EXHIBIT 99.2
Discount Tire Building
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona limited liability company,
and
HOLUALOA ARIZONA, INC.,
an Arizona corporation
August 30, 2004
TABLE OF CONTENTS
PAGE
1. Sale of Property....................................................... 1
1.1 Office Project.................................................. 1
1.2 Real Property................................................... 1
1.3 Tenant Lease.................................................... 1
1.4 Contracts....................................................... 1
1.5 Permits......................................................... 1
1.6 Warranties...................................................... 1
2. Purchase Price......................................................... 2
2.1 Deposit......................................................... 2
2.2 Loan Assumption................................................. 2
2.3 Balance......................................................... 2
3. Investigation.......................................................... 2
3.1 Investigation Period............................................ 2
3.2 Purchaser's Investigative Rights................................ 3
3.3 Investigation Materials......................................... 3
4. Title Requirements, Survey and Permitted Exceptions.................... 4
4.1 Title Evidence.................................................. 4
4.2 Survey.......................................................... 4
4.3 Title and Survey Objections..................................... 5
5. Conditions Precedent to Closing........................................ 5
5.1 Allianz Loan.................................................... 5
5.2 Tenant Estoppel Certificate..................................... 6
5.3 Due Performance by Seller....................................... 6
5.4 Due Performance by Purchaser.................................... 6
5.5 Continued Accuracy of Seller's Representations and Warranties... 6
5.6 Title Policy.................................................... 6
6. Closing; Covenants..................................................... 7
6.1 Closing Date.................................................... 7
6.2 Seller's Obligations at Closing................................. 7
6.3 Purchaser's Obligations at Closing.............................. 8
6.4 Closing Costs................................................... 8
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
6.5 Prorations...................................................... 9
6.6 Tenant Reimbursements........................................... 10
6.7 Work Letter Obligations......................................... 10
6.8 License......................................................... 10
7. Damage................................................................. 11
8. Condemnation........................................................... 11
9. Representations and Warranties; "As-Is" Sale........................... 11
9.1 Representations and Warranties of Seller........................ 11
9.2 "As Is" Sale.................................................... 14
9.3 Representations and Warranties of Purchaser..................... 15
10. Default................................................................ 15
10.1 Default by Seller............................................... 15
10.2 Default by Purchaser............................................ 16
10.3 Attorneys' Fees and Costs....................................... 16
11. Broker................................................................. 16
12. Escrow................................................................. 17
12.1 Escrow Agent and Escrow Procedure............................... 17
12.2 Closing Protection Letter....................................... 17
13. Other Contractual Provisions........................................... 17
13.1 Assignment...................................................... 17
13.2 Notices......................................................... 17
13.3 Entire Agreement................................................ 18
13.4 Applicable Law; Jurisdiction; Venue; Damage..................... 19
13.5 Headings........................................................ 19
13.6 Binding Effect.................................................. 19
13.7 Counterparts.................................................... 19
13.8 Interpretation.................................................. 19
13.9 Severability.................................................... 19
13.10 Time of Essence................................................. 19
13.11 Authority of Parties............................................ 19
13.12 No Waiver....................................................... 20
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
13.13 IRS Reporting Requirements...................................... 20
13.14 Agreement Not Recordable........................................ 20
13.15 Return of Documents; Confidentiality............................ 20
13.16 Survival........................................................ 20
13.17 Like-Kind Exchange.............................................. 20
-iii-
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is made as of the 30th
day of August, 2004 (the "EXECUTION DATE"), by and between SCOTTSDALE XXXXXXXX
PEAK, LLC, an Arizona limited liability company ("SELLER"), and HOLUALOA
ARIZONA, INC., an Arizona corporation ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller is the owner of that certain Property (as hereinafter
defined) located at 20225 North Scottsdale Road, Scottsdale, Maricopa County,
Arizona; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, Seller and Purchaser agree as follows:
1. SALE OF PROPERTY. Seller agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller the following (collectively, the "PROPERTY"):
1.1 OFFICE PROJECT. The office project (the "PROJECT") as more
particularly described on EXHIBIT A attached hereto, which shall
include the Real Property, Tenant Lease, Contracts, Permits and
Warranties (as each such term is defined herein) with respect to the
Project.
1.2 REAL PROPERTY. That parcel of land more particularly
described on EXHIBIT B attached hereto (the "Land"), together with (i)
all building structures located on the Land and all improvements and
fixtures owned by Seller located on the Land (collectively, the
"IMPROVEMENTS"), and (ii) all rights, privileges, servitudes and
appurtenances thereunto belonging or appertaining (collectively, the
"REAL PROPERTY").
1.3 TENANT LEASE. All right, title and interest of the landlord
under the Bondable Net Lease Agreement for the Project, together with
all amendments or modifications thereto and guaranties thereof listed
on EXHIBIT C attached hereto, subject to SECTIONS 6.6 AND 6.7 hereof
(the "TENANT LEASE").
1.4 CONTRACTS. All right, title and interest of Seller in and to
all service and maintenance contracts, equipment leases and other
contracts, if any, related to the Project (the "CONTRACTS").
1.5 PERMITS. Seller's interests in the licenses, permits,
certificates of occupancy and franchises for the Project (the
"PERMITS"), to the extent such Permits are assignable.
1.6 WARRANTIES. A nonexclusive assignment of Seller's interests
in all unexpired warranties and guaranties given by third parties
unaffiliated with Seller to, assigned to or benefiting Seller and
relating to the Real Property regarding the acquisition, construction,
design, use, operation, management or maintenance of the Real Property
or Personal Property (the "WARRANTIES"), to the extent such Warranties
are assignable.
2. PURCHASE PRICE. Purchaser shall pay to Seller, as consideration for
the purchase of the Property, the sum of Thirty-One Million Four Hundred
Thousand Dollars ($31,400,000.00) (the "PURCHASE PRICE"), payable as follows:
2.1 DEPOSIT. Within two (2) business days after full execution of
this Agreement, Purchaser shall deliver by cashier's check or wire transfer
to Xxxxxxx Title & Trust of Phoenix, Inc., 0000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxx Xxxxxxx ("ESCROW AGENT"),
the sum of Five Hundred Thousand Dollars ($500,000.00), of which the amount
of One Hundred Thousand Dollars ($100,000.00) (the "HARD DEPOSIT") shall be
absolutely nonrefundable for any reason, except in the event of Seller's
default under this Agreement, and immediately released to Seller (with the
remaining balance of $400,000.00, together with and including all accrued
interest thereon, being hereinafter referred to as the "DEPOSIT"). The
Escrow Agent is directed to hold the Deposit in an interest-bearing account
with a commercial bank located in Phoenix, Arizona. The Deposit and Hard
Deposit shall be applied against the Purchase Price at the Closing.
2.2 LOAN ASSUMPTION. Concurrently with the Closing, Purchaser shall
assume and agree to pay the unpaid principal balance of approximately
Nineteen Million Two Hundred Sixteen Thousand Nine Hundred Fifty-Nine and
93/100 Dollars ($19,216,959.93) of the Allianz Loan (as hereinafter defined
in SECTION 5.1). Any difference between such approximate unpaid principal
balance and the actual unpaid principal balance of the Allianz Loan due as
of the Closing shall be reflected in the balance of the Purchase Price
payable pursuant to SECTION 2.3 below.
2.3 BALANCE. The balance of the Purchase Price, plus or minus
prorations and other adjustments as provided in this Agreement, if any,
shall be due at Closing and shall be paid by wire transfer of immediately
available funds paid to Escrow Agent by 11:00 a.m. on the Closing Date (as
hereinafter defined).
3. INVESTIGATION.
3.1 INVESTIGATION PERIOD. Seller acknowledges that, to enable
Purchaser to proceed with this transaction, Purchaser will undertake or
cause to have undertaken certain tests and studies, including but not
limited to engineering and environmental studies and such other tests and
studies that Purchaser, in its sole discretion, deems necessary
(hereinafter collectively referred to as "TESTS AND STUDIES"), so as to
determine whether, in Purchaser's sole discretion, it would be feasible,
economically or otherwise, to go forward with Purchaser's acquisition of
the Property. Purchaser shall have from the Execution Date of this
Agreement until 5:00 p.m., M.S.T., on September 10, 2004 (herein, the
"INVESTIGATION PERIOD") in which to determine the feasibility of its
acquisition of the Property. If for any reason whatsoever during the
Investigation Period Purchaser determines, in Purchaser's sole discretion,
that the Property is not feasible for Purchaser's purposes, then Purchaser
shall have the right to terminate this Agreement on or before the
expiration of the Investigation Period, whereupon Escrow Agent shall return
2
the Deposit to Purchaser immediately thereafter, and neither party shall
thereafter have any further obligations or liabilities to the other
hereunder, except for those matters which specifically survive the
expiration or termination of this Agreement. A failure to notify Seller and
Escrow Agent in writing on or before the expiration of the Investigation
Period that Purchaser has waived its right to terminate this Agreement
pursuant to this SECTION 3.1 shall be deemed as notice to Seller that
Purchaser has determined that the Property is not feasible for Purchaser's
purposes and the contingency contained in this SECTION 3.1 shall be deemed
not satisfied as of such date.
3.2 PURCHASER'S INVESTIGATIVE RIGHTS. Purchaser and its agents,
contractors or employees shall have the right to enter upon the Property at
all reasonable times for the purpose of performing its Tests and Studies,
provided such activities shall not damage the Property or interfere with
the rights of the tenant ("TENANT") under the Tenant Lease. Purchaser shall
give Seller and the Tenant reasonable prior written notice before Purchaser
enters upon the Property and, with respect to any invasive Tests and
Studies at the Property, Purchaser shall obtain the prior written approval
of Seller thereto prior to conducting any invasive Tests and Studies, which
approval shall not be unreasonably withheld, conditioned or delayed.
Purchaser shall restore the Property to its condition prior to such Tests
and Studies; provided, however, that Purchaser's restoration shall be
limited to the damage or other change to the condition of the Property
caused by Purchaser or its agents, contractors, employees or other
representatives in connection with such Tests and Studies. Purchaser in
conducting such Tests and Studies shall not disrupt the ordinary course of
business of the Tenant at the Property. Purchaser shall keep the Property
free of all liens in connection with its Tests and Studies of the Property
and shall cause all such liens to be removed immediately upon its being
notified of same. Purchaser shall indemnify, defend, protect and hold
harmless Seller against any liabilities, claims and damages, including
without limitation any Tenant claims and any property damage or personal
injury or claim of lien against the Property, resulting from Purchaser's
Tests and Studies (including, without limitation, reasonable attorneys'
fees and expenses paid or incurred by Seller during litigation, if any, and
the costs of enforcing this indemnity), which indemnity shall survive the
Closing or the expiration, cancellation or termination of this Agreement.
Purchaser shall cause any consultants retained by Purchaser that will be
conducting invasive Test and Studies to name Seller as an additional
insured on their policies of liability insurance with minimum limits and
coverages as may be reasonably approved by Seller. Purchaser shall promptly
deliver to Seller copies of any Tests and Studies undertaken by Purchaser
(excluding Purchaser's internal analyses, reports and communications
concerning such Tests and Studies conducted by Purchaser or its
affiliates), including, without limitation, any environmental assessment
prepared with respect to the Property, in the event the Closing does not
occur and such failure to close is not by reason of Seller's default under
this Agreement. In addition to the rights granted to Purchaser under this
SECTION 3.2, Purchaser may, at Purchaser's option, undertake to interview
the Tenant during the Investigation Period; provided, that such interview
shall be upon reasonable prior written notice to Seller, and a
representative of Seller may be present during such interview.
3.3 INVESTIGATION MATERIALS. Seller has furnished to Purchaser, to
the extent applicable to the Property and in the possession of Seller of
Seller's Affiliates (as defined in SECTION 9.2 below), copies of the
Contracts, the Tenant Lease and all written correspondence with the Tenant,
3
the Permits, the Warranties, a list of the Personal Property, the Allianz
Loan documents, as-built plans and specifications, the design documents,
reference documents and final plans and specifications referenced in
Exhibits "B-2", "B-3" and "B-4" to the Tenant Lease, environmental studies,
engineering reports, topographic maps, copies of real estate and personal
property statements and statements of special assessments during the period
of Seller's ownership, copies of all written notices of violations, if any,
of any applicable laws, including, without limitation, the Americans With
Disabilities Act and zoning and environmental laws, the occupancy permit,
Seller's financial cash statements for the Property during the entire
period of Seller's ownership of the Property, insurance policies and
claims, contractor bids for any proposed capital expenditures, roof and
mechanical inspections, and other relevant documents relating to the
Property (the "INVESTIGATION MATERIALS"). Purchaser shall use all such
Investigation Materials solely for Purchaser's evaluation and investigation
of the Property. Purchaser acknowledges that any financial statements of
the Tenant in Seller's possession will be made available for review by
Purchaser only at Seller's office; however, copies of such financial
statements will be provided to Purchaser after the expiration of the
Investigation Period if Purchaser has not then terminated this Agreement.
If Purchaser should terminate this Agreement or otherwise not close on the
purchase of the Property hereunder for any reason, Purchaser shall
immediately return all such Investigation Materials, together with all
copies hereof, to Seller, and shall otherwise discontinue any use of such
Investigation Materials.
4. TITLE REQUIREMENTS, SURVEY AND PERMITTED EXCEPTIONS.
4.1 TITLE EVIDENCE. Seller has furnished to Purchaser an extended
coverage owner's Commitment for Title Insurance, No. 04100124, dated July
29, 2004 (the "TITLE COMMITMENT") covering the Real Property (together with
legible copies of the exception documents referenced therein) issued by
Xxxxxxx Title Guaranty Company (the "TITLE INSURER"), pursuant to which the
Title Insurer will issue to Purchaser, upon the Closing of the purchase of
the Property, an extended coverage owner's title insurance policy for the
Property in the amount of the Purchase Price, which policy shall include at
Purchaser's expense an owner's comprehensive endorsement and a survey
endorsement with respect to the Survey (the "TITLE POLICY"). Excluding the
Allianz Loan, Seller shall caused to be released in full, on or before the
Closing, any monetary liens created by Seller against the Property;
provided, however, that Seller at its cost may obtain an endorsement to the
Title Policy to provide coverage to be issued to Purchaser for any
mechanic's or materialmen's liens caused by Seller against the Property,
but only if the existence of such mechanic's or materialmen's liens are
acceptable to the Lender, do not violate the terms of the Tenant Lease, and
such endorsement covers costs of defense and is otherwise in form and
substance reasonably acceptable to Purchaser.
4.2 SURVEY. Seller and Purchaser each has received an updated
ALTA/ACSM land title survey of the Property certified by Xxxxxxxxxx
Associates, Inc., dated August 17, 2004, Job No. 1026001 (the "SURVEY").
The Survey names or shall be revised to name Seller, Purchaser, its
permitted assigns hereunder, the Title Insurer and the holder of the
Allianz Loan ("LENDER") as certified parties, and shall otherwise be
sufficient to meet the Title Insurer's requirements for issuance of the
Title Policy and any requirements that Lender may have in connection with
4
its approval of the Loan assumption. Seller solely shall be obligated for
the cost of the updated Survey.
4.3 TITLE AND SURVEY OBJECTIONS. On or before the expiration of the
Investigation Period, Purchaser may give Seller and Escrow Agent written
objections ("OBJECTIONS") to the contents of the Title Commitment or the
Survey. Purchaser's failure to make objections within such Investigation
Period shall constitute Purchaser's waiver of Objections. Any matter shown
on the Title Commitment or on the Survey which is not objected to by
Purchaser (and in any event the Allianz Loan) shall be a "PERMITTED
EXCEPTION" hereunder. Seller will have five (5) days after its receipt of
the Objections to attempt to cure the Objections. If Seller is unwilling or
unable to cure the Objections within the period of time specified in the
preceding sentence, Purchaser's sole remedy shall be to elect only one of
the following by delivering written notice thereof to Seller and the Escrow
Agent within ten (10) days after Seller's receipt of the Objections:
(a) Terminate this Agreement and receive a refund of the
Deposit, in which event neither party shall have any further rights or
obligations hereunder except for those matters which specifically
survive the expiration or termination of this Agreement; or
(b) Waive the Objections (whereupon such previously objected to
item shall thereafter be deemed to be an additional Permitted
Exception hereunder) and proceed to close on the Property subject
thereto. If Purchaser does not timely make the required election in
writing, then Purchaser shall be deemed to have made the election
provided in this SECTION 4.3(B).
5. CONDITIONS PRECEDENT TO CLOSING. Closing of the purchase of the
Property hereunder shall be and hereby is conditioned upon satisfaction of each
of the following conditions (collectively, the "CONDITIONS PRECEDENT"):
5.1 ALLIANZ LOAN. Concurrently with the Closing, Purchaser (or its
permitted assign hereunder) shall assume, and Seller and JDMD Investments,
L.L.C., an Arizona limited liability company as guarantor ("GUARANTOR"),
shall be released from, all unaccrued obligations and payments then
remaining under the promissory note payable to the order of Allianz Life
Insurance Company of North America in the original principal amount of
Twenty Million Dollars ($20,000,000.00), the Deed of Trust, Assignment of
Rents, Security Agreement and Financing Statement recorded at Recorder's
No. 20021328713, Official Records of Maricopa County, Arizona, which
secures such promissory note and all related documents in connection
therewith (collectively, the "ALLIANZ LOAN"), upon such terms and
conditions as are reasonably acceptable to Seller, Guarantor, Purchaser and
the Lender (the "ALLIANZ LOAN ASSUMPTION AND RELEASE"). Notwithstanding the
foregoing to the contrary, in no event shall Purchaser be required to
accept any proposed material changes in the terms of the Allianz Loan or
any requirement by the Lender that the Allianz Loan be guarantied, except
for replacement of any existing guaranty or indemnity by Holualoa Arizona,
Inc. The documentation evidencing the Allianz Loan Assumption and Release
shall contain certifications by the Lender: (i) to the effect that the
Allianz Loan is in full force and effect and listing each and every
modification to the Allianz Loan; (ii) the amounts held in each impound,
5
reserve or repair account relating to the Allianz Loan (for which Seller
shall receive a credit at the Closing); (iii) to the effect that all
payments of principal and interest due are current; and (iv) to the effect
that there are no defaults under the Allianz Loan. Purchaser has initiated
and will pursue with commercially reasonable diligence the Allianz Loan
Assumption and Release. Purchaser solely shall be obligated for the
transfer fee and all costs and expenses imposed by the Lender in connection
with the Allianz Loan Assumption and Release.
5.2 TENANT ESTOPPEL CERTIFICATE. Purchaser shall have received on or
before fourteen (14) days prior to the Closing an estoppel certificate in
substantially the form attached hereto as EXHIBIT D from the Tenant. Seller
shall use commercially reasonable efforts to obtain the estoppel
certificate from the Tenant, but Seller shall not be required to expend
monies or make concessions or institute litigation in order to obtain such
estoppel certificate.
5.3 DUE PERFORMANCE BY SELLER. Seller shall not be in breach of any
of its material obligations under this Agreement.
5.4 DUE PERFORMANCE BY PURCHASER. Purchaser shall not be in breach of
any of its material obligations under this Agreement.
5.5 CONTINUED ACCURACY OF SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller's representations and warranties contained in this Agreement remain
true and correct as of the Closing Date.
5.6 TITLE POLICY. Title Insurer has issued, or remains irrevocably
committed to Purchaser to issue promptly after the Closing, the Title
Policy, subject only to the Permitted Exceptions.
If the Condition Precedent in SECTION 5.1 above has not been satisfied on or
before the Closing Date, this Agreement may be canceled by Seller or Purchaser
by written notice to the other party and to the Escrow Agent given on or before
the Closing Date. If the Condition Precedent in SECTION 5.4 has not been
satisfied on or before the Closing Date, this Agreement may be cancelled by
Seller by written notice to Purchaser and to the Escrow Agent given on or before
the Closing Date. If the Conditions Precedent in SECTIONS 5.2, 5.3, 5.5 OR 5.6
above have not been satisfied on or before the Closing Date, this Agreement may
be cancelled by Purchaser by written notice to Seller and to the Escrow Agent
given on or before the Closing Date. Upon any such cancellation, other than a
cancellation by Seller by reason of the failure of the Condition Precedent in
SECTION 5.4, the Deposit shall be refunded and returned to Purchaser. The
Parties shall be deemed to have waived any unsatisfied Conditions Precedent if
and when the Closing occurs.
6
6. CLOSING; COVENANTS.
6.1 CLOSING DATE. The consummation of the purchase of the Property
contemplated by this Agreement (the "CLOSING") shall take place in Phoenix,
Arizona, at the offices of the Escrow Agent on the date that is ten (10)
days after the last to occur of: (i) the expiration of the Investigation
Period; (ii) the date Seller cures any Objections pursuant to SECTION 4.3
or the date Purchaser gives written notice to Seller and Escrow Agent
pursuant to SECTION 4.3(B), or (iii) the date the Condition Precedent in
SECTION 5.1 of the Agreement is satisfied (the "CLOSING DATE"). Subject to
the proviso at the end of this sentence, but notwithstanding anything else
to the contrary, if the Closing Date has not occurred on or before November
1, 2004, this Agreement may be cancelled upon Seller or Purchaser giving
written notice of cancellation to the other party and to the Escrow Agent
before the Closing occurs; provided, that if Purchaser has pursued the
Allianz Loan Assumption and Release with commercially reasonably diligence,
but the Allianz Loan Assumption and Release has not been consummated on or
before November 1, 2004, then the November 1, 2004 deadline for the
occurrence of the Closing Date shall be extended to December 1, 2004, or
the date that is ten (10) days after the consummation of the Allianz Loan
Assumption and Release, whichever first occurs, solely for the purpose of
consummating the Allianz Loan and Assumption.
6.2 SELLER'S OBLIGATIONS AT CLOSING. On the Closing Date, Seller
shall execute and/or deliver to Purchaser, through the Escrow Agent as
applicable, the following:
(a) DEED. A Special Warranty Deed, in the form attached hereto
as EXHIBIT E, conveying the Real Property to Purchaser, together with
an Affidavit of Real Property Value as required by law.
(b) ASSIGNMENT AND ASSUMPTION OF LEASE. An Assignment and
Assumption of Lease, in the form attached hereto as EXHIBIT F (the
"ASSIGNMENT AND ASSUMPTION OF LEASE"), assigning Seller's landlord
interest in the Tenant Lease to Purchaser, subject to SECTIONS 6.6 AND
6.7 hereof.
(c) ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PERMITS. A
Blanket Transfer, Assignment and Assumption, in the form attached
hereto as EXHIBIT G (the "BLANKET ASSIGNMENT"), assigning Seller's
interest in the Contracts, Permits and Warranties for the Property to
Purchaser.
(d) NOTICE TO TENANT. A notice to the Tenant in the form
attached hereto as EXHIBIT H.
(e) ASSUMPTION AND RELEASE. The assumption and release
agreements concerning the Allianz Loan as contemplated by SECTION 5.1
hereof.
(f) TENANT ESTOPPEL CERTIFICATE. A Tenant estoppel certificate
as contemplated by SECTION 5.2 hereof.
7
(g) ORIGINAL DOCUMENTS. Originals of the Tenant Lease, the
Contracts, the Permits, and the Warranties to the extent in the
possession of Seller or Seller's Affiliates.
(h) FIRPTA AFFIDAVIT. A non-foreign affidavit properly executed
and containing such information as is required by IRC Section
1445(b)(2) and its regulations.
(i) TITLE DOCUMENTS. Such affidavits of Seller or other
documents as may be reasonably required by Title Insurer in order to
record the Closing documents and issue the Title Policy.
(j) ADDITIONAL DOCUMENTS. Such other documents as may be
required by the terms and conditions of this Agreement.
6.3 PURCHASER'S OBLIGATIONS AT CLOSING. On the Closing Date,
Purchaser shall execute and/or deliver to Seller, through the Escrow Agent
as applicable, the following with respect to the Project:
(a) PURCHASE PRICE. The Purchase Price payable at Closing by
wire transfer received no later than 11:00 a.m., M.S.T., on the
Closing Date.
(b) ASSIGNMENT AND ASSUMPTION OF LEASE. The Assignment and
Assumption of Lease.
(c) BLANKET ASSIGNMENT. The Blanket Assignment.
(d) ASSUMPTION AND RELEASE. The assumption and release
agreements concerning the Allianz Loan as contemplated by SECTION 5.1
hereof.
(e) TITLE DOCUMENTS. Such affidavits of Purchaser or other
documents as may be reasonably required by Title Company in order to
record the closing documents and issue the Title Insurance Policy.
(f) ADDITIONAL DOCUMENTS. Such other documents as may be
required by this Agreement, including an Affidavit of Real Property
Value as required by law.
6.4 CLOSING COSTS.
(a) Seller shall pay the following fees, costs and expenses in
connection with the Closing:
(i) All recording fees, transfer taxes, if any, and all
documentary stamps payable upon the recording of the Special
Warranty Deed in connection with the conveyance of the Real
Property;
8
(ii) The premium payable for the standard coverage portion
of the Title Policy of title insurance, plus one-half of Escrow
Agent's escrow fees; and
(iii) Seller's costs of document preparation and its
attorneys' fees.
(b) Purchaser shall pay the following fees, costs and expenses
arising in connection with the Closing:
(i) All costs and expenses of Tests and Studies incurred by
Purchaser;
(ii) All fees, costs and expenses imposed by the Lender
associated with the assumption and release of the Allianz Loan
contemplated by SECTION 5.1 above;
(iii) The premium payable for the extended coverage portion
of the Title Policy and all endorsements thereto requested by
Purchaser, plus one-half of Escrow Agent's escrow fees; and
(iv) Purchaser's cost of document preparation and its
attorneys' fees.
6.5 PRORATIONS. The following items as applicable to the Property
shall be prorated between Seller and Purchaser as of 12:01 a.m. on the
Closing Date (the "PRORATION DATE"):
(a) PROPERTY TAXES. City, state and county ad valorem taxes and
all general and special assessments payable during the calendar year
of Closing.
(b) OPERATING EXPENSES AND UTILITY CHARGES. Sanitary sewer
taxes, utility charges and any other operating expenses associated
with the operation of the Property, if any. Seller shall endeavor to
obtain final readings for electricity and utility charges for the
Project as of the Closing Date. All other items of accrued or prepaid
income and expenses (except delinquent rents) shall be prorated on an
accrual basis up to and including the Proration Date on the basis of
the most recent ascertainable amounts of or other reliable information
in respect to each such item of income and expense.
(c) ALLIANZ LOAN. Principal and interest payments due under the
Allianz Loan.
(d) RENTS. Basic Rent and Additional Rent (as defined in the
Tenant Lease) and other charges payable by the Tenant to the landlord
under the Tenant Lease (collectively, the "RENTS"). If on the Closing
Date the Tenant is delinquent for a period of ten (10) days or less in
the payment of Rents, a prorated share of the delinquent Rents shall
be credited in favor of Seller. If on the Closing Date the Tenant is
delinquent for a period of more than ten (10) days in the payment of
9
Rents, then no proration of the delinquent Rents shall be made at
Closing, and, after Closing, Seller shall have the right to proceed
against the Tenant for collection of such delinquent Rents, which
proceedings may include litigation for damages, but not eviction from
or dispossession of the leased premises. Purchaser shall diligently
cooperate in good faith, without cost or expense to Purchaser, with
Seller in Seller's collection efforts. If Seller recovers any such
delinquent Rents, the same shall be distributed in the following order
of priority: (i) to Seller for delinquent Rents due or accrued from
the Tenant prior to the Proration Date, then (ii) the balance to
Purchaser; if Purchaser recovers any such delinquent Rents, the same
shall be distributed in the following order of priority: (i) to
Purchaser for Rents due or accrued from the Tenant from and after the
Proration Date, then (ii) the balance to Seller.
All of the prorations required by this SECTION 6.5 shall account for and
reflect the direct payment (or contributions to the payment) by the Tenant
under the terms of the Tenant Lease of the items to be prorated. Also,
Seller and Purchaser acknowledged that, pursuant to the Allianz Loan
documents, all rental payments due under the Tenant Lease are required to
be made directly to the Lender, subject to agreed-upon disbursements as set
forth in the Allianz Loan documents.
6.6 TENANT REIMBURSEMENTS. Seller and Purchaser acknowledge and agree
that, pursuant to the Tenant Lease and the separate agreement between
Original Landlord and Tenant referenced in Section 4 of the Second
Amendment to Bondable Net Lease Agreement, the Tenant may be required to
reimburse Opus West Corporation, the original landlord under the Tenant
Lease ("ORIGINAL LANDLORD") for certain costs incurred by Original Landlord
in the completion of the Improvements being constructed by Original
Landlord for such Tenant, including without limitation those items
described in the next-to-last paragraph of SECTION 2 of the Work Letter
attached as Exhibit "B-1" to the Tenant Lease, and the Tenant may owe to
Original Landlord other sums that have accrued prior to the Closing Date.
All such sums shall remain the exclusive property of Original Landlord and
shall not be deemed to have been conveyed to Purchaser hereunder. Seller
and Purchaser also acknowledge and agree that, pursuant to the Purchase and
Sale Agreement dated July 17, 2002, between Original Landlord, as seller,
and Stratford American Corporation, as purchaser, the Original Landlord has
the right to proceed against the Tenant for collection of any such amounts,
which proceedings may include instituting litigation for damages, but not
eviction from or dispossession of the leased premises. The provisions of
this SECTION 6.6 shall survive the Closing.
6.7 WORK LETTER OBLIGATIONS. Seller and Purchaser acknowledge that,
pursuant to Article II and the first paragraph of Exhibit "B-1" of the
Tenant Lease, all warranties, rights and obligations of the Original
Landlord under the Tenant Lease that are set forth in Exhibit "B-1" to the
Tenant Lease remain the personal warranties, rights and obligations of
Original Landlord and do not transfer to Purchaser as the successor
landlord under the Tenant Lease.
6.8 LICENSE. Seller and Purchaser acknowledge that the Original
Landlord has an irrevocable license to enter the Property for its and its
affiliates' employees, contractors, materialmen and laborers to exercise
all rights and perform all obligations of the landlord under Exhibit "B-1"
10
to the Tenant Lease, including without limitation the completion of the
Landlord's Improvements (as defined in the Tenant Lease). Each of Seller
and Purchaser shall reasonably cooperate with Original Landlord to allow it
to exercise its rights and perform its obligations under Exhibit "B-1" to
the Tenant Lease. The provisions of this SECTION 6.8 shall survive the
Closing.
7. DAMAGE. If, prior to the Closing Date, all or any material part of the
Property is substantially damaged by fire, casualty, the elements or any other
cause, Seller shall immediately give notice to Purchaser of such fact and at
Purchaser's option (to be exercised by Purchaser giving notice thereof to Seller
and Escrow Agent prior to the earlier of the Closing Date or fifteen (15) days
after Seller's notice to Purchaser), this Agreement shall terminate, in which
event neither party will have any further obligations under this Agreement,
except for those obligations which expressly survive the termination of this
Agreement, and the Deposit shall be refunded to Purchaser. If Purchaser fails to
timely terminate despite such substantial damage, or if the Property is damaged
but not substantially, there shall be no reduction in the Purchase Price, and
Seller shall assign to Purchaser at the Closing all of Seller's right, title and
interest in and to the proceeds of all insurance related to such damage (except
that Seller shall not assign, and Seller shall retain, the proceeds of any rent
loss insurance relating to the period prior to Closing) along with Seller's
payment to Purchaser of an amount equal to any insurance deductibles related to
such damage. For purposes of this Section, the words "substantially damaged"
mean damage that would cost Five Hundred Thousand and No/100ths Dollars
($500,000.00) or more to repair. During the pendency of this Agreement, Seller
shall maintain casualty insurance on the Property in accordance with the
requirements of the Allianz Loan and so as to not require co-insurance, subject
only to any permitted deductible.
8. CONDEMNATION. If, prior to the Closing Date, eminent domain
proceedings are commenced against all or any part of the Property, Seller shall
immediately give notice to Purchaser of such fact and at Purchaser's option (to
be exercised by Purchaser giving notice thereof to Seller and Escrow Agent prior
to the earlier of the Closing Date or fifteen (15) days after Seller's notice to
Purchaser), this Agreement shall terminate, in which event neither party will
have further obligations under this Agreement, except for those obligations
which expressly survive the termination of this Agreement, and the Deposit shall
be refunded to Purchaser. If Purchaser fails to timely terminate despite such
eminent domain proceedings, there shall be no reduction in the Purchase Price,
and Seller shall assign to Purchaser at the Closing all of Seller's right, title
and interest in and to any award made or to be made in the eminent domain
proceedings. Except as expressly set forth in SECTION 7 or this SECTION 8, the
risk of loss or damage to the Property until the Closing shall be borne by
Seller.
9. REPRESENTATIONS AND WARRANTIES; "AS-IS" SALE.
9.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchaser that the following are true and
correct as of the Execution Date of this Agreement and, subject to the last
paragraph of this SECTION 9.1, shall be true and correct as of the Closing
Date:
(a) Seller is an Arizona limited liability company duly
organized under the laws of the State of Arizona and is authorized to
consummate the transactions contemplated by this Agreement.
11
(b) The execution of this Agreement and all documents and
instruments executed pursuant to this Agreement by Seller, the
delivery thereof to Purchaser, Seller's performance hereof and the
transactions contemplated hereby have been duly authorized by all
requisite action on the part of Seller and do not conflict with or
result in a violation of Seller's articles of organization, operating
agreement or any judgment, order or decree of any court or proceeding
to which Seller is a party, and all such documents are valid and
binding obligations of Seller and are enforceable in accordance with
their terms.
(c) Seller has received no written notice of the actual or
threatened reduction or curtailment of any utility service now
supplied to the Property.
(d) Seller is not a "foreign person", "foreign partnership",
"foreign trust" or "foreign estate" as those terms are defined in
Section 1445 of the Internal Revenue Code.
(e) To Seller's knowledge, there is no action, litigation,
investigation, condemnation or similar proceeding pending or
threatened of any kind against any portion of the Property which would
have a material adverse effect upon any portion of the Property.
(f) To Seller's knowledge and except as may be disclosed in any
environmental assessment (i) delivered to Purchaser as part of the
Investigation Materials or (ii) received by Purchaser during the
Investigation Period, there has been no production, disposal, storage
or release on the Property of any hazardous substances or material or
hazardous waste or pollutant (as that term is defined in A.R.S.
Section 49-201 (23)) or other toxic or radioactive substance or matter
by Seller in violation of applicable statutes, laws, rules or
regulations, including those materials identified in Section 49-921 of
the Arizona Revised Statutes and Title 40, Part 261 of the Code of
Federal Regulations, as they may be amended from time to time, and
including those materials subject to regulation under the Resource
Conservation and Recovery Act (as amended by the Hazardous and Solid
Waste Amendments of 1984), the Comprehensive Environmental Response,
Compensation and Liability Act (as amended by the Superfund Amendments
and Reauthorization Act of 1986), or any other applicable Federal,
state or local environmental protection law or regulation
(collectively, "Hazardous Materials"). To Seller's knowledge and
except as may be disclosed in any environmental assessment (i)
delivered to Purchaser as part of the Investigation Materials or (ii)
received by Purchaser during the Investigation Period, there is no
governmental proceeding or inquiry by any authority with respect
thereto, and Seller has not received any written notice from any
governmental authority of any violation of the above-mentioned
statutes, laws, rules or regulations, and there exist no underground
or above-ground storage tanks, asbestos or PCBs on the Property in
violation of applicable statutes, laws, rules or regulations.
(g) Except for the Tenant Lease, there will be no other existing
leases and/or tenancies affecting all or any portion of the Property
as of the Closing Date. Seller has paid all municipal privilege
12
license (sales) taxes and county transactional privilege taxes due by
reason of the rental income received by Seller under the Tenant Lease.
Subject to the Allianz Loan and to the provisions of Sections 6.6, 6.7
and 6.8 hereinabove, Seller holds all right, title and interest of the
Landlord under the Tenant Lease.
(h) The Investigation Materials delivered to Purchaser are true
and complete copies of the Investigation Materials in the possession
of Seller or Seller's Affiliates.
(i) Seller has not received notice from any governmental agency
or official, whether federal, state or local, that the Property or any
operations conducted thereon, whether currently or in the past, is or
was in violation of any law, rule, ordinance or regulations.
Whenever any representation or warranty of Seller is stated in
this Agreement to be "to Seller's knowledge", "to Seller's actual
knowledge" or "to the best of Seller's knowledge", such words shall
mean and be strictly limited and confined to the actual present
knowledge, without any obligation of inquiry or investigation, of Xxx
X. Xxxxxx and Xxxxx Xxxxx. Notwithstanding anything to the herein to
the contrary, Xx. Xxxxxx and Xx. Xxxxx shall not have any personal
liability or liability whatsoever with respect to any matters set
forth in this Agreement or Seller's representations and/or warranties
herein being or becoming untrue, inaccurate or incomplete in any
respect. Seller's representations and warranties as contained herein
shall survive the Closing Date for a period of eighteen (18) months,
but not thereafter, it being the intention of the parties that all
suits or actions for breach of any such representations or warranties
herein, and any action for indemnity against liabilities resulting
from any such breach, must identify any such representations or
warranties breached, and must be brought within such one-year period
or they shall be forever barred; provided, however, Seller shall have
no liability whatsoever to Purchaser with respect to a breach of any
of the representations and warranties herein contained if Purchaser
obtains actual knowledge of a fact or circumstance the existence of
which would constitute a breach of Seller's representations and
warranties hereunder prior to the Closing Date. In such event, if
Purchaser proceeds to Closing, without exercising the right of
termination set forth above, each representation or warranty shall be
deemed automatically amended to conform with the actual knowledge of
Purchaser as of the Closing Date, and Seller shall have no liability
whatsoever for such previously inaccurate representation or warranty.
The representations and warranties herein contained shall be deemed
automatically modified to the extent information contained in Tenant's
estoppel certificate delivered to Purchaser prior to Closing, or in
the Title Commitment or the exception documents referenced therein, in
the Survey, or in any environmental assessment received by Purchaser
during the Investigation Period is inconsistent with the matters
covered herein. To the extent that Seller's representations and
warranties herein contained are breached or become inaccurate after
the Execution Date by events or circumstances caused by persons or
parties other than Seller or Seller's Affiliates, such breach or
inaccurate representations and warranties shall continue to be a
Condition Precedent in accordance with SECTION 5.5 above, but Seller
13
shall have no liability whatsoever for such breached or inaccurate
representations or warranties.
9.2 "AS IS" SALE. Except as expressly provided in this Agreement,
Purchaser acknowledges that neither Seller, nor any member, manager,
employee, agent, representative or affiliate of Seller (collectively,
"SELLER'S AFFILIATES"), has made any statement, representation or promise
(whether oral or in writing) regarding the subject matter of this
transaction or the Property, including without limitation any statement or
representation as to the physical nature or condition of the Property, soil
and subsoil conditions, environmental conditions, surface water,
underground water, the Property's feasibility for any particular purpose,
the Property's zoning, development, use, potential use or operation, the
value of the Property, compliance of the Property or its operation with
law, or any other matter or thing affecting or related to the Property or
any use, development, enjoyment or operation thereof. Purchaser
acknowledges and agrees that Purchaser will conduct its own investigations
and studies of the Property and all aspects thereof, including without
limitation the Property's characteristics, its physical condition
(including any defects therein), all legal requirements applicable thereto,
the operation and use thereof, the environmental condition of the Property
and all matters described in the preceding sentence; if for any reason
whatsoever Purchaser is precluded by Seller from conducting such
investigations and studies, Purchaser shall be required to give written
notice thereof to Seller prior to the expiration of the Investigation
Period. Purchaser, by its approval of its review of the Property during the
Investigation Period and by its payment of the Purchase Price and
acquisition of the Property, acknowledges that Purchaser has approved all
such investigations and studies and the Property and all aspects thereof,
including all items described in the preceding sentences. Except as
expressly provided in SECTION 9.1, Purchaser agrees that Purchaser is
acquiring the Property in its present condition and state of repair, "AS
IS, WHERE IS", with all defects, faults and liabilities, patent or latent.
Except as expressly provided in SECTION 9.1, by so acquiring the Property,
(i) Purchaser unconditionally releases Seller and Seller's Affiliates from
all contract and/or tort claims, liabilities, actions, costs and expenses
of any kind or nature whatsoever, known or unknown, suspected or
unsuspected, fixed or contingent, which it now or hereafter may have
arising out of or relating to the Property, the physical condition of the
Property, any governmental law or regulation (including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act,
the Americans With Disabilities Act and other environmental laws )
applicable to the Property and the presence of any hazardous substances
and/or hazardous materials on, in or about the Property, and (ii) Purchaser
agrees that no patent or latent condition affecting the Property in any way
(including, without limitation, the presence or effects of any hazardous
substances and/or hazardous materials or any violations of applicable law
on the Property), whether or not known or discovered or hereafter
discovered, shall give rise to any right of damages, specific performance,
rescission or other claims by Purchaser against Seller. Except as provided
for in SECTION 9.1, Purchaser hereby acknowledges and agrees that Seller is
making absolutely no representation or warranty whatsoever with respect to
any of the Investigation Materials referenced in SECTION 3.3 above or any
other information provided by Seller, and that Purchaser shall be required
to verify the accuracy and details of all such Investigation Materials or
other information so provided by Seller to Purchaser in such manner as
Purchaser deems appropriate. Notwithstanding anything contained in this
14
Agreement to the contrary, Purchaser does not release or agree to
indemnify, defend, or hold harmless Seller from its fraud or intentional
misrepresentations.
9.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Seller that the following are true and correct
as of the Execution Date of this Agreement and, subject to the last
paragraph of this SECTION 9.3, shall be true and correct as of the Closing
Date:
(a) Purchaser is an Arizona corporation duly incorporated and in
good standing under the laws of the State of Arizona and is authorized
to consummate the transactions contemplated by this Agreement.
(b) The execution of this Agreement and all documents and
instruments executed pursuant to this Agreement by Purchaser, the
delivery thereof to Seller, Purchaser's performance hereof and the
transactions contemplated hereby have been duly authorized by all
requisite action on the part of Purchaser and do not conflict with or
result in a violation of any judgment, order or decree of any court or
proceeding to which Purchaser is a party and all such documents are
valid and binding obligations of Purchaser and are enforceable in
accordance with their terms.
Purchaser's representations and warranties as contained herein shall survive the
Closing Date for a period of eighteen (18) months, but not thereafter, it being
the intention of the parties that all suits or actions for breach of any such
representations or warranties herein, and any action for indemnity against
liabilities resulting from any such breach, must identify with specificity such
breach and must be brought within such one-year period or they shall be forever
barred; provided, however, Purchaser shall have no liability whatsoever to
Seller with respect to a breach of any of the representations and warranties
herein contained if Seller obtains knowledge of a fact or circumstance the
existence of which would constitute a breach of Purchaser's representations and
warranties hereunder prior to the Closing Date. In such event, if Seller
proceeds to Closing, without exercising the right of termination set forth
above, each representation or warranty shall be deemed automatically amended to
conform with the knowledge of Seller as of the Closing Date, and Purchaser shall
have no liability whatsoever for such previously inaccurate representation or
warranty. Whenever this Agreement refers to the knowledge of Purchaser, such
words shall mean and be strictly limited and confined to the actual present
knowledge, without any obligation of inquiry or investigation, of Xxxxx Xxxxxx,
Vice President of Purchaser, and I. Xxxxxxx Xxxxxx, President of Purchaser.
Notwithstanding anything herein to the contrary, Xx. Xxxxxx and Xx. Xxxxxx shall
not have any personal liability or liability whatsoever with respect to any
matters set forth in this Agreement or Purchaser's representations and/or
warranties herein being or becoming untrue, inaccurate or incomplete in any
respect.
10. DEFAULT.
10.1 DEFAULT BY SELLER. If Seller fails to perform any of Seller's
covenants under this Agreement, or if Seller otherwise defaults hereunder,
Purchaser shall have the right of specific performance of Seller's
obligations to Purchaser pursuant to this Agreement, or Purchaser, at its
option, may elect to terminate this Agreement, in which event the Deposit
15
and Hard Deposit shall be returned to Purchaser on written demand [AND
SELLER SHALL REIMBURSE PURCHASER FOR ALL OF PURCHASER'S OUT-OF-POCKET COSTS
INCURRED TO THIRD PARTIES IN PURSUING THIS TRANSACTION; PROVIDED, HOWEVER,
SUCH REIMBURSEMENT SHALL NOT EXCEED $125,000.] Purchaser hereby
acknowledges and agrees with Seller that the terms of the preceding
sentence shall constitute Purchaser's sole and exclusive rights and
remedies in the event of a breach or default hereunder by Seller prior to
Closing, and Purchaser hereby irrevocably waives and relinquishes any and
all other rights, in equity or at law, which it might otherwise have
against Seller, including, but not limited to, any action for damages
against Seller. Notwithstanding anything in this SECTION 10.1 or this
Agreement to the contrary, the foregoing provisions of this SECTION 10.1
shall not limit Seller's indemnification obligations under this Agreement
or any obligation of Seller which is to survive termination or expiration
of this Agreement.
10.2 DEFAULT BY PURCHASER. In the event prior to Closing Purchaser
should fail to consummate the transaction contemplated herein for any
reason except for (i) any permissible reasons set forth herein or (ii)
Seller's failure to close in accordance with the requirements of this
Agreement, Seller shall retain the Hard Deposit and Escrow Agent shall pay
to Seller the Deposit upon Seller's demand, such sums being agreed upon as
liquidated damages for the failure of Purchaser to perform the duties,
liabilities and obligations imposed upon it by the terms and provisions of
this Agreement and because of the difficulty, inconvenience and uncertainty
of ascertaining actual damages, and no other damages, rights or remedies
shall in any case be collectible, enforceable or available to Seller other
than as provided in this SECTION 10.2. Seller agrees to accept and take the
Hard Deposit and Deposit as its total damages and relief hereunder in such
event. Notwithstanding anything in this SECTION 10.2 or this Agreement to
the contrary, the foregoing provisions of this SECTION 10.2 shall not limit
Purchaser's indemnification obligations under this Agreement or any
obligation of Purchaser which is to survive termination or expiration of
this Agreement.
10.3 ATTORNEYS' FEES AND COSTS. In the event of any litigation between
the parties arising out of this Agreement or the collection of any funds
due Seller or Purchaser pursuant to this Agreement, the prevailing party
shall be entitled to recover from the non-prevailing party all costs
incurred, including without limitation reasonable attorneys' and
paralegals' fees and costs, whether such fees and costs are incurred at
trial, on appeal or in any bankruptcy proceedings.
11. BROKER. Seller and Purchaser warrant each to the other that they have
not dealt with any real estate broker with regard to this transaction other than
Xxxxx & Xxxxx/BRE Commercial (Xxxxxxx Xxxxxx and Xxxxx Xxx) (the "BROKER"). At
Closing, if and only if the transaction contemplated in this Agreement actually
closes pursuant to the terms of this Agreement, Seller shall pay to the Broker
the brokerage commission pursuant to a separate agreement between Seller and the
Broker. Seller and Purchaser warrant each to the other that they have not dealt
with any real estate broker other than Broker with regard to this transaction.
Purchaser shall indemnify, defend and hold harmless Seller from any and all
commissions claimed by any broker or third party, other than the Broker, arising
by virtue of this transaction whose commissions might legally arise from acts of
16
Purchaser. Seller shall indemnify, defend and hold harmless Purchaser from any
and all commissions claimed by any broker or third party (including the Broker)
arising by virtue of this transaction whose commissions might legally arise from
acts of Seller. The obligations of indemnity of Purchaser and Seller as
contained in this SECTION 11 shall survive the Closing.
12. ESCROW.
12.1 ESCROW AGENT AND ESCROW PROCEDURE. Escrow Agent, by acceptance of
the funds deposited by Purchaser hereunder, agrees to hold such funds and
to disburse the same only in accordance with the terms and conditions of
this Agreement, which shall serve as escrow instructions to Escrow Agent.
In the event of a termination of this Agreement or a default under this
Agreement, the Deposit (inclusive of the interest accrued thereon) shall be
delivered or disbursed by Escrow Agent as provided in this Agreement.
12.2 CLOSING PROTECTION LETTER. Since Escrow Agent acts as an agent
for the Title Insurer, Escrow Agent will cause the Title Insurer to issue
to Seller and Purchaser, within five (5) days following the Execution Date
of this Agreement, a closing protection letter in written form reasonably
satisfactory to Seller and Purchaser.
13. OTHER CONTRACTUAL PROVISIONS.
13.1 ASSIGNMENT. Purchaser may not assign its rights under this
Agreement without the prior written consent of Seller, which consent shall
not be unreasonably withheld or delayed; provided, however, upon prior
written notice to Seller, Purchaser may assign all (but not less than all)
of its rights and obligations to an entity controlled by the principals of
Purchaser, to an entity controlled by, controlling or under common control
with Purchaser, or to a "qualified intermediary" in order to accomplish a
like kind exchange (either forward or reverse) within the meaning of
Section 1031 of the Internal Revenue Code of 1986, as amended.
Notwithstanding the foregoing, no such assignment may be made unless any
such permitted assignee (other than such a "qualified intermediary")
assumes all obligations of Purchaser hereunder in writing in form
reasonably acceptable to Seller. Any assignment consented to by Seller
shall be subject to all the provisions, terms, covenants and conditions of
this Agreement, and the assignor shall, in any event, continue to be and
remain liable under this Agreement.
13.2 NOTICES. All notices which are required or permitted hereunder
must be in writing and shall be deemed to have been given, delivered or
made, as the case may be (i) when delivered by personal delivery, (ii)
three (3) business days after having been deposited in the United States
mail, certified or registered, return receipt requested, sufficient postage
affixed and prepaid, (iii) one (1) business day after having been deposited
with an expedited, overnight courier service, or (iv) when delivered by
telecopy or facsimile, addressed to the party to whom notice is intended to
be given at its address set forth below:
17
Seller: Scottsdale Xxxxxxxx Peak, LLC
2400 East Arizona Biltmore Circle, Building Two
Phoenix, Arizona 85016
Attn: Xx. Xxx X. Xxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to: Xxxxx & Xxxxxx L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Email: xxxxxx@xxxxx.xxx
Purchaser: Holualoa Arizona, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to: Xxxxx and Roca LP
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Email: xxxxxxx@xxxxx.xxx
Escrow Agent: Xxxxxxx Title & Trust of Phoenix, Inc.
0000 Xxxxx Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx Xxxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
Any party may change the address to which its notices are sent by
giving the other party written notice of any such change in the manner
provided in this Section, but notice of change of address is effective only
upon receipt.
13.3 ENTIRE AGREEMENT. This Agreement embodies and constitutes the
entire understanding among the parties with respect to the transaction
contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged
into this Agreement. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged or terminated except by an instrument
in writing signed by the party against which the enforcement of such
18
waiver, modification, amendment, discharge or termination is sought, and
then only to the extent set forth in such instrument.
13.4 APPLICABLE LAW; JURISDICTION; VENUE; DAMAGE. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Arizona. The parties hereby consent to jurisdiction and venue in Maricopa
County, Arizona, and agree that such jurisdiction and venue shall be sole
and exclusive for any and all actions or disputes related to this Agreement
or any related instruments. Each of Seller and Purchaser hereby waive any
right to collect any punitive, special, exemplary or consequential damages
against the other party.
13.5 HEADINGS. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
13.6 BINDING EFFECT. Subject to the provisions of SECTION 13.1, this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their successors and assigns.
13.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument,
but all such counterparts together shall constitute one and the same
instrument.
13.8 INTERPRETATION. Whenever the context hereof shall so require, the
singular shall include the plural, the male gender shall include the female
gender and neuter and vice versa. This Agreement and any related
instruments shall not be construed more strictly against one party than
against the other by virtue of the fact that initial drafts were made and
prepared by counsel for one of the parties, it being recognized that this
Agreement and any related instruments are the product of extensive
negotiations between the parties hereto and that both parties hereto have
contributed substantially and materially to the final preparation of this
Agreement and all related instruments.
13.9 SEVERABILITY. In case anyone or more of the provisions contained
in the Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
13.10 TIME OF ESSENCE. Time is of the essence of each and every term,
provision and covenant of this Agreement. Should any period of time
prescribed herein end on a Saturday, Sunday or legal holiday recognized in
Maricopa County, Arizona, the period of time shall automatically be
extended to the next business day. The term "business day" as used in this
Agreement shall mean any calendar day which is not a Saturday, Sunday or
legal holiday recognized in Maricopa County, Arizona.
13.11 AUTHORITY OF PARTIES. Seller and Purchaser represent to each
other that each has full power and authority to enter into and perform this
Agreement, all related instruments and the documentation contemplated
hereby and thereby in accordance with their respective terms and that the
delivery and performance of this Agreement, all related instruments and the
19
documentation contemplated hereby and thereby has been duly authorized by
all necessary action.
13.12 NO WAIVER. Neither the failure of either party to exercise any
power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, nor any custom or practice of
the parties at variance with the terms hereof, shall constitute a waiver of
either party's right to demand exact compliance with the terms hereof.
13.13 IRS REPORTING REQUIREMENTS. Seller and Purchaser acknowledge and
agree that Section 6045(e) of the Internal Revenue Code of 1986 requires
that notice of the sale and purchase of the Property described in this
Agreement be provided to the Internal Revenue Service (herein "IRS") by
preparation of and filing with the IRS of IRS Form 1099-8; and further,
Seller and Purchaser agree to furnish and provide to the Escrow Agent any
and all information that the Escrow Agent may require in order for the
Escrow Agent to (a) comply with all instructions to the IRS Form 1099-8 in
the preparation thereof, and (b) prepare and timely file with the IRS said
IRS Form 1099-8 with respect to this transaction. Escrow Agent shall duly
and timely prepare and file all such filings as required herein.
13.14 AGREEMENT NOT RECORDABLE. Neither this Agreement nor any notice
thereof shall be recorded by any party hereto, or any agent of same, in any
public records. Purchaser agrees that it will not attempt to record this
Agreement or any notice thereof and that any attempt to record this
Agreement or any notice thereof shall constitute a default on the part of
Purchaser hereunder.
13.15 RETURN OF DOCUMENTS; CONFIDENTIALITY. In the event that this
Agreement is terminated or canceled without Purchaser acquiring the
Property pursuant to the terms hereof, Purchaser shall, within five (5)
business days thereafter, deliver to Seller all due diligence items,
including all Tests and Studies, regarding the Property in Purchaser's
possession or control and all other information furnished to or obtained by
Purchaser with respect to the Property. Purchaser agrees not to disclose
any of the information provided in the documents referenced in the
preceding sentence or in this Agreement.
13.16 SURVIVAL. Subject to the express limitations on survival of the
parties' representations and warranties contained in SECTION 9.1 AND
SECTION 9.3, each of the terms and provisions of this Agreement that are
not incorporated into the Deed, or which are not satisfied by the execution
and delivery of the Deed, or which by their nature require the parties to
perform certain acts subsequent to the Closing, shall survive the Closing.
13.17 LIKE-KIND EXCHANGE. If either Seller or Purchaser so requests,
the other party shall cooperate with the requesting party to the extent
reasonably necessary for the requesting party to qualify this transaction
as a like kind exchange within the meaning of Section 1031 of the Internal
Revenue Code of 1986, as amended; provided, however, that the
non-requesting party shall not be obligated to incur any additional
material expense (including attorney's fees) or liability on account of its
accommodation of the requesting party, nor shall such tax deferred exchange
delay the Closing.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
PURCHASER: SELLER:
HOLUALOA ARIZONA, INC., SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona corporation an Arizona limited liability company
By: /s/ Xxxxx Xxxxxx
--------------------------------- By: Stratford American Corporation,
Name: Xxxxx Xxxxxx an Arizona corporation, as Manager
Title: V.P. and Member
Federal Taxpayer Identification
No. 00-0000000 By: /s/ Xxx X. Xxxxxx
------------------------------
Xxx X. Xxxxxx, President
BROKER'S ACCEPTANCE
The undersigned, Xxxxx & Xxxxx/BRE Commercial, agrees to the provisions of
SECTION 11 of the foregoing Agreement.
XXXXX & XXXXX/BRE COMMERCIAL
By /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
By /s/ Xxxxx Xxx
------------------------------------
Xxxxx Xxx
21
ESCROW AGENT'S ACCEPTANCE
The undersigned, Xxxxxxx Title & Trust of Phoenix, Inc., agrees to act as
Escrow Agent in accordance with the foregoing Agreement.
XXXXXXX TITLE & TRUST OF PHOENIX, INC.
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
22
SCHEDULE OF EXHIBITS
EXHIBIT A Description of the Project
EXHIBIT B Legal Description of the Project
EXHIBIT C Tenant Lease
EXHIBIT D Tenant Estoppel Certificate Form
EXHIBIT E Special Warranty Deed
EXHIBIT F Assignment and Assumption of Lease
EXHIBIT G Blanket Transfer, Assignment and Assumption
EXHIBIT H Notice to Tenant
23
EXHIBIT A
DESCRIPTION OF THE PROJECT
A two-story office building located at 20225 North Scottsdale Road, Scottsdale,
Arizona, containing approximately 157,566 rentable square feet of space located
on approximately 5.85 acres of land.
EXHIBIT B
LEGAL DESCRIPTION OF THE PROJECT
PARCEL NO. 1:
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on said East right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
A.R.S.
PARCEL NO. 2:
A perpetual, non-exclusive right of way and Easement for drainage as set forth
in instrument recorded in Document No. 2001-292316.
PARCEL NO. 3:
A perpetual, non-exclusive Easement for utility and access as set forth in
instrument recorded in Document No. 2001-921609.
PARCEL NO. 4:
Easements for parking, access, drainage, utilities and encroachments as set
forth in instruments recorded in Document No. 2001-790145 and in Document No.
2003-0366082.
2
EXHIBIT C
TENANT LEASE
TENANT/DOCUMENT DOCUMENT DATE
1. THE REINALT-XXXXXX CORPORATION
(a) Bondable Net Lease Agreement 04/10/01
(b) First Amendment to Bondable Net Lease Agreement 09/28/01
(c) Memorandum of Lease 04/10/01
(d) Letter Agreement 08/21/02
(e) Multiparty Guaranty 09/__/02
(f) Second Amendment to Bondable Net Lease Agreement 10/21/02
(g) Assignment and Assumption of Lease (Opus to Stratford,
Auriga, Golden Gate and DRD Trust) 12/11/02
(h) Assignment and Assumption of Lease (Stratford, Auriga,
Golden Gate and DRD Trust to Scottsdale Xxxxxxxx Peak,
LLC) 12/11/02
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
To: Scottsdale Xxxxxxxx Peak, LLC,
an Arizona limited liability company
2400 East Arizona Biltmore Circle, Building Two
Phoenix, Arizona 85016
Attn: Xx. Xxx X. Xxxxxx
Holualoa Arizona, Inc., is successors and assigns (Purchaser)
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
and
Allianz Life Insurance Company of North America ("Lender")
c/o Allianz of America, Inc.
00 Xxxxxx Xxxxx Xxxx
P.O. Box 5160
Westport, Connecticut 06881-5160
RE: DISCOUNT TIRE CO., INC. CORPORATE HEADQUARTERS ( THE "PROPERTY")
The undersigned lessee ("TENANT") under that certain Bondable Net Lease
Agreement dated April 10, 2001, as amended by that certain (i) First Amendment
to Bondable Net Lease Agreement dated September 28, 2001, and (ii) Second
Amendment to Bondable Net Lease Agreement dated October 21, 2002 (as amended,
"LEASE") by and between Tenant and Scottsdale Xxxxxxxx Peak, LLC, an Arizona
limited liability company ("LANDLORD"), successor in interest to Opus West
Corporation, a Minnesota corporation, as original lessor ("OPUS"), covering
premises commonly known as or located at 00000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000 ("LEASED PREMISES"), certifies the following as of the
date hereof:
1. Tenant is the lessee under the Lease demising the Leased Premises.
Except as set forth above, the Lease has not been modified, changed, altered,
amended or assigned in any respect. The Lease contains all of the understandings
and agreements between Tenant and Landlord with respect to the Leased Premises.
2. The term of the Lease commenced on December 9, 2002 and will expire on
December 31, 2024 (excluding unexercised extensions). The Lease contains no
rights to extend the term of the Lease, except as expressly set forth in the
Lease.
3. The Leased Premises consist of 157,566 rentable square feet. Tenant's
security deposit is $0.00. The fixed Basic Rent payable by Tenant under the
Lease is as follows:
Period Annual Basic Rent Monthly Basic Rent
------ ----------------- ------------------
Years 1 through 5 $2,096,250.00 $174,687.50
Years 6 through 10 $2,305,875.00 $192,156.25
Years 11 through 15 $2,536,462.50 $211,371.88
Years 16 through 22 $2,790,108.75 $232,509.06
4. The Lease is valid and in existence as executed and is in full force
and effect. To the best of Tenant's actual knowledge, there is presently no
default, nor any condition or circumstance which, with the giving of notice or
the passage of time (or both), would result in a default under the Lease, by
either Tenant or Landlord.
5. Tenant has paid all installments of rent in the time and manner
required under the Lease through and including the date hereof without deduction
or setoff. Tenant has not made any prepayment of rent or other charges under the
Lease beyond the current month. Tenant has made no agreements with Landlord or
its agents or employees concerning free rent, partial rent, rebate of rental
payments or any other type of rental concession.
6. Tenant has no existing defenses, offsets, claims or credits against
rentals payable under the Lease.
7. Tenant has not entered into any sublease, assignment or other
agreement transferring or hypothecating all or any portion of its interest in
the Leased Premises or the Lease.
8. Tenant has accepted and taken possession of all of the Leased Premises
and all tenant improvement work to be performed by Landlord under the Lease or
by Opus has been completed. There are no payments or credits for tenant
improvement work currently due and payable by Landlord to Tenant which have not
been paid or applied. Tenant is not entitled to any future payment or credit for
tenant improvement work with respect to the Leased Premises.
9. Except as expressly set forth in the Lease, Tenant has not been
granted any options to terminate the term of the Lease earlier than the date
specified in paragraph 2 above, nor any rights of first refusal to lease any
other space in the Property. Tenant does not have any outstanding options to
purchase, or rights of first refusal or first offer to purchase, the Leased
Premises or any part of the Property.
10. No actions, whether voluntary or otherwise, are pending against Tenant
under the bankruptcy laws of the United States or any states thereof.
11. Tenant's obligations under the Lease are guaranteed pursuant to the
terms and conditions of that certain Multiparty Guaranty dated September ____,
2002, a copy of which is attached hereto as Exhibit "A" attached hereto and made
2
a part hereof, which is valid and in existence as executed and is in full force
and effect.
12. To the best of Tenant's actual knowledge, the use, maintenance or
operation of the Leased Premises complies with all applicable federal, state,
county or local statutes, laws, rules, ordinances, regulations, orders and
directives of any governmental authority relating to environmental, health or
safety ("LAWS"). Tenant has not received any written notice of any present
violation of any laws relating to the use or condition of the Leased Premises or
the Property.
13. Tenant hereby attorns to the Purchaser, as landlord, in the event that
Purchaser acquires the Property from Landlord.
14. TENANT ACKNOWLEDGES THAT THIS CERTIFICATION IS BEING REQUIRED BY
PURCHASER. THIS CERTIFICATION IS MADE WITH THE KNOWLEDGE THAT THE PURCHASER IS
ABOUT TO PURCHASE THE PROPERTY. TENANT UNDERSTANDS AND INTENDS THAT PURCHASER,
AND ITS SUCCESSORS AND ASSIGNS, WILL BE RELYING UPON THE TRUTH OF THIS
CERTIFICATION.
15. The undersigned is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Dated: ____________________, 2004
TENANT:
THE REINALT-XXXXXX CORPORATION,
a Michigan corporation
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Its: Secretary
3
EXHIBIT "A" TO EXHIBIT D
MULTIPARTY GUARANTY
This Multiparty Guaranty ("Lease Guaranty") is executed as of the ____ day
of September, 2002 by each of the parties listed on the signature pages hereof
(each, a "Guarantor" and collectively, the "Guarantors") jointly and severally,
for the benefit of OPUS WEST CORPORATION, a Minnesota corporation, and its
successors and assigns ("Landlord").
RECITALS
A. Landlord, as Landlord, and THE REINALT-XXXXXX CORPORATION, a
Michigan corporation, as Tenant, entered into a Bondable Net Lease Agreement
dated April 10, 2001, as amended by the First Amendment to Bondable Net Lease
Agreement dated September 28, 2001 and by the Second Amendment to Bondable Net
Lease Agreement of even date with this Lease Guaranty (as so amended, and as may
hereafter be amended, the "Lease") for the premises described therein.
B. Guarantors are the guarantors under a Multiparty Guaranty dated
as of March 28, 2002 as the same may be amended from time to time (the "Note
Purchase Guaranty") with respect to certain Note Purchase Agreement, dated as of
March 28, 2002, pursuant to which the beneficiaries of the Note Purchase
Guaranty agreed to purchase notes from Tenant.
C. Landlord has requested Guarantors, and Guarantors have agreed, to
execute this Lease Guaranty subject to and on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the premises and of other valuable
consideration, each Guarantor hereby agrees with Landlord as follows:
AGREEMENT
1. Each Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Landlord the timely payment of a11 rent and the timely payment
and performance of all other monetary and non-monetary obligations of Tenant
under the terms of the Lease (collectively, the "Guaranteed Obligations"). This
Lease Guaranty is an absolute guaranty of payment and performance and not of
collection. This Lease Guaranty will survive the early termination of the Lease
and will continue in full force and effect with respect to any of Tenant's
obligations under the Lease that are not fully performed upon the early
termination of the Lease; provided, however, notwithstanding anything to the
contrary in this Lease Guaranty, upon the earliest to occur of:
(a) the seventh anniversary of the date of this Lease Guaranty, or
(b) the release, discharge or termination (by agreement, operation of
law or otherwise) of all of the Guarantors from liability under the Note
Purchase Guaranty by the beneficiaries thereof, (but only if thereafter the
Guarantors no longer guaranty the Note Purchase Agreements or any refinancing
thereof), or
(c) Tenant's general unsecured debt obligations have an investment
grade of at least "2" by the NAIC (National Association of Insurance Carriers)
or "BBB(-)" by any other national rating agency, without guaranties of other
entities, (the "Termination Date"), all of the Guarantors shall be released
from any and all liabilities and obligations under this Lease Guaranty except
liability for Guaranteed Obligations that accrued and became payable by Tenant
or any Guarantor prior to the Termination Date.
2. Each Guarantor shall have the right to cure any default by Tenant
within the cure period applicable to Tenant under the Lease, and any such cure
by Guarantors shall be accepted by Landlord as though performed by Tenant.
3. The liability of each Guarantor hereunder shall be primary and
direct. The failure to insist upon strict or timely performance by Tenant
pursuant to the Lease shall not release any Guarantor from the Guaranteed
Obligations. Subject to the limitation set forth in Section 1 above, each
Guarantor hereby absolutely, irrevocably and unconditionally covenants and
agrees that it shall remain liable for the Guaranteed Obligations
notwithstanding any liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of or other similar proceedings
affecting the status, composition, identity, existence, assets or obligations of
Tenant.
4. Each Guarantor makes the following representations and warranties
which shall be continuing representations and warranties so long as this Lease
Guaranty remains outstanding:
(a) The Lease is of direct or indirect interest, advantage or
financial benefit to the Guarantor.
(b) This Lease Guaranty is a valid and legally binding obligation of
the Guarantor enforceable in accordance with its terms.
(c) The execution and delivery of this Lease Guaranty are not, aud
the performance of this Lease Guaranty will not be, in contravention of, or in
conflict with, any agreement, indenture or undertaking to which the Guarantor is
a party or by which the Guarantor is or may be bound or affected.
(d) The Guarantor has a copy of and is fully familiar with the Lease
and each of its Exhibits.
5. Landlord may, without the consent of any Guarantor and without
affecting this Lease Guaranty, at any time and from time to time: (a) amend,
modify, or defer the time for performance of any provision of the Lease,
including any change in the provisions affecting the Guaranteed Obligations
(whether increasing or decreasing Tenant's responsibility or liability
therefor), or (b) make any agreement with Tenant for the extension, payment,
compromise, discharge or release of any obligation under the Lease, or for any
modification of the terms of the Lease, including, without limitation, any of
the Guaranteed Obligations, without notice to or the consent of Guarantors, and
the obligations of Guarantors under this Lease Guaranty shall not be impaired.
amended, reduced, diminished or affected by any of the foregoing.
-2-
6. Each Guarantor expressly agrees that the validity of this Lease
Guaranty and its obligations hereunder shall in no way be terminated, affected,
reduced, diminished or impaired by reason of the assertion by Landlord against
Tenant of any of the rights or remedies reserved to Landlord by the Lease or
otherwise at law or in equity as a result of Tenant's breach of any of its
obljgations under the Lease or otherwise. Each Guarantor further covenants and
agrees that this Lease Guaranty and the full liability of Guarantor hereunder
shall remain and continue in full force and effect notwithstanding the
occurrence of any one or more of the following events (whether or not the
Guarantor shall have received any notice or consented to such transaction): (a)
any event described in Section 5 of this Lease Guaranty; (b) any assignment or
transfer by Landlord under the Lease; (c) any assignment, sublease or transfer
by Tenant permitted under the Lease (unless this Lease Guaranty is released in
writing by Landlord); (d) any dissolution or liquidation of Landlord or Tenant;
(e) any failure or delay by Landlord to exercise any remedy or right as to
Tenant or Guarantors; (f) the fact that Landlord's interest under the Lease may
be foreclosed upon or transferred by Landlord in a deed in lieu of foreclosure
transaction or similar transaction; or (g) the fact that Tenant may be a party
to any merger, consolidation or reorganization; if Tenant is a disappearing
party in any such merger, consolidation or reorganization, then Guarantors shall
nevertheless remain liable for the Guaranteed Obligations in accordance with
this Lease Guaranty.
7. Each Guarantor further agrees that the obligations of Guarantors
hereunder are independent of the obligations of Tenant and that as to any right
of action which shall accrue to Landlord with respect to the Guaranteed
Obligations, Landlord may, at its sole and exclusive option and in its sole and
absolute discretion (without the need for any notice to any Guarantor), proceed
(a) against Tenant alone (without having made any prior demand upon any
Guarantor or having commenced any action against any Guarantor or having
obtained or having attempted to satisfy any judgment against any Guarantor), or
(b) against anyone or more of the Guarantors, singly or in any order or
combination, jointly or severally, or (c) against Tenant and anyone or more of
tile Guarantors, in any order or combination, jointly or severally. With the
exception only of the defenses of performance by Tenant and the default or
failure to perform by Landlord (which defenses each Guarantor shall have under
this Lease Guaranty, notwithstanding anything to the contrary in this Lease
Guaranty), all defenses of the law of guaranty, identification, and suretyship
are hereby waived and released by each Guarantor. Each Guarantor expressly
waives any defense or benefit arising out of any impairment of its rights of
subrogation or its right to proceed against Tenant or its property. Each
Guarantor expressly waives any right to require Landlord to proceed against
Tenant or any other person or any security now or hereafter held by Landlord or
to pursue any other right or remedy whatsoever.
8. Each Guarantor hereby waives any defense arising by reason of any
disability, lack of authority, or termination of existence of Tenant, or by
reason of the bankruptcy, insolvency, reorganization or other debtor's relief
afforded to Tenant pursuant to the present or any future provisions of the
United States Bankruptcy Act or any other state or federal statute, or cessation
from any cause whatsoever of the liability of Tenant other than performance and
discharge of the Guaranteed Obligations.
9. Each Guarantor waives (a) all presentments, demands for performance,
notices of non-performance, protests, notices of protests, notices of dishonor
-3-
and notices of acceptance of this Lease Guaranty and of the existence, creation
or incurring of all or any part of the Guaranteed Obligations now existing or
hereafter arising and (b) the benefits of any statutory provision limiting the
liability of a surety including, without limitation, the provisions of Arizona
Revised Statutes Section 12-1641 et sec., Section 44-142 and Section 47-3605 and
Arizona Rules of Civil Procedure Section 17(f). Each Guarantor acknowledges that
it has access to and knowledge of all information relevant to the financial
condition of Tenant.
10. This Lease Guaranty shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors and assigns.
11. In addition to the Guaranteed Obligations, each Guarantor shall, upon
demand, pay to and reimburse Landlord for all costs, reasonable attorneys' fees
and other expenses which Landlord may expend or incur in the enforcement of
rights against Tenant in respect of the Guaranteed Obligations or in the
enforcement of this Lease Guaranty. In the event any legal proceedings are
brought with respect to the enforcement of this Lease Guaranty, the prevailing
party or parties in such proceedings shall be entitled to recover from the
losing party or parties all reasonable costs and expenses of such proceedings,
including reasonable attorneys' fees, in such amount as may be determined by the
court having jurisdiction of such proceedings.
12. If any payments of money or transfer of property made to Landlord by
Tenant would, for any reason subsequently be declared to be fraudulent (within
the meaning of the state or federal law relating to fraudulent conveyances),
preferential or otherwise voidable or recoverable, in whole or in part, for any
reason under the Bankruptcy Act or any other federal or state law (hereinafter
collectively called "voidable transfer"), and Landlord is required to and
actually does repay or restore any such voidable transfer, or the amount or any
portion thereof, then as to any such voidable transfer or the amount repaid or
restored and all costs and expenses of Landlord related thereto, including
reasonable attorneys' fees, each Guarantor's liability hereunder shall
automatically be revived, reinstated or restored and shall exist as though such
voidable transfers had never been made to Landlord.
13. This Lease Guaranty is and shall be deemed to be entered into and
pursuant to the interna1, local laws of the State of Arizona (excluding any
conflicts of law provisions) and shall in all respects be governed, construed,
applied and enforced in accordance with the laws of such state.
14. If any provision of this Lease Guaranty is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Lease Guaranty and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
15. No modification or amendment of any provision of this Lease Guaranty,
nor consent to any departure by any Guarantor therefrom, sha11 be effective
unless the same shall be in writing and signed by Landlord, and then shall be
effective only in the specific instance and for the purpose for which given.
16. The obligations of each Guarantor under this Lease Guaranty are joint
and several. The liability of each Guarantor is independent of the obligations
-4-
of each other Guarantor and a separate action or actions may be brought,
prosecuted and enforced by Landlord against anyone or more Guarantors whether or
not any action is brought, prosecuted or enforced against any other Guarantors
or whether any other Guarantors are joined in any such action or actions, and
without releasing the rights of Landlord against any such Guarantors.
17. Landlord's recourse against each Guarantor who is a partnership shall
be limited to the partnership property, and no general partner of a Guarantor
sha1l have any personal liability for liabilities of that partnership under this
Lease Guaranty. Landlord shall not seek any personal judgment against such
partners in their individual capacity nor shall the property of any such general
partner be subject to levy or execution to satisfy any judgment against the
Guarantor.
18. Landlord may sell, assign, or otherwise transfer its interest in the
leased premises or the Lease at any time. If Landlord transfers (other than for
collateral security purposes) the ownership of Landlord's interest in the
Lease, this Lease Guaranty shall, unless Landlord elects otherwise in writing,
automatically apply in favor of the transferee with respect to all Guaranteed
Obligations.
19. In the event any Guarantor is removed or released by the beneficiaries
of the Note Purchase Agreement as a guarantor under the Notes Purchase Guaranty,
then such Guarantor shall also be released as Guarantor under this Lease
Guaranty. The parties agree to execute documents necessary to effectuate the
release of such Guarantor or Guarantors hereunder.
EXECUTED as of the date first set forth above.
DISCOUNT TIRE CO., INC.,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Chairman
-----------------------------------
HURON VALLEY TIRE CO., INC.,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: President
-----------------------------------
-5-
HALLE ENTERPRISES, L.L.C.,
an Arizona limited liability company
By: Wilanna, Inc., an Arizona corporation
Managing Member
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Managing Member
-----------------------------------
HALLE PROPERTIES, L.L.C.,
an Arizona limited liability company
By: Wilanna, Inc., an Arizona corporation
Managing Member
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Managing Member
-----------------------------------
HALLE-VON VOIGTLANDER,
a Michigan general partnership
By: Wilanna, Inc., an Arizona corporation
Managing Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: President
-----------------------------------
ASHANCO COMPANY,
an Arizona general partnership
By: Xxxxx X. Xxxxx, its general partner
/s/ Xxxxx X. Xxxxx
------------------------------------------
DISCOUNT TIRE CO., INC.,
an Arizona corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Chairman
-----------------------------------
-6-
DISCOUNT TIRE CO., INC.,
an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF COLORADO, INC.,
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF GEORGIA, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO. OF OHIO, INC.,
an Ohio corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF MINNESOTA, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
-7-
DISCOUNT TIRE COMPANY OF NEW MEXICO, INC.,
a New Mexico corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF NEVADA, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO. OF OREGON, INC.,
an Oregon corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF TEXAS, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
-8-
DISCOUNT TIRE CO. OF UTAH, INC.,
a Utah corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO. OF WASHINGTON, INC.,
a Washington corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE COMPANY OF WISCONSIN, INC.,
a Wisconsin corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE DIRECT, INC.,
an Arizona corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
INDIANA DISCOUNT TIRE COMPANY, INC.,
an Indiana corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
-9-
SOUTHERN CALIFORNIA DISCOUNT TIRE CO.,
INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
MASSACHUSETTS DISCOUNT TIRE CO., INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO. OF NORTH CAROLINA, INC.,
a North Carolina corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
DISCOUNT TIRE CO. OF SOUTH CAROLINA, INC.,
a South Carolina corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
D.T.C. OF IDAHO, INC.,
an Idaho corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
-10-
REINALT XXXXXX REALTY COMPANY,
a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
-11-
EXHIBIT E
WHEN RECORDED, RETURN TO:
Xxxxx and Roca LLP
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxx, Esq.
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
undersigned SCOTTSDALE XXXXXXXX PEAK, LLC, an Arizona limited liability company
(the "Grantor"), does hereby grant and convey to ______________________________,
a(n) _____________________ (the "Grantee"), that certain real property situated
in Maricopa County, Arizona legally described as set forth on EXHIBIT A hereto,
together with all rights and privileges appurtenant thereto and any improvements
thereon.
The above-described property is conveyed subject to all taxes and other
assessments, reservations and patents and all easements, rights of way,
encumbrances, liens, covenants, conditions, restrictions, obligations and
liabilities as may appear of record, zoning ordinances and regulations, matters
which would be revealed by a survey or an inspection of the above-described
property, and any laws, ordinances or governmental regulations restricting or
regulating the use, occupancy or enjoyment of such real property.
The Grantor hereby binds itself and its successors to warrant and defend
the title as against all acts of the Grantor herein and no other, subject to the
matters above set forth.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed
this ____ day of __________________, 2004.
SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona limited liability company
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this ____ day of
______________, 2004, by _______________________, the ______________ of
Stratford American Corporation, an Arizona corporation, as Manager and Member of
SCOTTSDALE XXXXXXXX PEAK, LLC, an Arizona limited liability company, on behalf
of the limited liability company.
__________________________________________
Notary Public
My Commission Expires:
______________________
2
EXHIBIT A TO EXHIBIT E
LEGAL DESCRIPTION
PARCEL NO. 1:
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on said East right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
A.R.S.
PARCEL NO. 2:
A perpetual, non-exclusive right of way and Easement for drainage as set forth
in instrument recorded in Document No. 2001-292316.
PARCEL NO. 3
A perpetual, non-exclusive Easement for utility and access as set forth in
instrument recorded in Document No. 2001-921609.
PARCEL NO. 4:
Easements for parking, access, drainage, utilities and encroachments as set
forth in instruments recorded in Document No. 2001-790145 and in Document No.
2003-0366082.
2
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASE
KNOW ALL MEN BY THESE PRESENTS, that SCOTTSDALE XXXXXXXX PEAK, LLC, an
Arizona limited liability company (hereinafter referred to as the "Assignor"),
in consideration of the sum of Ten and No/100ths Dollars ($10.00) and other good
and valuable consideration received from or on behalf of ____________________,
a(n) ___________ (hereinafter referred to as the "Assignee"), the receipt and
sufficiency of which are hereby acknowledged, does hereby grant, bargain, sell,
assign, transfer and set over unto Assignee the lease, together with all
amendments, the letter agreement and the multiparty guaranty thereof
(collectively the "Lease"), wherein the Assignor's predecessor in interest, Opus
West Corporation, a Minnesota corporation ("Opus West") is the originally named
landlord, involving that certain property located in Maricopa County, Arizona,
which is more particularly described on EXHIBIT A attached hereto and made a
part hereof. The Lease has been delivered and assigned to the Assignee and is
more particularly described on EXHIBIT B attached hereto and made a part hereof.
Notwithstanding anything to the contrary, Assignor and Assignee hereby
acknowledge and agree that Opus West (i) retained those assets and rights
expressly set forth in SECTION 6.6 of that certain Purchase and Sale Agreement
dated August ____, 2004, executed by and between Assignor and Holualoa Arizona,
Inc. (if and as amended, the "Purchase Agreement"), and (ii) retained and shall
remain solely liable for those warranties, rights and obligations (collectively,
the "Unassigned Obligations") described in SECTION 6.7 of the Purchase
Agreement.
A portion of the consideration for this Assignment is that Assignee hereby
assumes and agrees to perform all of the landlord's obligations (other than the
Unassigned Obligations of Opus West) under the Lease from and after the date of
this Assignment (including, but not limited to, all obligations with respect to
advance rental, if any, paid pursuant to the Lease). Assignee hereby indemnifies
and agrees to hold harmless the Assignor of and from any and all claims, actions
and damages (including court costs and reasonable attorneys' fees) arising by
reason of any default or breach by Assignee of the obligations (other than the
Unassigned Obligations) so assumed subsequent to the date of this Assignment.
Conversely, Assignor hereby indemnifies and agrees to hold harmless the Assignee
of and from any and all claims, actions and damages (including court costs and
reasonable attorneys' fees) arising by reason of any default or breach by
Assignor of the obligations (other than the Unassigned Obligations) arising and
accruing prior to the date of this Assignment. With respect to the Unassigned
Obligations, Assignor hereby assigns to Assignee the benefit of (and hereby
grants to Assignee a power of attorney, coupled with an interest, to enforce in
the name of either the Assignee or the Assignor) the indemnity and hold harmless
provisions contained in that certain Assignment and Assumption of Lease dated
December 11, 2002, a copy of which is attached as EXHIBIT C hereto and made a
part hereof, the benefit of such indemnity and hold harmless provisions having
been assigned to Assignor by virtue of that certain other Assignment and
Assumption of Lease also dated December 11, 2002, a copy of which is attached as
EXHIBIT D hereto and made a part hereof.
This instrument may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, and such counterparts
together constitute one and the same instrument. Signature and acknowledgment
pages may be detached from the counterparts and attached to a single copy of
this document to physically form one document.
TO HAVE AND TO HOLD the same unto the Assignee, its legal representatives,
successors and assigns, forever.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
____ day of _________________, 2004.
ASSIGNOR:
SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona limited liability company
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ASSIGNEE:
____________________________________, a(n)
__________________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
2
EXHIBIT A TO EXHIBIT F
LEGAL DESCRIPTION
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on said East right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
A.R.S.
2
EXHIBIT B TO EXHIBIT F
TENANT LEASE
TENANT/DOCUMENT DOCUMENT DATE
1. THE REINALT-XXXXXX CORPORATION
(a) Bondable Net Lease Agreement 04/10/01
(b) First Amendment to Bondable Net Lease Agreement 09/28/01
(c) Memorandum of Lease 04/10/01
(d) Letter Agreement 08/21/02
(e) Multiparty Guaranty 09/__/02
(f) Second Amendment to Bondable Net Lease Agreement 10/21/02
(g) Assignment and Assumption of Lease (Opus to Stratford,
Auriga, Golden Gate and DRD Trust) 12/11/02
(h) Assignment and Assumption of Lease (Stratford, Auriga,
Golden Gate and DRD Trust to Scottsdale Xxxxxxxx Peak,
LLC) 12/11/02
EXHIBIT C TO EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASE
KNOW ALL MEN BY THESE PRESENTS, that OPUS WEST CORPORATION, a Minnesota
corporation (hereinafter referred to as the "Assignor"), in consideration of the
sum of Ten and No/100ths Dollars ($10.00) and other good and valuable
consideration received from or on behalf of STRATFORD AMERICAN CORPORATION, an
Arizona corporation, as to an undivided 80% interest, GOLDEN GATE APARTMENTS,
LTD., L.P., a California limited partnership, as to an undivided 13% interest,
XXXXXX X. XXXXXXX, as Family Trustee of The DRD-97 Trust under Agreement dated
August 8, 1997, as to an undivided 4% interest, and AURIGA PROPERTIES, INC., an
Arizona corporation, as to an undivided 3% interest (collectively, hereinafter
referred to as the "Assignee"), the receipt and sufficiency of which are hereby
acknowledged, does hereby grant, bargain, sell, assign, transfer and set over
unto Assignee the lease, together with all guaranties thereof and security
deposits relating thereto (the "Lease"), wherein the Assignor is the lessor,
involving that certain property located in Maricopa County, Arizona, which is
more particularly described on EXHIBIT A attached hereto and made a part hereof
by reference as if fully set forth herein. The Lease has been delivered and
assigned to the Assignee and is more particularly described on EXHIBIT B
attached hereto and made a part hereof by reference as if fully set forth
herein. Notwithstanding the foregoing, Assignor (i) retains those assets and
rights expressly set forth in Section 6.6 of that certain Purchase and Sale
Agreement dated July 17, 2002, as amended to date, executed by Assignor and
Assignee (as amended, the "Purchase Agreement"), and (ii) retains and shall
remain solely liable for those warranties, rights and obligations (collectively,
the "Unassigned Obligations") described in Section 6.7 of the Purchase
Agreement.
A portion of the consideration for this Assignment is that Assignee
hereby assumes and agrees to perform all of the obligations (other than the
Unassigned Obligations) of Assignor under the Lease from and after the date of
this Assignment (including, but not limited to, all obligations with respect to
security deposits or advance rental paid pursuant to the Lease). Assignee hereby
indemnifies and agrees to hold harmless Assignor of and from any and all claims,
actions and damages (including court costs and reasonable attorneys' fees)
arising by reason of any default or breach by Assignee of the obligations (other
than the Unassigned Obligations) so assumed subsequent to the date of this
Assignment. Conversely, Assignor hereby indemnifies and agrees to hold harmless
Assignee of and from any and all claims, actions and damages (including court
costs and reasonable attorneys' fees) arising by reason of any default or breach
by Assignor of the obligations imposed upon Assignor under the Lease arising and
accruing prior to the date of this Assignment, or arising by reason of any
default or breach by Assignor of the Unassigned Obligations.
This instrument may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, and such counterparts
together constitute one and the same instrument. Signature and acknowledgment
pages may be detached from the counterparts and attached to a single copy of
this document to physically form one document.
TO HAVE AND TO HOLD the same unto the Assignee, its legal
representatives, successors and assigns, forever.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the 11th day of December, 2002.
ASSIGNOR:
OPUS WEST CORPORATION,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
ASSIGNEE:
STRATFORD AMERICAN
CORPORATION, an Arizona
corporation
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name: Xxx X. Xxxxxx
Title: President
GOLDEN GATE APARTMENTS, LTD.,
L.P., a California limited partnership
By: /s/ Xxxxx X. Aries by
Xxxxx Xxxxxxxxx, his attorney in fact
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
XXXXXX X. XXXXXXX, as Family
Trustee of The DRD-97 Trust under
Agreement dated August 8, 1997
AURIGA PROPERTIES, INC., an
Arizona corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: V.P.
2
EXHIBIT A
LEGAL DESCRIPTION
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
Exhibit A
(Page 1 of 2)
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on a said easterly right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
ARS.
Exhibit A
(Page 2 of 2)
EXHIBIT B
TENANT LEASE
TENANT/DOCUMENT DOCUMENT DATE
1. THE REINALT-XXXXXX CORPORATION
(a) Bondable Net Lease Agreement 04/10/01
(b) First Amendment to Bondable Net
Lease Agreement 09/28/01
(c) Memorandum of Lease 04/10/01
(d) Letter Agreement 08/21/02
(e) Multiparty Guaranty 09/__/02
(f) Second Amendment to Bondable
Net Lease Agreement 10/21/02
Exhibit B
(Page 1 of 1)
EXHIBIT D TO EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASE
(Scottsdale Xxxxxxxx Peak, LLC)
KNOW ALL MEN BY THESE PRESENTS, that STRATFORD AMERICAN CORPORATION, an
Arizona corporation, as to an undivided 80% interest, GOLDEN GATE APARTMENTS,
LTD., L.P., a California limited partnership, as to an undivided 13% interest,
XXXXXX X. XXXXXXX, as Family Trustee of The DRD-97 Trust under Agreement dated
August 8, 1997, as to an undivided 4% interest, and AURIGA PROPERTIES, INC., an
Arizona corporation, as to an undivided 3% interest (hereinafter referred to as
the "Assignors"), in consideration of the sum of Ten and No/100ths Dollars
($10.00) and other good and valuable consideration received from or on behalf of
SCOTTSDALE XXXXXXXX PEAK, LLC, an Arizona limited liability company (hereinafter
referred to as the "Assignee"), the receipt and sufficiency of which are hereby
acknowledged, do hereby grant, bargain, sell, assign, transfer and set over unto
Assignee the lease, together with all guaranties thereof and security deposits
relating thereto (the "Lease"), wherein the Assignors' predecessor in interest,
Opus West Corporation, a Minnesota corporation ("Opus West") is the originally
named lessor, involving that certain property located in Maricopa County,
Arizona, which is more particularly described on EXHIBIT A attached hereto and
made a part hereof by reference as if fully set forth herein. The Lease has been
delivered and assigned to the Assignee and is more particularly described on
EXHIBIT B attached hereto and made a part hereof by reference as if fully set
forth herein. Notwithstanding the foregoing, Opus West (i) retained those assets
and rights expressly set forth in Section 6.6 of that certain Purchase and Sale
Agreement dated July 17, 2002, as amended to date, executed by and between Opus
West and Stratford American Corporation, an Arizona corporation (as amended, the
"Purchase Agreement"), and (ii) retained and shall remain solely liable for
those warranties, rights and obligations (collectively, the "Unassigned
Obligations") described in Section 6.7 of the Purchase Agreement.
A portion of the consideration for this Assignment is that Assignee hereby
assumes and agrees to perform all of the obligations (other than the Unassigned
Obligations) of the Assignors or Opus West under the Lease from and after the
date of this Assignment (including, but not limited to, all obligations with
respect to security deposits or advance rental paid pursuant to the Lease).
Assignee hereby indemnifies and agrees to hold harmless the Assignors and Opus
West of and from any and all claims, actions and damages (including court costs
and reasonable attorneys' fees) arising by reason of any default or breach by
Assignee of the obligations (other than the Unassigned Obligations) so assumed
subsequent to the date of this Assignment. Conversely, Assignors hereby assign
to Assignee the benefit of (and hereby grant to Assignee a power of attorney,
coupled with an interest, to enforce in the name of either the Assignee or the
Assignors) the indemnity and hold harmless provisions contained in that certain
Assignment and Assumption of Lease of even date herewith, whereby Opus West
indemnified and agreed to hold harmless the Assignors of and from any and all
claims, actions and damages (including court costs and reasonable attorneys'
fees) arising by reason of any default or breach by Opus West of the obligations
imposed upon Opus West under the Lease arising and accruing prior to the date of
this Assignment, or arising by reason of any default or breach by Opus West of
the Unassigned Obligations.
This instrument may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, and such counterparts
together constitute one and the same instrument. Signature and acknowledgment
pages may be detached from the counterparts and attached to a single copy of
this document to physically form one document.
TO HAVE AND TO HOLD the same unto the Assignee, its legal representatives,
successors and assigns, forever.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
11th day of December, 2002.
ASSIGNEE: ASSIGNORS:
SCOTTSDALE XXXXXXXX PEAK, LLC, STRATFORD AMERICAN
an Arizona limited liability company CORPORATION, an Arizona corporation
By: STRATFORD AMERICAN CORPORATION, By: /s/ Xxx X. Xxxxxx
an Arizona corporation, as Manager ----------------------------------
and Member Xxx X. Xxxxxx, President
By: /s/ Xxx X. Xxxxxx
----------------------------- GOLDEN GATE APARTMENTS, LTD.,
Xxx X. Xxxxxx, President L.P., a California limited partnership
By: /s/ Xxxxx X. Aries by
Xxxxx Xxxxxxxxx, his attorney
in fact
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: General Partner
AURIGA PROPERTIES, INC.,
an Arizona corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: V.P.
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
XXXXXX X. XXXXXXX, as Family Trustee
of The DRD-97 Trust under Agreement
dated August 8, 1997
2
EXHIBIT A
LEGAL DESCRIPTION
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
Exhibit A
(Page 1 of 2)
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on a said easterly right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
ARS.
Exhibit A
(Page 2 of 2)
EXHIBIT B
TENANT LEASE
TENANT/DOCUMENT DOCUMENT DATE
1. THE REINALT-XXXXXX CORPORATION
(a) Bondable Net Lease Agreement 04/10/01
(b) First Amendment to Bondable Net
Lease Agreement 09/28/01
(c) Memorandum of Lease 04/10/01
(d) Letter Agreement 08/21/02
(e) Multiparty Guaranty 09/__/02
(f) Second Amendment to Bondable
Net Lease Agreement 10/21/02
Exhibit B
(Page 1 of 1)
EXHIBIT G
BLANKET TRANSFER, ASSIGNMENT AND ASSUMPTION
THIS BLANKET TRANSFER, ASSIGNMENT AND ASSUMPTION (the "Assignment") is made
and entered into this ____ day of _________________,2004, by and between
SCOTTSDALE XXXXXXXX PEAK, LLC, an Arizona limited liability company (hereinafter
referred to as the "Assignor"), and ___________________________, a(n)
________________________ (hereinafter referred to as the "Assignee").
W I T N E S S E T H:
For and in consideration of the sum of Ten and No/100 Dollars ($10.00), the
conveyance by the Assignor to the Assignee of the improved real property located
in Maricopa County, Arizona, and more particularly described on EXHIBIT A
attached hereto and incorporated herein by reference (the "Property"), and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Assignor hereby transfers, grants, conveys and assigns to the
Assignee the following, to-wit:
1. All of the Assignor's right, title and interest in and to the existing
service contracts, if any, relating to the Property that are listed on EXHIBIT B
attached hereto and incorporated herein by reference (hereinafter referred to as
the "Contracts").
2. All of the Assignor's right, title and interest in and to any
assignable or otherwise transferable licenses, permits, certificates of
occupancy and other governmental approvals relating to the Property.
3. All of the Assignor's right, title and interest in and to any air
conditioners, furniture, fixtures, machinery, equipment, supplies, utility taps
and other personal property located at the Property and owned by Assignor, if
any (the "Personal Property").
4. A nonexclusive assignment of all of the Assignor's right, title and
interest in and to all unexpired warranties and guaranties given by third
parties unaffiliated with the Assignor to, assigned to or benefiting the
Assignor and relating to the Property and any Personal Property conveyed by
Assignor to Assignee in connection therewith regarding the acquisition,
construction, design, use, operation, management or maintenance of the Property
or Personal Property, to the extent that the same may exist and may be
assignable; provided, however, the Assignor shall and does hereby retain the
nonexclusive ownership of all such unexpired warranties and guaranties and shall
have the right to enforce same prior to the expiration thereof.
The Assignor has delivered to the Assignee a copy of the final plans and
specifications relating to the construction of the improvements on the Property
solely for the Assignee's use in connection with the ownership, operation and
maintenance of the Property. Neither the Assignee nor its successors or assigns
may use such final plans and specifications for any purpose other than that
described in the preceding sentence without the Assignor's prior written
consent, and the Assignee shall indemnify, defend, protect and hold harmless the
Assignor and its affiliates from any unauthorized use of such final plans and
specifications.
With respect to the Contracts assigned in paragraph 1 above, the Assignee
hereby assumes the Contracts and agrees to perform all of the obligations of the
Assignor arising under the Contracts on, from and after the date hereof, and the
Assignee hereby indemnifies and agrees to hold harmless the Assignor against and
from any and all claims, demands, actions, causes of action, losses, damages,
liabilities, costs or expenses (including, without limitation, reasonable
attorneys' fees) incurred as a consequence of any alleged default, breach, act
or occurrence brought against or suffered by the Assignor which occurs or may be
alleged to occur with respect to any default or breach under the Contracts by
the Assignee of the obligations so assumed subsequent to the date of this
Assignment. Conversely, the Assignor hereby indemnifies and agrees to hold
harmless the Assignee against and from any and all claims, demands, actions,
causes of action, losses, damages, liabilities, costs or expenses (including,
without limitation, reasonable attorneys' fees) incurred as a consequence of any
alleged default, breach, act or occurrence brought against or suffered by the
Assignee which occurs or may be alleged to occur with respect to any default or
breach under the Contracts by the Assignor arising prior to the date of this
Assignment.
This Assignment may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, and such counterparts
together constitute one and the same instrument. Signature and acknowledgment
pages may be detached from the counterparts and attached to a single copy of
this document to physically form one document.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
day and year first above written.
ASSIGNOR:
SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona limited liability company
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ASSIGNEE:
____________________________________, a(n)
__________________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
2
EXHIBIT A TO EXHIBIT G
LEGAL DESCRIPTION
PARCEL NO. 1:
That portion of Tract b, FIRST AMENDMENT TO STATE PLAT NO. 27 AMENDED, CORE
NORTH, according to Book 395 of Maps, page 21, records of Maricopa County,
Arizona, located in a portion of the Southwest quarter of Section 23, Township 4
North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, more particularly described as follows:
COMMENCING at the Northwest corner of said Tract b;
Thence North 89 degrees 58 minutes 25 seconds East, along the northerly line of
said Tract b, a distance of 65.00 feet to a point lying on the East right-of-way
line of Scottsdale Road as shown on MAP OF DEDICATION, XXXXXXXXXX XXXX XXX XXXX
XXXXXX XXXX, XXXXXXXX, according to Book 462 of Maps, page 50, records of
Maricopa County, Arizona;
Thence South 00 degrees 01 minutes 35 seconds East, leaving said northerly line
along said East right-of-way line, a distance of 846.11 feet to the TRUE POINT
OF BEGINNING;
Thence North 89 degrees 58 minutes 25 seconds East, leaving said East
right-of-way line, a distance of 95.10 feet;
Thence South 85 degrees 55 minutes 11 seconds East 69.81 feet;
Thence North 89 degrees 58 minutes 25 seconds East a distance of 18.52 feet to a
point lying on a curve concave southerly the radius of which bears South 80
degrees 34 minutes 53 seconds East a distance of 97.50 feet;
Thence easterly, along the arc of said curve through a central angle of 172
degrees 07 minutes 17 seconds a distance of 292.90 feet;
Thence South 88 degrees 27 minutes 36 seconds East, leaving said curve along a
radial line, a distance of 2.00 feet to a point lying on a curve concentric with
the last described curve and having a radius of 99.50 feet;
Thence southwesterly, along the arc of said curve through a central angle of 40
degrees 55 minutes 44 seconds a distance of 71.08 feet;
Thence South 47 degrees 31 minutes 52 seconds East, leaving said curve, a
distance of 73.98 feet;
Thence South 00 degrees 01 minutes 35 seconds East a distance of 478.15 feet to
a point lying on the North right-of-way line of Xxxxxxxx Peak Parkway as shown
on MAP OF XXXXXXXXXX, XXXXXXX 0, XXXXX 0, XXXXXXXX, according to Book 421 of
Maps, page 48, records of Maricopa County, Arizona;
Thence North 89 degrees 59 minutes 07 seconds West, along said North
right-of-way line, a distance of 207.28 feet;
Thence North 00 degrees 00 minutes 53 seconds East, continuing along said North
right-of-way line, a distance of 10.00 feet;
Thence North 89 degrees 59 minutes 07 seconds West, continuing along said North
right-of-way line, a distance of 180.08 feet to the beginning of a curve concave
northeasterly and having a radius of 20.00 feet;
Thence northwesterly, along the arc of said curve through a central angle of 89
degrees 57 minutes 33 seconds a distance of 31.40 feet to a point of tangency,
said point lying on said East right-of-way line of Scottsdale Road;
Thence North 00 degrees 01 minutes 35 seconds West, along said East right-of-way
line, a distance of 586.06 feet to the TRUE POINT OF BEGINNING.
EXCEPT all oil, gas, other hydrocarbon substances, helium or other substances of
a gaseous nature, coal, metals, minerals, fossils, fertilizer of every name and
description and except all uranium, thorium or any other material which is or
may be determined to be peculiarly essential to the production of fissionable
materials whether or not of commercial value, as set forth in Section 37-231,
A.R.S.
PARCEL NO. 2:
A perpetual, non-exclusive right of way and Easement for drainage as set forth
in instrument recorded in Document No. 2001-292316.
PARCEL NO. 3
A perpetual, non-exclusive Easement for utility and access as set forth in
instrument recorded in Document No. 2001-921609.
PARCEL NO. 4:
Easements for parking, access, drainage, utilities and encroachments as set
forth in instruments recorded in Document No. 2001-790145 and in Document No.
2003-0366082.
2
EXHIBIT B TO EXHIBIT G
[LIST OF CONTRACTS]
EXHIBIT H
NOTICE TO TENANT
[TENANT]
___________________________
___________________________
___________________________
RE: Change of Ownership of Discount Tire Office Building
Dear Reader:
Notice is hereby given that on _________________, 2004,
________________________ a(n) _________________________, became legal owner and
landlord under your lease ("Lease") of _____________________, located in
Scottsdale, Arizona. Effective ___________________, 2004, any and all payments
due under your Lease (including your next rental payment, if applicable) shall
be made payable to the following at the following address:
________________________________________
________________________________________
________________________________________
Any notices to landlord under your Lease are to be sent as follows:
________________________________________
________________________________________
________________________________________
Attn: __________________________________
With a copy to:
________________________________________
________________________________________
Attn: __________________________________
Telephone No. __________________________
Telecopy No. ___________________________
Thank you.
Very truly yours,
SCOTTSDALE XXXXXXXX PEAK, LLC,
an Arizona limited liability company
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ASSIGNEE:
____________________________________, a(n)
__________________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
2
