EXHIBIT 10.8
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 3rd day of November, 2005, by
and between NNN Oakey Building 2003, LLC, a Delaware limited liability company,
("Seller"), and Trans-Aero Land & Development Corporation and/or nominee
("Buyer"), with reference to the following facts:
A. Seller owns certain real property located in Xxxxx County, Nevada
and more specifically described in Exhibit A attached hereto (the
"Land"), commonly known as the Oakey Building and such other assets,
as the same are herein described.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Land and the associated assets.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements herein contained, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
1.1. The purchase and sale includes, and at Close of Escrow
(hereinafter defined) Seller shall sell, assign, grant and
transfer to Buyer, Seller's entire right and interest in and
to all of the following (hereinafter sometimes collectively,
the "Property"):
1.1.1. The Land, together with all structures, buildings,
improvements, machinery, fixtures, and equipment affixed or
attached to the Land and all easements and rights
appurtenant to the Land (all of the foregoing being
collectively referred to herein as the "Real Property");
1.1.2. The lease (the "Lease"), including any amendments, with the
tenant ("Tenant") leasing the Real Property as of the date
of this Agreement or hereafter entered into in accordance
with the terms hereof prior to Close of Escrow, together
with all security deposits, other deposits held in
connection with the Lease, lease guarantees and other
similar credit enhancements providing additional security
for the Lease;
1.1.3. All tangible and intangible personal property owned by
Seller located on or used in connection with the Real
Property, including, specifically, without limitation,
equipment, furniture, tools and supplies, and all related
intangibles including, without limitation,
Seller's interest, if any, in the name "Oakey Building"
(the "Personal Property");
1.1.4. All service contracts, agreements, warranties and
guaranties relating to the operation of the Property (the
"Contracts"); and
1.1.5. To the extent transferable, all building permits,
certificates of occupancy and other certificates, permits,
licenses and approvals relating to the Property (the
"Permits").
2. Purchase Price.
The total Purchase Price of the Property shall be TWENTY TWO MILLION TWO
HUNDRED FIFTY THOUSAND Dollars ($22,250,000.00) ("Purchase Price") payable
as follows:
2.1. Deposit/Further Payments/Down Payment.
2.1.1. Concurrent with Opening of Escrow (as hereinafter defined),
Buyer shall deposit into Escrow the amount of $250,000.00
(the "Deposit"), in the form of a wire transfer payable to
FIRST AMERICAN TITLE COMPANY AT 0000 XXXXXX XXXXXX XXXXXXX,
XXXXX 000, XXX XXXXX, XX 00000, ATTN: XXXXX XXXXXXXX
("Escrow Holder"). Escrow Holder shall place the Deposit
into an interest bearing money market account at a bank or
other financial institution reasonably satisfactory to
Buyer, and interest thereon shall be credited to Buyer's
account. On or before the end of the Inspection Period
(hereinafter defined), Buyer shall deposit and additional
$150,000.00 (the "Additional Deposit") into escrow which
shall become Buyer's notification signifying Buyer's
approval and acceptance of all Inspections (hereinafter
defined) and all Due Diligence Items (hereinafter defined)
provided from Seller to Buyer. Both the Deposit and the
Additional Deposit shall become non-refundable upon
expiration of the Inspection Period and applicable to the
Purchase Price.
2.1.2. On or before Close of Escrow, Buyer shall deposit into
Escrow the balance of the Purchase Price, by wire transfer
payable to Escrow Holder.
3. Title to Property.
3.1. Title Insurance.
Escrow Holder will obtain an extended coverage ALTA owner's
policy of title insurance (1970, Form B) from Commonwealth
Land Title (the "Title Company") with their standard
provisions and exceptions (the "Title
Policy") in the amount of the Purchase Price, together with
such endorsements as Buyer may reasonably require. The Title
Policy is to be free and clear of encumbrances except as
follows:
3.1.1. Real property taxes and assessments, which are a lien not
yet due; and
3.1.2. The permitted exceptions included in such policy and
approved by Buyer.
3.2. Procedure for Approval of Title.
During the Inspection Period (hereafter defined) Buyer shall
review the Title Documents (hereinafter defined) and the ALTA
survey by Xxxxx X. Xxxx, Xx. dated August 9, 2005(the
"Survey") of the Property which has been delivered by Seller.
If the Title Documents or Survey reflect or disclose any
defect, exception or other matter affecting the Property
("Title Defects") that is unacceptable to Buyer, then prior to
the expiration of the Inspection Period, Buyer shall provide
Seller with written notice of Buyer's objections. Seller may,
at its sole option, elect to cure or remove the objections
made by Buyer. Seller shall, in any event, and without the
necessity of an objection by Buyer, remove any encumbrance
securing financing. Should Seller elect to attempt to cure or
remove the objection, it shall be a condition precedent to
Buyer's obligation to acquire the Property that Seller cures
such title objection prior to the Close of Escrow. Unless
Seller provides written notice to Buyer before the expiration
of the Inspection Period that Seller intends to cure Buyer's
title objections, Seller shall be deemed to have elected not
to cure or remove Buyer's title objections, and Buyer shall be
entitled, as Buyer's sole and exclusive remedies, either to
(i) terminate this Agreement and obtain a refund of the
Deposit by providing written notice of termination to Seller
before the end of the Inspection Period and returning the Due
Diligence Items (hereinafter defined) to the extent delivered
to Buyer or (ii) waive the objections and close this
transaction as otherwise contemplated herein. If Buyer shall
fail to terminate this Agreement during the Inspection Period,
all matters shown on the Survey or described in the Title
Report, except for monetary liens for indebtedness of the
Seller and any matters the Seller has agreed to cure in
writing, and in fact cured to Buyer's satisfaction prior to
the Close of Escrow, shall be deemed "Permitted Exceptions."
4. Due Diligence Items.
4.1. Seller shall deliver to Buyer each of the following
(collectively, the "Due Diligence Items"):
4.1.1. See attached Exhibit B - Due Diligence Document List.
4.2. Estoppel Certificate.
As a condition precedent to Buyer's obligation to acquire the
Property, Seller shall obtain and deliver to Buyer an estoppel
certificate, from Tenant substantially in the form of Exhibit
A. The estoppel certificate shall be deemed to satisfy this
condition precedent if it is in the form of Exhibit A and does
not disclose material adverse matters. Buyer shall notify
Seller within three (3) business days of receipt of a copy of
the executed estoppel certificate of its approval or
disapproval and the basis of such disapproval, if disapproved.
If Buyer disapproves of the estoppel certificate because of a
material, adverse matter disclosed therein, and Seller is
unable to obtain a reasonably acceptable estoppel certificate
prior to the Close of Escrow, this Agreement shall terminate
at Buyer's option, Buyer shall be entitled to a refund of the
Deposit, and neither party shall have any further obligation
to the other except Buyer's indemnification obligations under
Paragraph 5.
5. Inspections.
Buyer, at its sole expense, shall have the right to conduct feasibility,
environmental, engineering and physical studies or other tests (the
"Inspections") of the Property at any time during the Inspection Period
(hereinafter defined). Buyer, and its duly authorized agents or
representatives, shall be permitted to enter upon the Property at all
reasonable times during the Inspection Period in order to conduct
engineering studies, soil tests and any other Inspections and/or tests
that Buyer may deem necessary or advisable. Buyer must arrange all
Inspections of the Property with Seller at least two (2) business days in
advance of any Inspections. In the event that the review and/or Inspection
conducted pursuant to this paragraph shows any fact, matter or condition
to exist with respect to the Property that is unacceptable to Buyer, in
Buyer's sole subjective discretion, then Buyer shall be entitled, as its
sole and exclusive remedy, to (i) terminate this Agreement and obtain a
refund of the Deposit, or (2) waive the objection, and close the
transaction as otherwise contemplated herein. Buyer agrees to promptly
discharge any liens that may be imposed against the Property as a result
of the Inspections and to defend, indemnify and hold Seller harmless from
all, claims, suits, losses, costs, expenses (including without limitation
court costs and attorneys' fees), liabilities, judgments and damages
incurred by Seller as a result of any negligent act or omission by Buyer
or its agents in connection with the Inspections.
5.1. Approval.
5.1.1. Buyer shall have ten (10) days after the receipt of all of
the items referenced in the attached Exhibit B, the due
diligence list ("Inspection Period") to approve or
disapprove the Inspections. If (i) the Buyer shall
disapprove the Inspections within the Inspection
Period, or (2) the Buyer fails to inform seller and escrow
holder of its approval prior to the end of the inspection
period. This Agreement and the Escrow shall thereupon be
terminated, Buyer shall not be entitled to purchase the
Property, Seller shall not be obligated to sell the
Property to Buyer and the parties shall be relieved of any
further obligation to each other with respect to the
Property, except as provided in Paragraph 5.
5.1.2. Notwithstanding anything to the contrary contained herein,
Buyer hereby agrees that, in the event this Agreement is
terminated for any reason, then Buyer shall promptly and at
its sole expense return to Seller all Due Diligence Items
which have been delivered by Seller to Buyer in connection
with the Inspections, along with copies of all reports,
drawings, plans, studies, summaries, surveys, maps and
other data prepared by third parties relating to the
Property, (a) subject to restrictions on Buyer's ability to
make any such materials available to Seller that are
imposed in any agreement with a third party consultant
preparing any such reports or materials ("Buyer's
Reports"), and (b) against payment by Seller of 50% of
Buyer's costs in obtaining the Buyer's Reports. Buyer shall
cooperate with Seller at no expense to Buyer in order to
obtain a waiver of any such limitations. Buyer makes no
representation as to the accuracy or completeness of any of
the Buyer's Reports.
5.1.3. Notwithstanding any contrary provision of this Agreement,
Buyer acknowledges that Seller is not representing or
warranting that any of the Due Diligence Items prepared by
third parties are accurate or complete, such as the Survey,
engineering reports and the like. Seller advises Buyer to
independently verify the facts and conclusions set forth
therein, provided however, Seller warrants that it has no
knowledge of any material errors or misstatements in such
information regarding the Property.
6. Escrow.
6.1. Opening.
Purchase and sale of the Property shall be consummated through
an escrow ("Escrow") to be opened with Escrow Holder within
two (2) business days after the execution of this Agreement by
Seller and Buyer. Escrow shall be deemed to be opened as of
the date fully executed copies (or counterparts) of this
Agreement are delivered to Escrow Holder by Buyer and Seller
("Opening of Escrow"). This Agreement shall be considered as
the Escrow instructions between the parties, with such further
instructions as Escrow Holder shall reasonably require in
order to clarify its duties and responsibilities. Such further
reasonable instructions shall be promptly signed by Buyer and
Seller and returned to
Escrow Holder within three (3) business days of receipt
thereof. In the event of any conflict between the terms and
conditions of this Agreement and such further instructions,
the terms and conditions of this Agreement shall control.
6.2. Close of Escrow.
6.2.1. Escrow shall close ("Close of Escrow") within three (3)
days following delivery to Buyer of a temporary certificate
of occupancy ("TCO") for the property and the Parking
Garage (hereinafter defined), but in no event before
November 30, 2005. Buyer shall have the option to extend
the closing date by two additional ten (10) day periods by
increasing the non-refundable deposit by an additional One
Hundred Thousand Dollars ($100,000) for each ten (10) day
period. Said deposit(s) and all earned interest shall be
applicable to the Purchase Price.
6.3. Buyer Required to Deliver.
Buyer shall deliver to Escrow the following:
6.3.1. Concurrently with the Opening of Escrow, the Deposit;
6.3.2. On or before Close of Escrow, the payment required by
Paragraph 2.1.2; provided, however that Buyer shall not be
required to deposit the amount specified in Paragraph 2.1.2
until Buyer has been notified by Escrow Holder that (i)
Seller has delivered to Escrow each of the documents and
instruments to be delivered by Seller in connection with
Buyer's purchase of the Property, (ii) Title Company has
committed to issue and deliver the Title Policy to Buyer
and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer;
6.3.3. On or before Close of Escrow, such other documents as Title
Company may require from Buyer in order to issue the Title
Policy;
6.3.4. Counterpart originals of the Assignment and Assumption
Agreement and Escrow Agreement referred to in Paragraph
6.4.
6.4. Seller Required to Deliver.
On or before Close of Escrow (or at such time prior to the
Close of Escrow as is specified below), Seller shall deliver
to Escrow (or directly to Buyer if specified below) the
following:
6.4.1. A duly executed and acknowledged grant, bargain and sale
deed, conveying fee title to the Property to Buyer (the
"Grant Deed");
6.4.2. An executed Certificate of Non-Foreign Status;
6.4.3. A xxxx of sale of the Personal Property, if any, without
warranty, in favor of Buyer and duly executed by Seller;
6.4.4. An original assignment and assumption agreement (the
"Assignment and Assumption Agreement") duly executed by
Seller assigning and conveying to Buyer all of Seller's
right, title and interest in and to the Lease and the
Contracts.
6.4.5. An original escrow agreement (the "Escrow Agreement") duly
executed by Seller and Escrow Holder, in the form of
Exhibit B, together with the deposit in the sum of
$1,745,629.00 which is required to be held in escrow by
Escrow Holder for the purposes described in the Escrow
Agreement;
6.4.6. Such other documents as Title Company may require from
Seller in order to issue the Title Policy;
6.4.7. Tenant estoppel certificates as required by Paragraph 4.2,
at least 15 days prior to the date then scheduled for the
Close of Escrow;
6.4.8. Seller shall deliver directly to Buyer all keys to all
buildings and other improvements located on the Property,
combinations to any safes thereon, and security devices
therein in Seller's possession;
6.4.9. Seller shall deliver all records and files relating to the
management or operation of the Property, including,
without limitation, all insurance policies, all security
contracts, all tenant files (including correspondence),
property tax bills, and all calculations used to prepare
statements of rental increases under the Lease and
statements of common area charges, insurance, property
taxes and other charges which are paid by Tenant; and
6.4.10. A certificate of Seller to the effect that all of the
representations and warranties of Seller set forth in this
Agreement are accurate as of the Close of Escrow. If, due
to a circumstance beyond the Seller's reasonable control,
the Seller is unable to deliver a certificate to the
effect that all of the representations and warranties of
Seller set forth in this Agreement are accurate as of the
Close of Escrow, this Agreement and the Escrow shall
thereupon be terminated, Buyer shall not be entitled to
purchase the Property, Seller shall not be obligated to
sell the Property to Buyer and the parties shall be
relieved of any further obligation to each other with
respect to the Property, except as provided in Paragraph
5.
6.5. Buyer's Costs.
Buyer shall pay the following:
6.5.1. One-half (1/2) of Escrow Holder's fees, costs and expenses
(other than those in connection with the Escrow Agreement);
6.5.2. 50% of the documentary transfer tax;
6.5.3. All other costs customarily borne by purchasers of real
property in Xxxxx County, Nevada;
6.5.4. The amount by which the premium for an extended coverage
policy of title insurance in the amount of the Purchase
Price exceeds the premium for a CLTA owner's title
insurance policy in the same amount.
6.6. Seller's Costs.
Seller shall pay the following:
6.6.1. One-half (1/2) of Escrow Holder's fees, costs and expenses
(other than those in connection with the Escrow Agreement);
6.6.2. The cost of recording the Grant Deed, including 50%
documentary transfer taxes;
6.6.3. The Title Company's premium for the Title Policy, to the
extent not paid by Buyer under Paragraph 6.5;
6.6.4. All of Escrow Holder's fees, costs and expenses in
connection with the Escrow Agreement;
6.6.5. All other costs customarily borne by sellers of real
property in Xxxxx County, Nevada.
6.7. Prorations.
6.7.1. Real property taxes, assessments, rents, security deposits,
and CAM expenses shall be prorated through Escrow between
Buyer and Seller as of Close of Escrow. Rents, security
deposits and CAM expenses shall be approved by Buyer prior
to Close of Escrow. Rents and other charges under the Lease
that are delinquent as of the Close of Escrow will not be
prorated, and rents and other amounts received by Buyer on
or after the Close of Escrow in respect of the Lease will
be applied in the following order: (i) to Buyer's actual
out-of-pocket costs of collection incurred with
respect to the collected amounts; (ii) to rents due under
the Lease for the month in which the payment is received by
Buyer; (iii) to rents attributable to any period after the
Close of Escrow that are past due on the date of receipt;
and (iv) to rents and other charges delinquent as of the
Close of Escrow (and Buyer promptly will remit these
amounts to the Seller). Buyer will use commercially
reasonable efforts to collect any delinquent rents,
provided that Buyer has no obligation to institute legal
proceedings, including an action for unlawful detainer,
against the Tenant. In no event will Seller commence or
maintain any action after the Close of Escrow against the
Tenant to collect any sums purportedly owed by the Tenant
to Seller. Tax and assessment prorations shall be based on
the latest available tax xxxx. If, after Close of Escrow,
Buyer receives any further or supplemental tax xxxx
relating to any period prior to Close of Escrow, or Seller
receives any further or supplemental tax xxxx relating to
any period after Close of Escrow, the recipient shall
promptly deliver a copy of such tax xxxx to the other
party, and not later than ten (10) days prior to the
delinquency date shown on such tax xxxx Buyer and Seller
shall deliver to the taxing authority their respective
shares of such tax xxxx, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with
respect to the Property transactions entered into prior to
execution of this Agreement shall be paid by Seller, and
Seller shall indemnify and hold Buyer harmless for Lease
commission claims brought against the Property arising
therefrom. All leasing commissions for new leases executed
after the date of this Agreement shall be prorated between
Buyer and Seller as their respective periods of ownership
bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and
from any and all liabilities, claims, demands, suits, and
judgments, of any kind or nature, including court costs and
reasonable attorneys' fees (except those items which under
the terms of this Agreement specifically become the
obligation of Buyer), brought by the Tenant or any other
third parties and based on events occurring on or before
the date of closing and which are in any way related to the
Property, and all expenses related thereto, including but
not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and
from any and all liabilities, claims, demands, suits and
judgments, of any kind or nature, including court costs and
reasonable attorneys' fees, brought by the Tenant or any
other third parties and based on events occurring
subsequent to the date of closing and which are in any way
related to the Property, and all expenses related thereto,
including, but not limited to, court costs and attorneys'
fees,
provided, that the foregoing indemnity shall not be
construed to limit the effect of, nor shall it be
applicable to the subject matter of, any of Seller's
representations and warranties expressed in this Agreement
or in the closing documents delivered by Seller.
6.8. Determination of Dates of Performance.
Promptly after delivery to Buyer of the Title Report, Escrow
Holder shall prepare and deliver to Buyer and Seller a
schedule which shall state each of the following dates:
6.8.1. The date of Opening of Escrow pursuant to Paragraph 6.1;
6.8.2. The date of receipt of the Title Report by Buyer;
6.8.3. The date by which title must be approved by Buyer pursuant
to Paragraph 3.2;
6.8.4. The date by which the Inspections must be approved by Buyer
pursuant to Paragraph 5.1.1;
6.8.5. The date by which the amounts described in Paragraph 2 must
be deposited by Buyer, for which determination Escrow
Holder shall assume satisfaction of the condition expressed
in Paragraph 2 on the last date stated for its
satisfaction; and
6.8.6. The date of Close of Escrow pursuant to Paragraph 6.2.
Unless promptly objected to in writing by Seller or Buyer, the
schedule delivered by Escrow Agent shall be binding on Buyer and
Seller. If any events which determine any of the aforesaid dates
occur on a date other than the date specified or assumed for its
occurrence in this Agreement, Escrow Holder shall promptly
redetermine as appropriate each of the dates of performance in the
aforesaid schedule and notify Buyer and Seller of the dates of
performance, as redetermined.
7. Representations, Warranties, and Covenants.
Seller hereby represents and warrants as of the date hereof to Buyer as
follows:
7.1. Seller is a limited liability company duly formed and validly
existing under the laws of the State of Delaware. Seller has
full power and authority to enter into this Agreement, to
perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance
of this Agreement and all documents contemplated hereby by
Seller have been duly and validly authorized by all necessary
action on the part of Seller and all required consents
and approvals have been duly obtained and will not result in a
breach of any of the terms or provisions of, or constitute a
default under any indenture, agreement or instrument to which
Seller is a party. This Agreement is a legal, valid and
binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of
creditors generally.
7.2. Seller has good and marketable title to the Property, subject
to the conditions of title. There are no outstanding rights of
first refusal, rights of reverter or option relating to the
Property or any interest therein. To Seller's knowledge, there
are no unrecorded or undisclosed documents or other matters
which affect title to the Property. Subject to the Lease,
Seller has enjoyed the continuous and uninterrupted quiet
possession, use and operation of the Property, without
material complaint or objection by any person.
7.3. Except as set forth in the Due Diligence Items, there are no
pending or, to the Manager's Knowledge (as defined below),
threatened actions, suits, arbitrations, claims, attachments,
proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization, or other proceedings
affecting or with respect to the Property, or by or against
Seller.
7.4. Except as set forth in the Due Diligence Items, Seller has
received no written notice from any governmental authority of
any material violation of any law, statute, ordinance,
regulation, or administrative or judicial order or holding,
whether or not appearing in public records, with respect to
the Property, which violation has not, to the Manager's
Knowledge, been corrected in accordance with the notice or
applicable law, statute, ordinance, regulation or order.
7.5. Except as set forth in the Due Diligence Items, Seller has
received no written notice from any governmental authority of
any condemnation proceeding relating to the Property.
7.6. Except as set forth in the Due Diligence Items, Seller has not
received written notice from any Governmental Authority that
(A) the Property is in violation of any federal, state and
local laws, ordinances, regulations, administrative and
judicial decrees, judgments, orders and directives applicable
to the Property with respect to hazardous or toxic substances,
industrial hygiene, the protection of human health, public or
worker safety, occupational health, wildlife or the
environment (collectively, "Environmental Laws"), which
violation has not, to the Manager's Knowledge, been corrected
in all material respects in accordance with the notice or
applicable law, statute,
ordinance, regulation, decree, judgment, directive or order,
or (B) past or current tenants of all or any portion of the
Property or any other person or entity have owned, used,
generated, produced, manufactured, treated, stored,
transported, handled, installed, released, discharged or
disposed of any substance that is designated, defined,
classified, or regulated as a hazardous substance, toxic
substance, hazardous waste, pollutant or contaminant
(including petroleum hydrocarbons, PCBs, asbestos, explosives,
corrosives, toxic materials, flammable materials, infectious
materials, radioactive materials, carcinogenic materials and
reproductive toxicants) on or beneath the Property or on or in
the air, surface or ground water associated with the Property
in violation of applicable Environmental Laws.
7.7. Other than the Lease, there are no leases, licenses or
occupancy agreements in effect at the Property. Neither Seller
nor the Tenant is in breach or default of any obligation under
the Lease and-Seller has not received notice from the Tenant
alleging that Seller is in breach or default of any obligation
under the Lease. Seller has delivered to Buyer an accurate and
complete copy of the Lease. All leasing commissions and fees,
and tenant improvement allowances due with respect to the
current term of the Lease have either been paid in full or, if
currently owed, will be satisfied before or at Closing. . No
brokerage commissions or fees, tenant improvement allowances,
free rent, or other concessions will become due in connection
with the exercise of any renewal or expansion option by the
Tenant under the terms of the Lease as of the date of the
execution of this Agreement.
7.8. True, correct, and complete copies of all documents in
Seller's possession or control, relating to the Property and
containing information material to its condition, usefulness,
or value, have been delivered by Seller to Buyer.
7.9. Seller is not a "foreign person" within the meaning of Section
1445(f) of the Internal Revenue Code of 1986, as amended (the
"Code").
7.10. Xxxxxxx Xxxxxxx is the asset manager of the Seller, and all
material circumstances relating to the Property would, in the
ordinary course of business of the Seller, come to his
attention.
7.11. Covenants of Seller. Seller hereby covenants as follows:
7.11.1. At all times from the date hereof through the date of
closing, Seller shall cause to be in force fire and
extended coverage insurance upon the Property, and public
liability insurance with respect to damage or injury to
persons or property occurring on the Property in at least
such amounts as are maintained by Seller on the date
hereof;
7.11.2. From the date of execution of this Agreement through the
date of closing, Seller will not enter into any new lease
with respect to the Property, without Buyer's prior
written consent, which shall not be unreasonably withheld.
Exercise by a Tenant of of a renewal option under an
existing Lease shall not be considered a new lease. Any
brokerage commission payable with respect to a new lease
shall be prorated between Buyer and Seller in accordance
with their respective periods of ownership as it bears to
the primary term of the new lease. Further, Seller will
not modify any existing Lease covering space in the
Property without first obtaining the written consent of
Buyer which shall not be unreasonably withheld. Buyer
shall have five (5) business days in which to approve or
disapprove of any new lease for which it has a right to
consent. Failure to respond in writing within said time
period shall be deemed to be consent;
7.11.3. From the date of execution of this Agreement through the
date of closing, Seller shall not sell, assign, or convey
any right, title or interest whatsoever in or to the
Property, or create or permit to attach any lien, security
interest, easement, encumbrance, charge, or condition
affecting the Property (other than the Permitted
Exceptions) without promptly discharging the same prior to
closing;
7.11.4. Seller shall not, without Buyer's written approval, (a)
amend or waive any right under any Service Contract, or
(b) enter into any agreement of any type affecting the
Property that would survive the Closing Date;
7.11.5. Seller shall fully and timely comply with all obligations
to be performed by it under the Lease, the Contracts, and
all permits, licenses, approvals and laws, regulations and
orders applicable to the Property; Seller shall use
commercially reasonable efforts to arrange for the
expeditious completion of construction of the parking
garage (the "Parking Garage") currently under construction
at the Property, in accordance with the plans and
specifications previously delivered to Buyer and in
compliance with all applicable building permits, legal
requirements, and requirements of the Lease, provided that
Seller is not limited to the original plans and
specifications of the Parking Garage so long as all change
orders are approved by Tenant (if approval is required by
the Lease) and all applicable regulatory entities, and all
material change orders are also approved by the Buyer, for
which purpose Seller will give notice to the Buyer. If,
after notification of a proposed material change order,
Buyer has not approved or disapproved the change order
within 10 days, the change order shall be deemed approved
by
Buyer). The Tenant has no right to approve or disapprove
of the construction of the Parking Garage. Seller shall
otherwise operate the Property in the same manner as
during Seller's ownership of the Property prior to the
execution of this Agreement.
7.12. Approval of Property. The consummation of the purchase and
sale of the Property pursuant to this Agreement shall be
deemed Buyer's acknowledgement that it has had an adequate
opportunity to make such legal, factual and other inspections,
inquiries and investigations as it deems necessary, desirable
or appropriate with respect to the Property. Such inspections,
inquiries and investigations of Buyer shall be deemed to
include, but shall not be limited to, any leases and contracts
pertaining to the Property, the physical components of all
portions of the Property, the physical condition of the
Property, such state of facts as an accurate survey,
environmental report and inspection would show, the present
and future zoning ordinance, ordinances, resolutions. Buyer
shall not be entitled to and shall not rely upon, Seller or
Seller's agents with regard to, and Seller will not make any
representation or warranty (except as expressly set forth in
this Agreement) with respect to: (i) the quality, nature,
adequacy or physical condition of the Property including, but
not limited to, the structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities, or the
electrical, mechanical, HVAC, plumbing, sewage or utility
systems, facilities, or appliances at the Property, if any;
(ii) the quality, nature, adequacy or physical condition of
soils or the existence of ground water at the Property; (iii)
the existence, quality, nature, adequacy or physical condition
of any utilities serving the Property; (iv) the development
potential of the Property, its habitability, merchantability,
or the fitness, suitability, or adequacy of the Property for
any particular purpose; (v) the zoning or other legal status
of the Property; (vi) the Property or its operations'
compliance with any applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions or restrictions of
any governmental or quasi-governmental entity or of any other
person or entity; (vii) the quality of any labor or materials
relating in any way to the Property; or (viii) the condition
of title to the Property or the nature, status and extent of
any right-of-way, lease, right of redemption, possession,
lien, encumbrance, license, reservation, covenant, condition,
restriction, or any other matter affecting the Property except
as expressly set forth in this Agreement. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT AND THE CLOSING DOCUMENTS, SELLER
HAS NOT, DOES NOT, AND WILL NOT MAKE ANY WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE PROPERTY AND SELLER
SPECIFICALLY DISCLAIMS ANY OTHER IMPLIED WARRANTIES OR
WARRANTIES ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO
WAY LIMITED TO, ANY WARRANTY OF CONDITION,
MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE OR USE. FURTHERMORE, SELLER HAS NOT, DOES NOT, AND
WILL NOT MAKE ANY REPRESENTATION OR WARRANTY WITH REGARD TO
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION, OR
LAND USE LAWS, RULES, REGULATIONS, ORDERS, OR REQUIREMENTS
INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO THE
HANDLING, GENERATING, TREATING, STORING OR DISPOSING OF ANY
HAZARDOUS WASTE OR SUBSTANCE INCLUDING, WITHOUT LIMITATION,
ASBESTOS, PCB AND RADON. BUYER ACKNOWLEDGES THAT BUYER IS A
SOPHISTICATED BUYER FAMILIAR WITH THIS TYPE OF PROPERTY AND
THAT, SUBJECT ONLY TO THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT AND CLOSING DOCUMENTS, BUYER WILL BE ACQUIRING THE
PROPERTY "AS IS AND WHERE IS, WITH ALL FAULTS," IN ITS PRESENT
STATE AND CONDITION, SUBJECT ONLY TO NORMAL WEAR AND TEAR AND
BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS AND
CONDITIONS MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS
AND INVESTIGATIONS. BUYER SHALL ALSO ACKNOWLEDGE AND AGREE
THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY
SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING, AND
NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. SELLER
SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING
TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE
SPECIFICALLY SET FORTH OR REFERRED TO IN THIS AGREEMENT.
7.13. As used in this Section 7, the term "Manager's Knowledge"
shall mean the actual knowledge of Xxxxxxx Xxxxxxx, without
any duty of investigation.
8. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
8.1. The execution, delivery and performance of this Agreement and
all documents contemplated hereby by Buyer will not result in
a breach of
any of the terms or provisions of, or constitute a default
under any indenture, agreement or instrument to which Buyer is
a party. This Agreement is a legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance
with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of
creditors generally.
9. Conditions Precedent to Closing.
The obligations of Buyer pursuant to this Agreement shall, at the option
of Buyer, be subject to the following conditions precedent:
9.1. All of the representations, warranties and agreements of
Seller set forth in this Agreement shall be true and correct
in all material respects as of the date hereof and as of the
Closing Date, and Seller shall not have on or prior to
closing, failed to meet, comply with or perform in any
material respect any conditions or agreements on Seller's part
as required by the terms of this Agreement. If, due to a
circumstance beyond the Seller's reasonable control, this
condition cannot be met by the Seller, this Agreement and the
Escrow shall thereupon be terminated, Buyer shall not be
entitled to purchase the Property, Seller shall not be
obligated to sell the Property to Buyer and the parties shall
be relieved of any further obligation to each other with
respect to the Property, except as provided in Paragraph 5.
9.2. There shall be no change in the matters reflected in the Title
Report, and there shall not exist any encumbrance or title
defect affecting the Property not described in the Title
Report except for the Permitted Exceptions or matters to be
satisfied at closing.
9.3. Effective as of closing, the management agreement affecting
the Property shall be terminated by Seller and any and all
termination fees incurred as a result thereof shall be the
sole obligation of Seller.
9.4. Seller shall have completed the construction of the Parking
Garage, in accordance with the plans and specifications
previously delivered to Buyer and in compliance with all
applicable building permits, legal requirements, and
requirements of the Lease. Seller shall have paid all of the
costs of the construction of the Parking Garage and shall have
provided Buyer and the Title Company with such lien waivers
and other evidence of the payment as they may reasonably
require.
9.5. If any such condition is not fully satisfied by closing, Buyer
shall so notify Seller and may terminate this Agreement by
written notice to Seller whereupon this Agreement may be
canceled, upon return of the Due Diligence Items the Deposit
shall be paid to Buyer and, thereafter,
neither Seller nor Buyer shall have any continuing obligations
hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the
conditions precedent set forth in this paragraph, Seller may,
within five (5) days of receipt of Buyer's Notices agree to
satisfy the condition by written notice to Buyer, and Buyer
shall thereupon be obligated to close the transaction provided
Seller so satisfies such condition. If Seller fails to agree
to cure or fails to cure such condition by the Closing Date,
this Agreement shall be canceled and the Deposit shall be
returned to Buyer and neither party shall have any further
liability hereunder.
10. Damage or Destruction Prior to Close of Escrow.
In the event that the Property should be damaged by any casualty prior to
the Close of Escrow, then if the cost of repairing such damage, as
estimated by an architect or contractor retained pursuant to the mutual
agreement of the parties, is:
10.1. Less than Two Hundred Fifty Thousand Dollars ($250,000), the
Close of Escrow shall proceed as scheduled, any insurance
proceeds shall be distributed to Buyer to the extent not
expended by Seller for restoration, and Buyer shall be
credited against the Purchase Price with the amount of any
deductible under Seller's insurance policies covering the
loss;
or if said cost is:
10.2. Greater than Two Hundred Fifty Thousand Dollars ($250,000),
then either Buyer may elect to terminate this Agreement, in
which case upon return of the Due Diligence Items the Deposit
shall be returned to Buyer and neither party shall have any
further obligation to the other except for Buyer's
indemnification obligations under Paragraph 5. If Buyer does
not elect to terminate this Agreement under the terms of this
Paragraph 10.2, the Close of Escrow shall proceed as
scheduled, any insurance proceeds shall be distributed to
Buyer to the extent not expended by Seller for restoration,
and Buyer shall be credited against the Purchase Price with
the amount of any deductible under Seller's insurance policies
covering the loss.
11. Eminent Domain.
11.1. If, before the Close of Escrow, proceedings are commenced for
the taking by exercise of the power of eminent domain of all
or a material part of the Property which, as reasonably
determined by Buyer, would render the Property unacceptable to
Buyer or unsuitable for Buyer's intended use, Buyer shall have
the right, by giving notice to Seller
within thirty (30) days after Seller gives notice of the
commencement of such proceedings to Buyer, to terminate this
Agreement, in which event this Agreement shall terminate, the
Deposit shall be returned to Buyer and neither party shall
have any further obligation to the other except for Buyer's
indemnification under Paragraph 5. If, before the Close of
Escrow, proceedings are commenced for the taking by exercise
of the power of eminent domain of less than such a material
part of the Property, or if Buyer has the right to terminate
this Agreement pursuant to the preceding sentence but Buyer
does not exercise such right, then this Agreement shall remain
in full force and effect and, at the Close of Escrow, the
condemnation award (or, if not therefore received, the right
to receive such portion of the award) payable on account of
the taking shall be transferred in the same manner as title to
the Property is conveyed. Seller shall give notice to Buyer
within three (3) business days after Seller's receiving notice
of the commencement of any proceedings for the taking by
exercise of the power of eminent domain of all or any part of
the Property.
12. Notices.
12.1. All notices, demands, or other communications of any type
given by any party hereunder, whether required by this
Agreement or in any way related to the transaction contracted
for herein, shall be void and of no effect unless given in
accordance with the provisions of this Paragraph. All notices
shall be in writing and delivered to the person to whom the
notice is directed, either in person, by United States Mail,
as a registered or certified item, return receipt requested by
telecopy or by Federal Express. Notices delivered by mail
shall be deemed given when received. Notices by telecopy or
Federal Express shall be deemed received on the business day
following transmission. Notices shall be given to the
following addresses:
Seller: Xxxxxxx Xxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxx. #000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: Xxxxx Xxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx
The Federal Reserve Bank Building, 16th Fl
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
Buyer: Trans-Aero Land & Development Corp.
0000 Xxxxxxx Xxx., Xxxxx 00
Xxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: Xxxxx Xxxxxxxxx
XxXxxxxx Carano Wilson
0000 X. Xxxxxx Xxx., Xxxxx 0000
Xxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
13. Remedies.
13.1. Defaults by Seller. If there is any default by Seller under
this Agreement, following notice to Seller and seven (7) days,
during which period Seller may cure the default, Buyer may, at
its option, (a) declare this Agreement terminated in which
case the Deposit shall be returned to Buyer or (b) treat this
Agreement as being in full force and effect and bring an
action against Seller for specific performance.
13.2. Defaults by Buyer. If there is any default by Buyer under this
Agreement, following notice to Buyer and seven (7) days,
during which period Buyer may cure the default, then Seller
may, as its sole remedy, declare this Agreement terminated, in
which case the Deposit shall be paid to Seller as liquidated
damages and each party shall thereupon be relieved of all
further obligations and liabilities, except any which
expressly survive termination. In the event this Agreement is
terminated due to the default of Buyer hereunder, Buyer shall
deliver to Seller, at no cost to Seller, the Due Diligence
Items and all of Buyer's Reports.
13.3. ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE,
WHETHER SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD,
MISREPRESENTATION OR OTHER LEGAL THEORY, RELATED DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, WHENEVER BROUGHT AND WHETHER
BETWEEN THE PARTIES TO THIS AGREEMENT OR BETWEEN ONE OF THE
PARTIES TO THIS AGREEMENT AND THE EMPLOYEES, AGENTS OR
AFFILIATED BUSINESSES OF THE OTHER PARTY, SHALL BE RESOLVED BY
ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL
ARBITRATION ACT, 9 U.S.C. SECTIONS 1-15, NOT STATE LAW, SHALL
GOVERN THE ARBITRABILITY OF ALL CLAIMS, AND THE DECISION OF
THE ARBITRATOR AS TO ARBITRABILITY SHALL BE FINAL.
A SINGLE ARBITRATOR WHO IS A RETIRED FEDERAL OR CALIFORNIA
JUDGE SHALL CONDUCT THE ARBITRATION UNDER THE THEN CURRENT
RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). THE
ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT ON THE
ARBITRATOR WITHIN THIRTY (30) DAYS OF WRITTEN NOTICE BY ONE
PARTY TO THE OTHER INVOKING THIS ARBITRATION PROVISION, IN
ACCORDANCE WITH AAA PROCEDURES FROM A LIST OF QUALIFIED PEOPLE
MAINTAINED BY THE AAA. THE ARBITRATION SHALL BE CONDUCTED IN
SANTA ANA, CALIFORNIA AND ALL EXPEDITED PROCEDURES PRESCRIBED
BY THE AAA RULES SHALL APPLY.
THERE SHALL BE NO DISCOVERY OTHER THAN THE EXCHANGE OF
INFORMATION WHICH IS PROVIDED TO THE ARBITRATOR BY THE
PARTIES. THE ARBITRATOR SHALL HAVE AUTHORITY ONLY TO GRANT
SPECIFIC PERFORMANCE AND TO ORDER OTHER EQUITABLE RELIEF AND
TO AWARD COMPENSATORY DAMAGES, BUT SHALL NOT HAVE THE
AUTHORITY TO AWARD PUNITIVE DAMAGES OR OTHER NONCOMPENSATORY
DAMAGES OR ANY OTHER FORM OF RELIEF. THE ARBITRATOR SHALL
AWARD TO THE PREVAILING PARTY ITS REASONABLE ATTORNEYS' FEES
AND COSTS AND OTHER EXPENSES INCURRED IN THE ARBITRATION,
EXCEPT THE PARTIES SHALL SHARE EQUALLY THE FEES AND EXPENSES
OF THE ARBITRATOR. THE ARBITRATOR'S DECISION AND AWARD SHALL
BE FINAL AND BINDING, AND JUDGMENT ON THE AWARD RENDERED BY
THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF. IN THE EVENT OF ANY DISPUTE SUBJECT TO ARBITRATION
UNDER THE TERMS OF THIS AGREEMENT, IF OCCURRING PRIOR TO THE
CLOSE OF ESCROW, BUYER SHALL BE ENTITLED TO RECORD A NOTICE OF
THE PENDENCY OF THE ARBITRATION IN THE REAL ESTATE RECORDS OF
XXXXX COUNTY NEVADA.
14. Assignment.
Buyer may assign its rights under this Agreement to an entity in which
Buyer has a significant interest.
15. Interpretation and Applicable Law.
This Agreement shall be construed and interpreted in accordance with the
laws of the state in which the Property is located (the "State"). Where
required for proper interpretation, words in the singular shall include
the plural; the masculine gender shall include the neuter and the
feminine, and vice versa. The terms "successors and assigns" shall include
the heirs, administrators, executors, successors, and assigns, as
applicable, of any party hereto.
16. Amendment.
This Agreement may not be modified or amended, except by an agreement in
writing signed by the parties. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder,
but any such waiver shall be effective only if in writing and signed by
the party waiving such conditions and obligations.
17. Attorney's Fees.
In the event it becomes necessary for either party to file a suit or
arbitration to enforce this Agreement or any provisions contained herein,
the prevailing party shall be entitled to recover, in addition to all
other remedies or damages, reasonable attorneys' fees and costs of court
incurred in such suit or arbitration.
18. Entire Agreement; Survival.
This Agreement (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith. No
representation, warranty, covenant, agreement, or condition not expressed
in this Agreement shall be binding upon the parties hereto nor affect or
be effective to interpret, change, or restrict the provisions of this
Agreement. The obligations of the parties hereunder and all other
provisions of this Agreement shall survive the closing or earlier
termination of this Agreement, except as expressly limited herein.
19. Multiple Originals only; Counterparts.
Numerous agreements may be executed by the parties hereto. Each such
executed copy shall have the full force and effect of an original executed
instrument. This Agreement may be executed in any number of counterparts,
all of which when taken together shall constitute the entire agreement of
the parties.
20. Acceptance.
Time is of the essence of this Agreement. The date of execution of this
Agreement by Seller shall be the date of execution of this Agreement. If
the final date of any period falls upon a Saturday, Sunday, or legal
holiday under Federal law, the laws of the State or the laws of the State
of California if it is not the State, then in such event the expiration
date of such period shall be extended to the next day which is not a
Saturday, Sunday, or legal holiday under Federal law, the laws of the
State or the State of California if it is not the State.
21. Real Estate Commission.
Seller and Buyer each represent and warrant to the other that neither
Seller nor Buyer has contracted or entered into any agreement with any
real estate broker, agent, finder or any other party in connection with
this transaction, and that neither party has taken any action which would
result in any real estate broker's, finder's or other fees or commissions
being due and payable to any party with respect to the transaction
contemplated hereby, except that Seller has contracted with (a) Xxxxx &
Xxxxx as its broker, (b) Triple Net Properties Realty, Inc., and (c)
Realty Executives of NV, "Buyers Broker" (who shall receive a commission
of one percent (1%)) and Seller will pay any commission due to said
brokers. Each party hereby indemnifies and agrees to hold the other party
harmless from any loss, liability, damage, cost, or expense (including
reasonable attorneys' fees) resulting to the other party by reason of a
breach of the representation and warranty made by such party in this
paragraph.
22. Exchange.
Seller reserves the right to structure the sale of the Property as a like
kind exchange pursuant to Section 1031 of the Code. In such event Seller
shall have the right to assign its interest in this Agreement to a
qualified exchange intermediary of its choosing to effect such exchange.
Buyer shall sign a customary assignment and/or notice of assignment,
however, such assignment shall at no cost or expense to Buyer and shall
not otherwise affect the terms of this Agreement. Buyer may acquire the
Property as part of a like kind exchange pursuant to Section 1031 of the
Code. In such event Seller shall accommodate the documentation for Buyer's
like kind exchange, provide that such accommodation shall be at no cost or
expense to Seller and shall not otherwise affect the terms of this
Agreement.
23. Confidentiality.
Buyer agrees that, prior to the closing, all Property information received
by Buyer shall be kept confidential as provided in this paragraph. Without
the prior written consent of Seller, prior to the closing, the Property
information shall not be disclosed by Buyer or its representatives, in any
manner whatsoever, in whole or in part, except (1) to Buyer's
representatives, lenders or investors who need to know the Property
information for the purpose of evaluating the Property and who are
informed by the Buyer of the confidential nature of the Property
information; (2) as may be necessary for Buyer or Buyer's representatives,
lenders or investors to comply with applicable laws, including, without
limitation, governmental, regulatory, disclosure, tax and reporting
requirements; to comply with other requirements and requests of regulatory
and supervisory authorities and self-regulatory organizations having
jurisdiction over Buyer or Buyer's representatives; to comply with
regulatory or judicial processes; or to satisfy reporting procedures and
inquiries of credit rating agencies in accordance with customary practices
of Buyer or its affiliates; and (3) to prospective tenants of the
Property.
24. Approval.
Seller's obligation to sell the Property is subject to the condition
precedent that approval of the sale is obtained from all entities
comprising Seller no later than fifteen business days after full execution
of this Agreement, provided that, if such approvals are not obtained,
Buyer shall not be required to buy the property, all Buyer's deposit(s)
shall be returned to buyer, and Seller shall reimburse Buyer for the
actual out-of-pocket costs incurred by the Buyer in conducting its due
diligence investigation of the Property and the fees and expenses of
Buyer's counsel in reviewing and negotiating this Agreement and related
documentation, to a maximum of $25,000
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR
The Oakey Building
0000 Xxxx Xxxxx Xxxxxxxx
Xxx Xxxxx, XX
EXECUTED on this the 31st day of Oct, 2005.
SELLER:
NNN Oakey Building 2003, LLC, a Delaware limited liability company
By: Triple Net Properties, LLC, a Virginia limited
liability company
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
EXECUTED on this the 4th day of November, 2005.
BUYER:
Trans-Aero Land & Development Company,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx, President
EXHIBIT A
Legal Description of the Property
That portion of the Southwest Quarter (SW 1/4) of the Northwest Quarter (NW 1/4)
of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., described as
follow:
Lot three (3) of that certain Parcel Map in File 52 of Parcel Maps, Page 20 in
the Office of the County Recorder of Xxxxx County, Nevada and recorded March 18,
1987 in Book 870318 as Document No. 00702, and by Certificate of Amendment
recorded January 25, 1989 in Book 890125 as Instrument No. 00179 of Official
Records of Xxxxx County, Nevada.
Delivery
Comment Date Item
1 Oct. 20, 2005 The lease, and any amendments and modifications.
2 Oct. 20, 2005 All correspondence between City of Las Vegas, the Tenant and Landlord or
correspondence material to the operation and management of the building
3 Oct. 20, 2005 All service contracts, vendor or maintenance agreements in effect or in
negotiation
4 Oct. 20, 2005 Any third party management agreement
5 Oct. 20, 2005 Utility bills for the past twelve months
6 Oct. 20, 2005 Property tax bills for the past two tax years
7 Oct. 20, 2005 All structural, mechanical and tenant improvement plans for the
improvements
8 Oct. 20, 2005 Declarations pages for current insurance coverages
9 Intentionally deleted
10 Oct. 20, 2005 Year-to-date and prior year income and expense statements for the property
11 Dated 8/09/2005 Oct. 20, 2005 ALTA survey, if available
12 None N/A Environmental assessment reports, if available
13 None N/A Appraisal reports, if available
14 None N/A Property condition report, if available
15 None N/A MEP (mechanical, engineering and plumbing) report, if available
16 None N/A Seismic or PML report, if available
17 None N/A Any warranties in effect for roof, HVAC, elevator, or other building
components
18 None N/A Documents relating to any pending litigation or insurance or other claims
effecting the property, together with a three-year claim and loss history for the property
19 None N/A Any agreement or lease regarding the operation of the parking structure
20 1 TCO (0xx Xxxxx) Oct. 20, 2005 Temporary and final certificates of occupancy currently in Seller's
possession.
21 Oct. 20, 2005 Building permits and any other permits or licenses held in connection with
the property
22 Oct. 20, 2005 Any interior, exterior or aerial building photographs, if available
23 None N/A Any other reports relevant to the property
RENT LEASE INCOME YEAR ONE
WORKSHEET NAME SUITE SQFT AUG-05 SEP-05 OCT-05 NOV-05 DEC-05 JAN-06 FEB-06 MAR-06 APR-06
First Floor 100 16,836 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
First Floor CA 100 8,126 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 787.64 787.64 787.64 787.64 787.64 787.54 787.64 787.64 787.64
Second Floor (3) 200 6,632 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00 0.00 0.00 0.00 000 0.00
Xxxxx Xxxxx 000 9,574 0.00 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56
Third Floor (2) 300 7,820 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (3) 300 3,765 0.00 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10
Third Floor (4) 300 4,052 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
98,160 787.64 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30
RENT LEASE INCOME YEAR ONE
WORKSHEET NAME SUITE SQFT MAY-06 JUN-06 JUL-06
First Floor 100 16,836 0.00 0.00 0.00
Xxxxx Xxxxx XX 000 8,126 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00
Second Floor (2) 200 406 787.64 787.64 787.64
Second Floor (3) 200 6,632 0.00 0.00 0.00
Second Floor (4) 200 3,702 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 18,573.56 18,573.56 18,573.56
Third Floor (2) 300 7,820 0.00 0.00 0.00
Third Floor (3) 300 3,765 7,304.10 7,304.10 7,304.10
Third Floor (4) 300 4,052 0.00 0.00 0.00
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00
98,160 26,665.30 26,665.30 26,665.30
RENT GUARANTY RENT GUARANTY YEAR ONE
WORKSHEET NAME SUITE SQFT DEC-05 JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
First Floor 100 16,836 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40
Xxxxx Xxxxx XX 000 8,126 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80
Second Floor (4) 200 3,702 7,033.80 7,033.80 7,033.80 7.033.80 7,033.80 7,033.80 7,033.80 7,033.80
Second Floor (5) 200 9,655 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80
Xxxxxx Xxxxx 000 25,333 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70
98,160 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57
RENT GUARANTY RENT GUARANTY YEAR TWO
WORKSHEET NAME SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06
First Floor 100 16,836 34,463.29 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0,00
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8.294.44
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 000
98,160 72,340.97 72,340.97 72,340.97 72,340.97
TOTAL RENT GUARANTY:
RENT LEASE INCOME YEAR TWO
WORKSHEET NAME SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 JAN-07 FEB-07 MAR-07
First Floor 100 16,836 0.00 0.00 0.00 0.00 0.00 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 831.08 831.08 831.08 831.08 831.08 831.08 831.08 831.08
Second Floor (3) 200 6,632 0.00 0.00 0.00 0.00 0.00 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99
Second Floor (5) 200 9,655 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79
Xxxxx Xxxxx 000 9,574 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98
Third Floor (2) 300 7,820 0.00 0.00 0.00 0.00 0.00 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96
Third Floor (4) 300 4,052 0.00 0.00 0.00 0.00 0.00 8,294.44 8,294,44 8,294.44
Xxxxxx Xxxxx 000 25,333 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65
98,160 128,592.54 128,592,54 128,592.54 128,592.54 128,592.54 200,933.52 200,933.52 200,933.52
RENT LEASE INCOME YEAR TWO
WORKSHEET NAME SUITE SQFT APR-07 MAY-07 JUN-07 JUL-07
First Floor 100 16,836 34,463.29 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 16,633.92 16,633.92 16,633.92 16,633.92
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 831.08 831.08 831.08 831.08
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 7,577.99 7,577.99 7,577.99 7,577.99
Second Floor (5) 200 9,655 19,763.79 19,763.79 19,763.79 19,763.79
Xxxxx Xxxxx 000 9,574 19,597.98 19,597.98 19,597.98 19,597.98
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 7,706.96 7,706.96 7,706.96 7,706.96
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8,294.44
Xxxxxx Xxxxx 000 25,333 51,856.65 51,856.65 51,856.65 51,856.65
98,160 200,933.52 200,933.52 200,933.52 200,933.52
TOTAL ANNUAL RENT 2,049,497.34
RENT GUARANTY
WORKSHEET NAME SUITE SQFT DEC-06 JAN-07 FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07 AUG-07 SEP-07 OCT-07 NOV-07
First Floor 100 16,836 34,463.29
First Floor CA 100 8,126 0.00
Second Floor 200 2,259 0.00
Second Floor (2) 200 406 0.00
Second Floor (3) 200 6,632 13,575.70
Second Floor (4) 200 3,702 0.00
Second Floor (5) 200 9,655 0.00
Third Floor 300 9,574 0.00
Third Floor (2) 300 7,820 16,007.54
Third Floor (3) 300 3,765 0.00
Third Floor (4) 300 4,052 8,294.44
Xxxxxx Xxxxx 000 25,333 0.00
98,160 72,340.97
1,745,629
RENT YEAR THREE
WORKSHEET NAME SUITE SQFT AUG-07 SEP-07 OCT-07 NOV-07 DEC-07 JAN-08 FEB-08 MAR-08
First Floor 100 16,836 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19
Xxxxx Xxxxx XX 000 8,126 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94
Xxxxxx Xxxxx 000 2,259 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90
Second Floor (2) 200 406 856.01 856.01 856.01 856.01 856.01 856.01 856.01 856.01
Second Floor (3) 200 6,632 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98
Second Floor (4) 200 3,702 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33
Second Floor (5) 200 9,655 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70
Xxxxx Xxxxx 000 9,574 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92
Third Floor (2) 300 7,820 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77
Third Floor (3) 300 3,765 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16
Third Floor (4) 300 4,052 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28
Xxxxxx Xxxxx 000 25,333 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35
98,160 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53
RENT YEAR THREE
WORKSHEET NAME SUITE SQFT APR-08 MAY-08 JUN-08 JUL-08
First Floor 100 16,836 35,497.19 35,497.19 35,497.19 35,497.19
Xxxxx Xxxxx XX 000 8,126 17,132.94 17,132.94 17,132.94 17,132.94
Xxxxxx Xxxxx 000 2,259 4,762.90 4,762.90 4,762.90 4,762.90
Second Floor (2) 200 406 856.01 856.01 856.01 856.01
Second Floor (3) 200 6,632 13,982.98 13,982.98 13,982.98 13,982.98
Second Floor (4) 200 3,702 7,805.33 7,805.33 7,805.33 7,805.33
Second Floor (5) 200 9,655 20,356.70 20,356.70 20,356.70 20,356.70
Xxxxx Xxxxx 000 9,574 20,185.92 20,185.92 20,185.92 20,185.92
Third Floor (2) 300 7,820 16,487.77 16,487.77 16,487.77 16,487.77
Third Floor (3) 300 3,765 7,938.16 7,938.16 7,938.16 7,938.16
Third Floor (4) 300 4,052 8,543.28 8,543.28 8,543.28 8,543.28
Xxxxxx Xxxxx 000 25,333 53,412.35 53,412.35 53,412.35 53,412.35
98,160 206,961.53 206,961.53 206,961.53 206,961.53
TOTAL ANNUAL RENT 2,483,538.31
RENT GUARANTY YEAR THREE
WORKSHEET NAME SUITE SQFT DEC-07 JAN-08 FEB-08 MAR-08 APR-08 MAY-08 JUN-08 JUL-08 AUG-08 SEP-08 OCT-08 NOV-08
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Fourth Floor 400 25,333
98,160
RENT YEAR FOUR
WORKSHEET NAME SUITE SQFT AUG-08 SEP-08 OCT-08 NOV-08 DEC-08 JAN-09 FEB-09
First Floor 100 16,836 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11
Xxxxx Xxxxx XX 000 8,126 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93
Xxxxxx Xxxxx 000 2,259 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79
Second Floor (2) 200 406 881.69 881.69 881.69 881.69 881.69 881.69 881.69
Second Floor (3) 200 6,632 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46
Second Floor (4) 200 3,702 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49
Second Floor (5) 200 9,655 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40
Xxxxx Xxxxx 000 9,574 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49
Third Floor (2) 300 7,820 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40
Third Floor (3) 300 3,765 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31
Third Floor (4) 300 4,052 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58
Xxxxxx Xxxxx 000 25,333 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72
98,160 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37
RENT YEAR FOUR
WORKSHEET NAME SUITE SQFT MAR-09 APR-09 MAY-09 JUN-09 JUL-09
First Floor 100 16,836 36,562.11 36,562.11 36,562,11 36,562.11 36,562.11
Xxxxx Xxxxx XX 000 8,126 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93
Xxxxxx Xxxxx 000 2,259 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79
Second Floor (2) 200 406 881.69 881.69 881.69 881.69 881.69
Second Floor (3) 200 6,632 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46
Second Floor (4) 200 3,702 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49
Second Floor (5) 200 9,655 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40
Xxxxx Xxxxx 000 9,574 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49
Third Floor (2) 300 7,820 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40
Third Floor (3) 300 3,765 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31
Third Floor (4) 300 4,052 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58
Xxxxxx Xxxxx 000 25,333 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72
98,160 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37
TOTAL ANNUAL RENT 2,558,044.46
RENT GUARANTY YEAR FOUR
WORKSHEET NAME SUITE SQFT DEC-08 JAN-09 FEB-09 MAR-09 APR-09 MAY-09 JUN-09 JUL-09 AUG-09 SEP-09 OCT-09 NOV-09
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
RENT YEAR FIVE
WORKSHEET NAME SUITE SQFT AUG-09 SEP-09 OCT-09 NOV-09 DEC-09 JAN-10 FEB-10
First Floor 100 16,836 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97
Xxxxx Xxxxx XX 000 8,126 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34
Xxxxxx Xxxxx 000 2,259 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96
Second Floor (2) 200 406 908.15 908.15 908.15 908.15 908.15 908.15 908.15
Second Floor (3) 200 6,632 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54
Second Floor (4) 200 3,702 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68
Second Floor (5) 200 9,655 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42
Xxxxx Xxxxx 000 9,574 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24
Third Floor (2) 300 7,820 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87
Third Floor (3) 300 3,765 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60
Third Floor (4) 300 4,052 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56 9,063,56
Xxxxxx Xxxxx 000 25,333 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16
98,160 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48
RENT YEAR FIVE
WORKSHEET NAME SUITE SQFT MAR-10 APR-10 MAY-10 JUN-10 JUL-10
First Floor 100 16,836 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97
Xxxxx Xxxxx XX 000 8,126 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34
Xxxxxx Xxxxx 000 2,259 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96
Second Floor (2) 200 406 908.15 908.15 908.15 908.15 908.15
Second Floor (3) 200 6,632 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54
Second Floor (4) 200 3,702 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68
Second Floor (5) 200 9,655 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42
Xxxxx Xxxxx 000 9,574 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24
Third Floor (2) 300 7,820 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87
Third Floor (3) 300 3,765 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60
Third Floor (4) 300 4,052 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56
Xxxxxx Xxxxx 000 25,333 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16
98,160 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48
TOTAL ANNUAL RENT 2,634,785.79
RENT GUARANTY YEAR FIVE
WORKSHEET NAME SUITE SQFT DEC-09 JAN-10 FEB-10 MAR-10 APR-10 MAY-10 JUN-10 JUL-10 AUG-10 SEP-10 OCT-10 NOV-10
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
RENT YEAR SIX
WORKSHEET NAME SUITE SQFT AUG-10 SEP-10 OCT-10 NOV-10 DEC-10 JAN-11 FEB-11
First Floor 100 16,836 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74 38,788,74 38,788.74
Xxxxx Xxxxx XX 000 8,126 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63
Xxxxxx Xxxxx 000 2,259 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55
Second Floor (2) 200 406 935.39 935.39 935.39 935.39 935.39 935.39 935.39
Second Floor (3) 200 6,632 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57
Second Floor (4) 200 3,702 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10
Second Floor (5) 200 9,655 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31
Xxxxx Xxxxx 000 9,574 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70
Third Floor (2) 300 7,820 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63
Third Floor (3) 300 3,765 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25
Third Floor (4) 300 4,052 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47
Xxxxxx Xxxxx 000 25,333 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12
98,160 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45
RENT YEAR SIX
WORKSHEET NAME SUITE SQFT MAR-11 APR-11 MAY-11 JUN-11 JUL-11
First Floor 100 16,836 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74 2,023,327.11
Xxxxx Xxxxx XX 000 8,126 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 1,059,741.01
Xxxxxx Xxxxx 000 2,259 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 294,604.35
Second Floor (2) 200 406 935.39 935.39 935.39 935.39 935.39 62,399.61
Second Floor (3) 200 6,632 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 797,024.56
Second Floor (4) 200 3,702 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 482,791.19
Second Floor (5) 200 9,655 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 1,259,143.42
Xxxxx Xxxxx 000 9,574 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 1,452,889.08
Third Floor (2) 300 7,820 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 939,796.75
Third Floor (3) 300 3,765 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 571,352.35
Third Floor (4) 300 4,052 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 486,963.74
Xxxxxx Xxxxx 000 25,333 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 3,303,768.03
98,160 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 12,733,801.20
TOTAL ANNUAL RENT 2,713,829.36
RENT GUARANTY YEAR SIX
WORKSHEET NAME SUITE SQFT DEC-10 JAN-11 FEB-11 MAR-11 APR-11 MAY-11 JUN-11 JUL-11
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
Oakey Building Rent Guaranty Schedule - Exhibit B
RENT GUARANTY YEAR ONE
SPACE SUITE SQFT DEC-05 JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
First Floor 100 16,836 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40
Xxxxx Xxxxx XX 000 8,126 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80
Second Floor (4) 200 3,702 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80
Second Floor (5) 200 9,655 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80
Xxxxxx Xxxxx 000 25,333 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70
98,160 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57
Daily Rate $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53
RENT GUARANTY YEAR TWO
SPACE SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06 DEC-06
First Floor 100 16,836 34,463.29 34,463.29 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8,294.44 8,294.44
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00 0.00
98,160 72,340.97 72,340.97 72,340.97 72,340.97 72,340.97
$ 2,333.58 $ 2,333.58 $ 2,333.58 $ 2,333.58 $ 2,333.58
TOTAL RENT GUARANTY: 1,745,629
EXHIBIT B TO PURCHASE AND SALE AGREEMENT
FOR THE OAKEY BUILDING
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
the ____day of_______, 2005, between NNN OAKEY BUILDING 2003, LLC, a Delaware
limited liability company ("Seller"), TRANS-AERO LAND AND DEVELOPMENT CORP.
("Purchaser"), and FIRST AMERICAN TITLE CORPORATION ("Escrow Agent").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Agreement dated
as of ____________, 2005 (the "PSA") for the purchase and sale of certain real
property located at 0000 Xxxx Xxxxx Xxxx. (Xxxxx Xxxxxx), Xxxxxx, as more
particularly described in the PSA (the "Property"). Any capitalized terms not
defined herein shall have the meanings set forth in the PSA.
B. The leaseable area within the building on the Property is leased to the
Las Vegas Metropolitan Police Department ("P. D. Lease"). Under the terms of the
P. D. Lease, the Police Department is not required to pay rent for certain space
within the building (the "Free Rent Space"), until such time as Seller fulfills
certain requirements under the terms of its agreement with the Police Department
(the "Free Rent Period"). Unless sooner terminated, the Free Rent Period ends on
December 31, 2006.
C. Section 6.4.5 of the PSA provides that Seller is responsible to cover
the rent which would otherwise be payable during the Free Rent Period. In order
to secure Seller's obligation to cover the rent payable during the Free Rent
Period, the parties are entering into this agreement. The guaranty shall
commence upon close of escrow and continue through the Free Rent Period
described in the P. D. Lease.
NOW THEREFORE, in consideration of the mutual covenants and premises
herein contained, and other good and valuable consideration, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. FREE RENT ESCROW.
(a) At closing, Seller shall escrow from the Seller's net proceeds
with Escrow Agent in an interest-bearing account, the sum of $1,745,629.00.
This amount has been calculated pursuant to a rent commencement schedule more
particularly set forth on Exhibit B attached hereto and incorporated herein.
(b) Upon the rent commencement for the Free Rent Space, the amount
of the monthly Escrow payment shall be reduced by the amount of rent being paid
by the Police Department with respect to portions of the Free Rent Space, from
time to time.
1
(c) Beginning on the fifteenth (15th) day of each calendar month
following December, 2005, and until such time as the Police Department is paying
the full rent, the Escrow Agent shall, with instruction from both parties,
disburse a mutually agreed upon amount (the "Rent Payment") to Purchaser.
(e) Any balance remaining in the Escrow on January 2, 2007, shall be
disbursed to Seller immediately.
2. DISPUTES. In the event of a dispute between any of the parties hereto
as to their respective rights and interests hereunder, the Escrow Agent shall be
entitled to hold any and all cash then in its possession hereunder until such
dispute shall have been resolved by the parties in dispute and the Escrow Agent
shall have been notified by instrument jointly signed by all of the parties in
dispute, or until such dispute shall have been finally adjudicated by a court of
competent jurisdiction.
3. LIABILITY OF ESCROW AGENT. The Escrow Agent hereby consents and agrees
to all of the provisions hereof, and agrees to accept, as Escrow Agent
hereunder, all cash and documents deposited hereunder, and agrees to hold and
dispose of said cash and documents deposited hereunder in accordance with the
terms and provisions hereof. It is agreed that the Escrow Agent shall have no
obligation or liability hereunder except as a depositary to retain the cash
which may be deposited with it hereunder and to dispose of the same in
accordance with the terms hereof. The Escrow Agent shall be entitled to rely and
act upon any written instrument received by it, and if a corporation, purporting
to be executed by an officer thereof, and if a partnership, purporting to be
executed by a general partner thereof and shall not be required to inquire into
the authority of such officer or partner or the correctness of the facts stated
in said instrument. By acceptance of this agreement, Escrow Agent agrees to use
its best judgment and good faith in the performance of any of its obligations
and duties under this Agreement and shall incur no liability to any person for
its acts or omissions hereunder, except for those acts or omissions which may
result from its gross negligence or willful misconduct. Upon disposition by the
Escrow Agent, in accordance with the terms hereof, of the cash deposited with
the Escrow Agent hereunder, the Escrow Agent shall be fully and finally released
and discharged from any and all duties, obligations, and liabilities hereunder.
4. NOTICES. Any notice which any party may be required or may desire to
give hereunder shall be deemed to have been duly given when personally
delivered, against receipt therefore signed by the party to whom the notice is
given, or with respect to any party other than the Escrow Agent, on the next
business day if sent by overnight courier, or on the fourth business day after
mailing by certified or registered mail, postage prepaid, addressed as set forth
below, or to such other address as a party hereto may designate by a notice to
the other parties. Any notice mailed, sent by facsimile transmission, or given
to the Escrow Agent shall be deemed given only when received. Any notice given
by any party hereto shall be given to both of the other parties hereto
simultaneously.
2
If to Seller: c/o Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 Fax
Attn: Xxxxxxx Xxxxxx
If to Purchaser: Trans-Aero Land & Development
Corp.
0000 Xxxxxxx Xxx., Xxxxx 00
Xxx Xxxxx, XX 00000
(000)000-0000
(000)000-0000 fax
If to Escrow Agent: First American Title Company
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
Attention: Xxxxx Xxxxxxxx
5. MISCELLANEOUS. This Escrow Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns. This Agreement
may only be modified or supplemented by an instrument in writing executed by
duly authorized representatives of all parties hereto. This Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Amendment may be executed and delivered by facsimile signature.
In the event of any conflict or inconsistency between the terms of this Escrow
Agreement and the terms of the PSA, the terms of this Escrow Agreement shall
govern and control.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEVADA, AND VENUE SHALL LIE EXCLUSIVELY IN XXXXX COUNTY, NEVADA.
{THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.}
3
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
SELLER: NNN OAKEY BUILDING 2003, LLC
a Delaware limited liability company
By:_______________________________
Name:_____________________________
Title:____________________________
PURCHASER: TRANS-AERO LAND AND DEVELOPMENT CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
ESCROW AGENT: FIRST AMERICAN TITLE COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
4
EXHIBIT A
WIRING INSTRUCTIONS
5
EXHIBIT B
RENT SCHEDULE PURSUANT TO TENANTS LEASE
6
TENANT ESTOPPEL CERTIFICATE
To: LaSalle Bank National Association
000 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Commercial Real Estate Division___
Re: Lease Dated: April 25, 2005 (the "Lease")
Tenant: Las Vegas Metropolitan Police Department (the "Tenant")
Landlord: NNN Oakey Building 2003, LLC, (the "Landlord")
a Delaware limited liability company
Common Address of Building:
0000 Xxxx Xxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxx (the "Building")
Leased Premises within the Building: 98,160 square feet(the "Premises")
The Tenant acknowledges that (a) LaSalle Bank National Association, a
national banking association (the "Lender") has agreed, subject to the
satisfaction of certain terms and conditions, to make a loan (the "Loan") to NNN
OAKEY BUILDING 2003, LLC, A DELAWARE LIMITED LIABILITY COMPANY (the "Landlord"),
secured by a mortgage lien on the Landlord's interest in the Building and the
land on which the Building is located, and (b) the Lender is requiring this
Certificate as a condition to its making the Loan. Accordingly, the Tenant
hereby certifies and confirms to the Lender and acknowledges and agrees as
follows:
1. Pursuant to Exhibit "X-x" of the Lease, the Tenant anticipates being in
partial possession of the Premises demised under the Lease on or about August 1,
2005, such possession to be delivered by the Landlord pursuant to the Lease and
accepted by the Tenant.
2. The Tenant anticipates that the improvements to the Premises that the
Landlord is required to furnish under the Lease will be completed in all
respects to the satisfaction of the Tenant, and the Premises will be open for
the use of the Tenant, its customers, employees and invitees. All contributions
required to be paid by the Landlord to the Tenant in connection with
improvements to the Premises have been paid in full.
3. To date, all duties or obligations of the Landlord required under the
Lease which were an inducement to the Tenant to enter into the Lease have been
fully performed.
4. The Lease is in full force and effect. No default exists on the part of
the Landlord or the Tenant under the Lease, nor does any circumstance currently
exist that, but for the giving of notice or the passage of time, or both, would
be such a default. The Lease constitutes the entire rental agreement between the
Landlord and the Tenant with respect to the Premises and has not been amended,
modified or supplemented, except as attached hereto, and has not been
superceded. There are no oral agreements between the Landlord and the Tenant
with respect to the Premises. A true and correct copy of the Lease (including
all amendments thereto) is
attached to this Certificate as Exhibit "A", and the Tenant agrees not to amend
or modify the Lease without the prior written consent of the Lender.
5. No rents under the Lease have been prepaid. The Tenant agrees that it
shall not prepay any rents under the Lease more than one month from the date
when such rents are due. The Tenant does not now have or hold any claim or
defense against the Landlord which might be set off or credited against future
accruing rents or which might otherwise excuse the Tenant's performance under
the Lease.
6. The Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the Lease or of the rents secured
therein.
7. The Tenant does not have any outstanding options or rights of first
refusal to purchase the Premises, or any part thereof, or to purchase or lease
any other part of the Building, except (state none, if applicable): those spaces
identified in Exhibit "B-2" of the Lease.
8. No actions, whether voluntary or involuntary, are pending against the
Tenant or any guarantor of the Lease under any bankruptcy, insolvency or similar
laws of the United States or any state thereof.
9. The term of the Lease is estimated to commence on August 1, 2005 and
end on July 31, 2011, subject to options to renew, if any, and Sections 2.4 and
2.5 set forth in the Lease.
10. Beginning on the Lease Commencement Date, as that term is defined in
the Lease, the monthly base rental payable by Tenant under the Lease will be
$787.64. Percentage Rent is not payable, as provided in the Lease. The estimated
monthly payments made by the Tenant under the Lease in respect of common area
maintenance costs and real estate taxes will be $ TBD and $ TBD , respectively.
11. The security deposit under the Lease is currently N/A.
12. So long as the Loan is outstanding, the Tenant shall pay any
termination fees payable for the early termination of the Lease to the Landlord
and the Lender jointly.
IN WITNESS WHEREOF, the Tenant has executed this Tenant Estoppel
Certificate as of July_____, 2005.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Sheriff
2
EXHIBIT "A"
COPY OF LEASE
[TO BE ATTACHED BY TENANT]
3
This document was prepared by,
and after recording, return to:
Xxxxx Xxxxxxxx
Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Permanent Tax Index Number[s]:
______________________ This space reserved for Recorders use only.
Property Address:
0000 XXXX XXXXX XXXXXXXXX, XXX XXXXX, XXXXXX
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT dated as of
April 25, 2005 (the "Agreement"), is executed by and among NNN Oakey Building
2003, LLC, a Delaware limited liability company (the "Landlord"), Las Vegas
Metropolitain Police Department, a metropolitan police department formed
pursuant to the laws of Chapter 280 of the Nevada Revised Statutes (the
"Tenant"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(the "Lender").
RECITALS:
A. The Lender is the mortgagee under that certain Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing dated_________,
200____________, to be recorded concurrently herewith (the "Mortgage"), which
Mortgage encumbers the Real Estate (as hereinafter defined) and secures a
principal indebtedness in the amount of____________and 00/100 Dollars
($__________).
B. The Tenant has entered into that certain lease agreement (such lease
agreement hereinafter being referred to as the "Lease Agreement", and the Lease
Agreement, together with all amendments and modifications thereof, hereinafter
being referred to as the "Lease") dated APRIL 25, 2005 with the Landlord (or the
Landlord's predecessor-in-interest), pursuant to which the Tenant has leased
certain premises (the "Leased Premises") [CONSISTING OF APPROXIMATELY 98,160
RENTABLE SQUARE FEET OF SPACE IN THE BUILDING ("BUILDING")] on the parcel of
land (the "Land"; the Land and Building being collectively referred to herein as
the "Real Estate") legally described on Exhibit "A" attached hereto and made a
part hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and
agree as follows:
AGREEMENTS:
1. The Tenant represents and warrants to the Lender that the Lease
constitutes the entire agreement between the Tenant and the Landlord with
respect to the Leased Premises and there are no other agreements, written or
verbal, governing the tenancy of the Tenant with respect to the Leased Premises.
2. The Tenant has executed and delivered to the Lender that certain Tenant
Estoppel Certificate dated on or about the date hereof (the "Estoppel
Certificate"). The provisions of the Estoppel Certificate are hereby
incorporated into this Agreement as if fully set forth in this Agreement in
their entirety.
3. The Tenant covenants with the Lender that the Lease shall be subject
and subordinate to the lien and all other provisions of the Mortgage and to all
modifications and extensions thereof, to the full extent of all principal,
interest and all other amounts now or hereafter secured thereby and with the
same force and effect as if the Mortgage had been executed and delivered prior
to the execution and delivery of the Lease. Without limiting the generality of
the foregoing subordination provision, the Tenant hereby agrees that any of its
right, title and interest in and to insurance proceeds and condemnation awards
(or other similar awards arising from eminent domain proceedings) with respect
to damage to or the condemnation (or similar taking) of any of the Real Estate,
shall be subject and subordinate to the Lender's right, title and interest in
and to such proceeds and awards.
4. The Tenant acknowledges that the Landlord has collaterally assigned to
the Lender any and all leases affecting the Real Estate, including the Lease,
and the rents and other amounts, including, without limitation, lease
termination fees, if any, due and payable under such leases. In connection
therewith, the Tenant agrees that, upon receipt of a notice of a default by the
Landlord under such assignment and a demand by the Lender for direct payment to
the Lender of the rents due under the Lease, the Tenant will honor such demand
and make all subsequent rent payments directly to the Lender. The Tenant further
agrees that any Lease termination fees payable under the Lease shall be paid
jointly to the Landlord and the Lender.
5. The Lender agrees that so long as the Tenant is not in default under
the Lease:
(a) The Tenant shall not be named or joined as a party in any suit,
action or proceeding for the foreclosure of the Mortgage or the
enforcement of any rights under the Mortgage (unless the Tenant is a
necessary party under applicable law); and
2
(b) The possession by the Tenant of the Leased Premises and the
Tenant's rights thereto shall not be disturbed, affected or impaired by,
nor will the Lease or the term thereof be terminated or otherwise
materially adversely affected by (i) any suit, action or proceeding for
the foreclosure of the Mortgage or the enforcement of any rights under the
Mortgage, or by any judicial sale or execution or other sale of the Leased
Premises, or any deed given in lieu of foreclosure, or (ii) any default
under the Mortgage.
6. Prior to pursuing any remedy available to the Tenant under the Lease,
at law or in equity as a result of any failure of the Landlord to perform or
observe any covenant, condition, provision or obligation to be performed or
observed by the Landlord under the Lease (any such failure being hereinafter
referred to as a "Landlord's Default"), the Tenant shall: (a) provide the Lender
with a notice of the Landlord's Default, specifying the nature thereof, the
section of the Lease under which such Landlord's Default arose, and the remedy
which the Tenant will elect under the terms of the Lease or otherwise, and (b)
allow the Lender not less than thirty (30) days following receipt of notice of
the Landlord's Default to cure the same; provided, however, that, if such
Landlord's Default is not readily curable within such thirty (30) day period,
the Tenant shall give the Lender such additional time as the Lender may
reasonably need to obtain possession and control of the Real Estate and to cure
such Landlord's Default so long as the Lender is diligently pursuing a cure. The
Tenant shall not pursue any remedy available to it as a result of any Landlord's
Default unless the Lender fails to cure same within the time period specified
above. For purposes of this Section 6, a Landlord's Default shall not be deemed
to have occurred until all grace and/or cure periods applicable thereto under
the Lease have lapsed without the Landlord having effectuated a cure thereof.
7. If the Lender or any future holder of the Mortgage shall become the
owner of the Real Estate by reason of foreclosure of the Mortgage or otherwise,
or if the Real Estate shall be sold as a result of any action or proceeding to
foreclose the Mortgage or transfer of ownership by deed given in lieu of
foreclosure, the Lease shall continue in full force and effect, without
necessity for executing any new lease, as a direct lease between the Tenant and
the new owner of the Real Estate as "landlord" upon all the same terms,
covenants and provisions contained in the Lease (subject to the exclusions set
forth in subsection (b) below), and in such event:
(a) The Tenant shall be bound to such new owner under all of the
terms, covenants and provisions of the Lease for the remainder of the term
thereof (including the extension periods, if the Tenant elects or has
elected to exercise its options to extend the term), and the Tenant hereby
agrees to attorn to such new owner and to recognize such new owner as
"landlord" under the Lease without any additional documentation to effect
such attornment (provided, however, if applicable law shall require
additional documentation at the time the Lender exercises its remedies
then the Tenant shall execute such additional documents evidencing such
attornment as may be required by applicable law);
3
(b) Such new owner shall be bound to the Tenant under all of the
terms, covenants and provisions of the Lease for the remainder of the term
thereof (including the extension periods, if the Tenant elects or has
elected to exercise its options to extend the term); provided, however,
that such new owner shall not be;
(i) liable for any act or omission of any prior landlord
(including the Landlord);
(ii) subject to any offsets or defenses which the Tenant has
against any prior landlord (including the Landlord) unless the
Tenant shall have provided the Lender with (A) notice of the
Landlord's Default that gave rise to such offset or defense, and (B)
the opportunity to cure the same, all in accordance with the terms
of Section 6 above;
(iii) bound by any base rent, percentage rent, additional rent
or any other amounts payable under the Lease which the Tenant might
have paid in advance for more than the current month to any prior
landlord (including the Landlord);
(iv) liable to refund or otherwise account to the Tenant for
any security deposit not actually paid over to such new owner by the
Landlord;
(v) bound by any amendment or modification of the Lease made
without the Lender's consent;
(vi) bound by, or liable for any breach of, any representation
or warranty or indemnity agreement contained in the Lease or
otherwise made by any prior landlord (including the Landlord); or
(vii) personally liable or obligated to perform any such term,
covenant or provision, such new owner's liability being limited in
all cases to its interest in the Real Estate.
8. Any notices, communications and waivers under this Agreement shall be
in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, or (iii) by
overnight express carrier, addressed in each case as follows:
To the Lender LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Commercial Real Estate Division ____
4
With a copy to: Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
To the Landlord: NNN Oakey Building 2003, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attention: Notices Department
With a copy to: The Xxxxxxxxx Law Group
0000 Xxx Xxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx A, Xxxxxxxxx, Esq.
With a copy to: Triple Net Properties
0000 X. Xxxx Xxxx Xxxx., Xxx 000
Xxx Xxxxx, XX 00000
Attention:
To the Tenant: Director, General Services Bureau
Las Vegas Metropolitain Police Department
0000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
With a copy to: Marquis & Aurbach
00000 Xxxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
or to any other address as to any of the parties hereto, as such party shall
designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this section shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by overnight, express
carrier, then on the next federal banking day immediately following the day
sent, or (iii) if sent by registered or certified mail, then on the earlier of
the third federal banking day following the day sent or when actually received.
9. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their respective successors and assigns and any nominees of
the Lender, all of whom are entitled to rely upon the provisions hereof. This
Agreement shall be exclusively governed by the laws of the State of Nevada.
5
10. This Agreement may be executed in multiple counterparts and all of
such counterparts together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Subordination,
Non-Disturbance and Attornment Agreement the day and year first above written.
LANDLORD:
NNN OAKEY BUILDING 2003, LLC,
a Delaware limited liability company
By: ___________________________________
Name:__________________________________
Title:_________________________________
TENANT:
LAS VEGAS METROPOLITAN
POLICE DEPARTMENT, a metropolitan police
department formed pursuant to Chapter 280 of the
Nevada Revised Statutes
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Sheriff
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:_____________________________________
Name:___________________________________
Title:__________________________________
6
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________________________, the
_________________________ of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as trustee as aforesaid, who is personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as
such ____________________________, he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said banking association, as trustee as aforesaid, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of _______,
200__.
____________________
Notary Public
My Commission Expires:
____________________
STATE OF NEVADA )
) SS.
COUNTY OF XXXXX )
The undersigned, a Notary Public in and for the said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________________________, the
_________________________, of Las Vegas Metropolitan Police Department, a
metropolitan police department formed pursuant to NRS Chapter 280, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such ____________________________, appeared before me
this day in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said police department, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 20 day of July, 2005.
/s/ Xxxxx Xxxxx
---------------
[SEAL] Notary Public
My Commission Expires:
7
____________________
STATE OF ILLINOIS )
) SS.
COUNTY OF _________ )
The undersigned, a Notary Public in and for the said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________________________, the
_________________________, of _________________________, a[n] ________________
[CORPORATION / LIMITED PARTNERSHIP / LIMITED LIABILITY COMPANY], who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such _________________________, appeared before me this
day in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said [CORPORATION / LIMITED PARTNERSHIP / LIMITED LIABILITY COMPANY], for
the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of ______, 20____.
____________________
Notary Public
My Commission Expires:
____________________
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________________________, the
_________________________ of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, who is personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that as such _________________________, he/she signed
and delivered the said instrument as his/her own free and voluntary act and as
the free and voluntary act of said banking association, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of ______, 200____.
____________________
Notary Public
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My Commission Expires:
______________________________________
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EXHIBIT "A"
LEGAL DESCRIPTION OF REAL ESTATE
LOT ____ IN _________ SUBDIVISION, A SUBDIVISION OF A PART OF THE NORTHEAST
QUARTER OF SECTION ______, TOWNSHIP ______ NORTH, RANGE _____ EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED AS DOCUMENT NO.
___________ IN _______________ COUNTY, ILLINOIS; IN BOOK _____ OF PLATS, PAGE
_____.
PROPERTY ADDRESS OF REAL ESTATE:
_______________________
_______________________
PERMANENT TAX IDENTIFICATION NUMBER:
_______________________
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