom or practice which may evolve between the Purchaser and Seller during the term of
this Agreement shall be deemed or construed to waive or lessen the right of either of the parties
hereto to insist upon strict compliance of the terms of this Agreement.
Section 19. No Recording. Neither this Agreement nor any memorandum hereof shall be
recorded in any public records.
Section 20. Termination of Offer. In the event that a copy of this Agreement duly
executed by Seller and Purchaser, has not been actually delivered by 5:00 p.m. on March
_____, 2010 then the offer by Purchaser to purchase the Property shall be deemed automatically terminated and
revoked without further notice and shall thereafter be of no further force or effect.
Section 21. Non-Solicitation of Employees. Purchaser agrees that neither it, nor any
of its agents or representatives, will contact or approach employees of Seller or Seller’s
management company to solicit their employment with Purchaser or its agents, affiliates or
representatives, unless the prior approval of Seller has been obtained.
Section 22. Non-Disclosure Agreement. Purchaser and Seller agree that the terms of
the Agreement (including the Purchase Price) shall remain confidential and private in all respects,
and that said terms shall not be disclosed directly to anyone, except their attorneys, financial
advisors, agents, lenders, bankers, tax preparers, as required by law or court order or to other
entities who may have a bona fide need to know the terms for tax, underwriting, investing or legal
reasons. Despite the foregoing, Purchaser acknowledges and agrees that Seller (and the holders of
Seller’s ownership interests) may disclose this Agreement itself and the terms hereof in connection
with any filings made to the Securities and Exchange Commission. Purchaser and Seller agree not to
contact, or respond to requests from, any media outlet regarding the terms of the Agreement.
Purchaser’s obligations under this Section 22 shall survive the termination of this
Agreement.
Section 23. Time of Essence. The parties agree that time is strictly of the essence
with respect to each term, condition, obligation and provision in this Agreement.
[Signatures follow]
Executed as of the date first set forth above.
SELLER:
GREIT-PACIFIC PLACE, LP,
a Delaware limited partnership
a Delaware limited partnership
By:
|
G REIT Liquidating Trust, | |||
| a Maryland trust, | ||||
| Its Sole Member | ||||
By:
|
▇▇▇▇▇ & ▇▇▇▇▇ Realty Investors, LLC, | |||
| a Virginia limited liability company, f/k/a | ||||
| Triple Net Properties, LLC, | ||||
| Its Vice President, |
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
| Title: Authorized Representative |
Date: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇:
BOXER F2, L.P.,
a Texas limited partnership
a Texas limited partnership
By:
|
Boxer M2, L.L.C., a Texas limited liability company, | |||
| its general partner | ||||
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
|
Date: March 25, 2010