1
EXHIBIT 10.12
CONTRACT OF SALE
OF IMPROVED PROPERTY
THIS CONTRACT OF SALE OF IMPROVED PROPERTY (this "Contract") is made
and entered as of February 17, 2000 (the "Effective Date"), by and between
BROMAR, INC., a California corporation ("Seller"), and RCPI OFFICE PROPERTIES,
LLC, a Texas limited liability company ("Buyer").
For and in consideration of the mutual covenants and agreements
contained in this Contract and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree
as follows:
1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer, and Buyer
agrees to buy from Seller, the Property (as hereinafter defined) for the
consideration and upon and subject to the terms, provisions and conditions
hereinafter set forth.
(a) DESCRIPTION OF THE PROPERTY. The "Property" means: the
improved tract of land (the "Land") situated in Maricopa County, Arizona, more
particularly described in the Exhibit A attached hereto, together with (i) all
buildings, structures and improvements thereon (collectively, the
"Improvements") including, without limitation, associated parking areas,
landscaping, storm water drainage systems and exterior lighting, all mechanical
systems, fixtures and equipment (including, but not limited to, compressors,
engines, elevators and escalators), electrical systems, fixtures and equipment,
heating fixtures, systems and equipment, air conditioning fixtures, systems and
equipment, and plumbing fixtures, systems and equipment, (ii) all of Seller's
right, title and interest in and to oil, gas, hydrocarbons and other minerals
(including, but not limited to, coal, lignite, iron and uranium) in, on, or
under or that may be produced from the Land, (iii) any and all rights, titles,
powers, privileges, easements, licenses, rights-of-way and interests appurtenant
to the Land, (iv) all and singular the rights, titles, benefits, privileges,
remainders, reversions, easements, tenements, hereditaments, interests and
appurtenances of Seller pertaining to the Land, including, without limitation,
any right, title and interest, if any, of Seller in and to adjacent strips or
gores, if any, between the Land and abutting properties, and in and to adjacent
streets, highways, roads, alleys or rights-of-way (except to the extent, if any,
that such streets, highways, roads, alleys or rights-of-way abut or provide
access to or benefit other properties owned by Seller), either at law or in
equity, in possession or expectancy, and (v) all rights, titles, powers,
privileges, interests, licenses, easements and rights-of-way appurtenant or
incident to any of the foregoing.
(b) AMENDMENTS TO PROPERTY DESCRIPTION. Intentionally deleted.
2. CONTRACT PURCHASE PRICE. Subject to the provisions of this Section 2,
the total purchase price for the Property (the "Sales Price") shall be
$2,375,000.00.
(a) PAYABLE IN TWO INSTALLMENTS. The Sales Price shall be payable
in two installments, with $2,137,500 (the "First Installment") payable in
Immediately Available Funds (as hereinafter defined) at the Closing (as defined
in Section 10.(a) below), and the remaining $237,500.00 (the "Second
Installment") payable in Immediately Available Funds on the sixtieth (60th) day
following the Closing (such day is herein referred to as the "Second Installment
Due Date"); provided, however, if, prior to the Second Installment Due Date,
Buyer has notified Seller in writing (the "Default Notice") that (i) a
representation or warranty of Seller in Section 6 hereof was false or inaccurate
in a material respect, or (ii) Seller has failed to perform any of its
obligations under this Contract that expressly survive the Closing, or (iii)
Buyer has discovered an Unacceptable Condition (as hereinafter defined), then
the Second Installment shall not be paid on the Second Installment Due Date and
shall only be payable as expressly provided in this Section 2. As used herein,
the term "Unacceptable Condition" shall mean any condition with respect to the
Property that a purchaser of the Property would reasonably deem to be so
unacceptable as to prevent such purchaser from purchasing the Property unless
such condition was remedied prior to closing or an appropriate purchase price
reduction was made available to such purchaser at closing.
(b) DEFAULT NOTICE. In any Default Notice, Buyer shall (1) set
forth in detail the basis on which Buyer claims that one or more of Seller's
representations or warranties is false or materially misleading, (2)
2
reasonably estimate the financial loss incurred or to likely be incurred by
Buyer as a result of such Seller misrepresentation (a "Loss Due to Breach"),
and/or (3) identify with reasonable specificity any Unacceptable Condition
discovered by Buyer after the Closing Date and provide Seller with Buyer's
estimate of the amount necessary to repair and/or remedy such Unacceptable
Condition. If, within ten (10) days after Seller's receipt of the Default
Notice, Seller disputes any matter contained in the Default Notice, Seller shall
notify Buyer in writing of the same and Buyer and Seller shall thereafter
proceed to diligently and in good faith attempt to resolve such dispute and, if
the parties are unable to resolve the same within ten (10) days after Buyer's
receipt of the applicable dispute notice, such dispute shall be submitted for
resolution by binding arbitration in accordance with the terms, conditions and
provisions of the Exhibit G attached to this Contract.
(c) PAYMENT OF SECOND INSTALLMENT.
(1) If Seller does not dispute Buyer's claim for Loss Due
to Breach and/or claim of one or more Unacceptable Conditions within such ten
(10) day period, Buyer shall pay the Second Installment, reduced by the
applicable amount of the Loss Due to Breach and the amount of all Confirmed
Costs (as hereinafter defined), on the sixtieth (60th) day after the Second
Installment Due Date.
(2) If Seller does dispute Buyer's claim for Loss Due to
Breach and/or claim of one or more Unacceptable Conditions within such ten (10)
day period, Buyer shall pay the Second Installment, reduced by the disputed
amounts, as applicable, of the claimed Loss Due to Breach and/or the claimed
amount of Confirmed Costs (such amounts are herein collectively referred to as
"Disputed Amounts"), on the Second Installment Due Date. The Disputed Amounts
withheld from the Second Installment will be paid to Seller within ten (10) days
after either (A) the date the parties reach an agreement in writing with respect
to the amount of the Disputed Amounts, or (B) a determination is made upon the
completion of arbitration proceedings as to the amount of the Disputed Amounts.
(3) As used herein, the term "Immediately Available
Funds" shall mean funds paid by either a cashier's check or certified check
drawn on a national banking association acceptable to Seller or a wire transfer
of immediately available federal funds, and the term "Confirmed Costs" shall
mean (i) all costs actually incurred by Buyer to third-parties to repair and/or
remedy Unacceptable Conditions identified in the Default Notice (including,
without limitation, reasonable and necessary legal and consulting fees), or (ii)
all reasonable and necessary costs estimated in good faith by Buyer to repair
and/or remedy Unacceptable Conditions identified in the Default Notice that are
either (1) not disputed by Seller as provided above or are related to an
Unacceptable Condition that Seller does not elect to remedy and/or repair as
provided above, or (2) are disputed by Seller and are ultimately found by
arbitration proceedings to be reasonable and necessary with respect to the
applicable misrepresentation and/or Unacceptable Condition. When providing
Seller with written evidence of the payment of Confirmed Costs, Buyer shall
provide, as applicable, a reasonable breakdown of the components of the
applicable Confirmed Costs.
(d) ADDITIONAL PAYMENT UPON SALE. In the event that Buyer sells
the Property for an amount which is either (i) less than but approximately equal
to $2,559,000.00 or (ii) equal to or greater than $2,559,000.00 within one
hundred and twenty days after the Closing Date, Buyer agrees that
contemporaneously with the closing of any such re-sale, Buyer will pay Seller an
additional $125,000.
3. ESCROW. Intentionally deleted.
4. ENVIRONMENTAL REPORT. Seller has heretofore allowed Buyer's designated
agents to review and copy at Buyer's sole cost and expense the following that
certain environmental report (the "Environmental Report") prepared by Phase One
Inc. dated February 1, 2000, with respect to the Land and/or the Improvements.
2
3
5. TITLE AND SURVEY APPROVAL.
(a) PRELIMINARY TITLE REPORT AND SURVEY DELIVERIES. Seller has
delivered to Buyer the following:
(1) Preliminary Title Report. A preliminary title report
(the "Preliminary Title Report") issued by Fidelity National Title Insurance
Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇, Arizona, Attention: ▇▇▇▇▇▇▇
▇▇▇▇ (the "Title Company") with respect to the Property, together with copies of
all underlying title documents described therein.
(2) Survey. Intentionally deleted.
(b) BUYER'S TITLE POLICY. Intentionally deleted.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby
represents and warrants to Buyer that Seller now has and on the Closing Date
will have and convey to Buyer good and indefeasible title to the Land and
Improvements subject only to the Permitted Exceptions (as defined in Section
10.(b)(2) below). Seller further represents and warrants to Buyer, which
representations and warranties shall be deemed made by Seller to Buyer as of the
Effective Date of this Contract and also as of the Closing Date, that:
(1) Parties in Possession; Matters Related to Leases. To
the best of Seller's knowledge, there are no parties in possession of any
portion of the Improvements or the Land except Seller and the adjacent property
owner as reflected on the Survey. There are no leases or other occupancy
agreements in effect with respect to the Land and/or Improvements.
(2) Power and Authority. Seller has, or on the Closing
Date will have, the power and authority to carry out Seller's obligations
hereunder. All requisite action necessary to authorize Seller to enter into this
Contract and to carry out Seller's obligations hereunder has been, or on the
Closing Date will have been, taken. The individual executing this Contract on
behalf of Seller has the full right, power and authority to do so. After the
discharge by Seller of all existing liens and encumbrances at or before the
Closing, Seller will have the power and authority to sell and convey the
Property in accordance with the terms of this Contract.
(3) No Suits or Tax Assessments. To the best of Seller's
knowledge, there are no suits (at law or in equity) or special tax assessments
pending or threatened that affect the Improvements or Land, or Seller's ability
to perform hereunder.
(4) Condemnation Proceedings. Seller has no knowledge,
nor has Seller received any actual written notice, of any condemnation or
eminent domain proceeding pending or threatened against any or all of the
Improvements or Land.
(5) Seller Is Not a "Foreign Person". Seller is not a
"foreign person" within the meaning of Section 1445 of the Internal Revenue
Code, as amended (i.e., Seller is not a foreign corporation, foreign
partnership, foreign trust, foreign estate or foreign person as those terms are
defined in the Internal Revenue Code and regulations promulgated thereunder).
(6) No Violations. Seller has no knowledge, nor has
Seller received written notice from any governmental agency since Seller
acquired the Property, of any existing or threatened violation which remains
uncured of (i) any statute, ordinance, code, rule or regulation of any
governmental entity applicable to the ownership, operation, use, maintenance or
condition of the Property or any part thereof, or (ii) any restrictive covenant
or deed restriction affecting the Property.
3
4
(7) No Liens. The Property and the Personal Property are
free and clear of any mechanic's liens, liens, security interests, mortgages, or
encumbrances of any nature except for those which will be discharged by Seller
at the Closing. No work has been performed or is in progress by or on behalf of
Seller, and, to the best of Seller's knowledge, no materials have been furnished
to the Land or the Improvements or any portion thereof, which might give rise to
mechanic's, materialman's or other liens against the Land, the Improvements or
the Personal Property or any portion thereof except for those which will be
discharged or bonded around at the Closing.
(8) No Property Agreements. There are no management,
service, supply, license, maintenance or other contracts or agreements in effect
with respect to the Property other than those set forth in the Exhibit C
attached hereto (such listed contracts or agreements and any other contracts or
agreements with respect to the Property entered into by Seller prior to the
Closing Date in accordance with the terms of this Contract are herein
collectively referred to as the "Operating Agreements").
(9) Structural Condition. Seller has received no written
notice of any, and to the best of Seller's knowledge there is no, latent or
patent defect in (1) the Improvements or structural elements thereof or
mechanical systems therein (including, without limitation, the roof or roofs of
the Improvements and all heating, ventilating, air conditioning, plumbing,
electrical, utility and sprinkler systems therein), except the defects with
respect to the second floor of the building which Seller has heretofore brought
to Buyer's attention, or (2) the Utilities (as hereinafter defined) serving the
Property. As used herein, "Utilities" shall mean public sanitary and storm
sewers, natural gas, telephone, public water facilities, electrical facilities
and all other utility facilities and services necessary or appropriate for the
operation and occupancy of the Property.
(10) Applicable Laws. To the best of Seller's knowledge,
the location, construction, occupancy, operation, and use of the Property
(including all Improvements thereon) does not violate any applicable law,
statute, ordinance, rule, regulation, order or determination of any governmental
authority or any board of fire underwriters (or other body exercising similar
functions), or any restrictive covenant or deed restriction (recorded or
otherwise) affecting the Property, including without limitation all applicable
zoning ordinances, building codes, flood disaster laws, and health and
environmental laws (hereinafter sometimes collectively called "Applicable
Laws").
(11) Access to the Property. The Property has full and
free access to and from public highways, streets, and roads, and Seller has no
knowledge of any pending or threatened governmental proceeding or any other fact
or condition which would limit or result in the termination of such access.
(12) Utilities. The Improvements are connected to and
serviced by Utilities which connections are, to the best of Seller's knowledge,
in compliance with all Applicable Laws. To the best of Seller's knowledge, all
Utilities servicing the Improvements enter the Land through adjoining public
streets, or, if they pass through adjoining private land, do so in accordance
with valid recorded easements.
(13) Certificates of Occupancy. Permanent certificates of
occupancy required by all governmental authorities having jurisdiction have been
issued for the Improvements and are in full force and effect.
(14) Environmental Laws. To the best of Seller's
knowledge, the Property and the Improvements thereon do not violate any federal,
state, or local law, statute, ordinance, or regulation pertaining to health,
industrial hygiene, or the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.) the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), and all amendments of the foregoing laws, and all
regulations, rules, guidelines, and standards promulgated pursuant to such laws,
as such statutes, regulations, rules, guidelines, and standards are amended from
time to time, and all state laws, regulations, rules, guidelines, standards and
any state superlien or environmental clean-up or disclosure statutes
(collectively, the "Environmental Laws").
4
5
(b) ONE-YEAR WARRANTY. Seller hereby warrants against defects or
problems that may reduce the value of the Property below the Sales Price in (i)
all architectural/structural elements of and mechanical/electrical and related
systems in the Improvements, and (ii) the environmental condition of the
Property. This warranty shall apply to any claims made in writing by Buyer to
Seller during the period of time beginning on the Closing Date and ending on the
365th day thereafter.
(c) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The foregoing
representations and warranties shall not survive the Closing except as
specifically provided in Section 17.(g) below.
(d) WAIVER OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties contained in this Section are intended for the
benefit of Buyer, may not be assigned independently of this Contract, and may be
waived by Buyer, in whole or in part, by an instrument in writing signed by
Buyer or as otherwise expressly provided in this Contract.
7. COVENANTS OF SELLER.
(a) Seller covenants and agrees with Buyer that Seller will within
ten (10) days after the Closing, deliver the following documents to Buyer:
(1) copies of the Certificate(s) of Occupancy for the
Improvements as issued by the applicable governmental authority;
(2) a set of the final "as-built" plans and
specifications for the Improvements, if available, together with copies of any
and all executed change orders in Seller's possession, if any, and all
warranties and guarantees, if any, with respect thereto (in the event that
"as-built" plans and specifications are not available, Seller shall provide the
original set of plans and specifications for the Improvements if such plans and
specifications are in Seller's possession;
(3) copies of all geotechnical reports, inspection
reports, and other engineering reports related to the Land and/or Improvements
in Sellers possession; and
(4) copies of all Operating Agreements with respect to
the Property (accompanied by Seller's signed certificate that the copies
provided are true, correct, and complete).
(b) Seller further covenants and agrees to maintain in effect for
ten (10) days after the Closing Date the property damage insurance for the
Improvements that is in effect as of the Closing Date.
8. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BUYER.
(a) BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller, which representations and warranties shall be deemed made by
Buyer to Seller as of the Effective Date and also as of the Closing Date, as
follows:
(1) Power and Authority. Buyer has the full right, power
and authority to purchase the Property as provided in this Contract and to carry
out Buyer's obligations hereunder. All requisite action necessary to authorize
Buyer to enter into this Contract and to carry out Buyer's obligations hereunder
has been taken. The individual executing this Contract on behalf of Buyer has
the full right, power and authority to do so.
(2) No Suits. There is no suit (at law or in equity)
pending or known to Buyer to be threatened against or affecting Buyer which (i)
in any manner raises any question affecting the validity or enforceability of
this Contract or any other agreement or instrument to which Buyer is a party or
by which it is bound and that is to be used in connection with, or is
contemplated by, this Contract, or (ii) could materially and adversely affect
the ability of Buyer to perform Buyer's obligations hereunder, or under any
document to be delivered pursuant hereto.
5
6
(3) Environmental Report. It is Buyer's responsibility to
assure itself that the information contained in the Environmental Report and any
other engineering reports, building plans and specifications, engineering
drawings, leases, operating reports and other information related to the
Improvements and/or the Land which may be supplied by Seller or any of Seller's
Related Parties, or made available by Seller or any of Seller's Related Parties,
to Buyer is accurate, true and complete, and any reliance by Buyer on the
Environmental Report and such other reports, materials and information, which
reliance is hereby recognized by Seller, shall be undertaken at the risk of
Buyer.
(b) WAIVER OF REPRESENTATIONS OR WARRANTIES. Each of the
representations and warranties contained in this Section are intended for the
benefit of Seller, may not be assigned independently of this Contract by Seller,
and may be waived in whole or in part, by Seller, but only by an instrument in
writing signed by Seller or as otherwise expressly provided in this Contract.
9. LIMITATION OF SELLER'S REPRESENTATIONS AND WARRANTIES.
(a) ACKNOWLEDGEMENTS AND AGREEMENTS OF BUYER. Buyer acknowledges
and agrees as follows:
(1) Disclaimer of Express Warranties. That, except for
Seller's representations and warranties in Section 6 of this Contract and except
for the special warranty of title in the Deed, Seller has not made, and Seller
hereby specifically disclaims, any warranty, guaranty or representation, oral or
written, past, present or future, of, as to, or concerning (i) the nature and
condition of the Property, including, without limitation, the water, soil and
geology, and the suitability thereof and of the Property for any and all
activities and uses which Buyer may elect to conduct thereon; and (ii) the
compliance of the Property or its operation with any laws, ordinances, orders,
rules or regulations of any governmental or other body. Buyer acknowledges that
having been given the opportunity to inspect the Property, Buyer is relying
solely on Buyer's own investigation of the Property and has not relied on, and
is not relying on (and Seller shall have no liability or obligation whatsoever
for any inaccuracy in or omission from), any information, documents, sales
brochures, or other literature, maps or sketches, projections, pro formas,
statements, representations, guarantees, or warranties (whether express or
implied, or oral or written, or material or immaterial), if any, that may have
been given, made or made available by or on behalf of Seller or any of Seller's
Related Parties other than the special warranty of title contained in the Deed
and the representations and warranties set forth in Section 6 of this Contract.
Any information heretofore provided or made available to, and to be provided and
made available to, Buyer or any of Buyer's Related Parties (as hereinafter
defined) by or on behalf of Seller with respect to the Property was obtained
from a variety of sources and Seller (A) has not made any independent
investigation or verification of such information; and (B) makes no
representations, guarantees or warranties as to the truth, accuracy or
completeness of such information. Except as specifically set forth in the Deed
and in Section 6 of this Contract, Buyer is purchasing the Property, and the
Property shall be conveyed and transferred to Buyer, without any warranties,
representations, or guarantees, either express or implied, of any kind, nature,
or type whatsoever from or on behalf of Seller or any of Seller's Related
Parties. Buyer expressly acknowledges that, in consideration of the agreements
of Seller herein, except as otherwise specified in this Contract, Seller makes
no warranty or representation, express or implied, or arising by operation of
law, including, but not limited to, any warranty of condition, habitability,
merchantability, tenantability or fitness for a particular use or purpose, or
with respect to the value, profitability or marketability of the Property, or
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 with respect to the Property. As
used herein, the term "Buyer's Related Parties" shall mean any of Buyer's
agents, officers, partners, contractors, attorneys, servants, employees,
lenders, accountants and representatives.
(2) Hazardous Substances Disclaimer. Intentionally
deleted.
(3) Disclaimer of Implied Warranties. Seller hereby
expressly disclaims any and all implied warranties (including, without
limitation, implied warranties of condition, merchantability, habitability,
6
7
fitness for a particular purpose, and implied warranties with respect to the
value, profitability or marketability of the Property) and, except as
specifically set forth in the Deed or Section 6 of this Contract, Seller hereby
disclaims 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.
(b) LIMITATION ON LIABILITY. Except as otherwise specifically
stated in this Contract (including, without limitation, the provisions of
Section 2 above), Buyer agrees that Seller shall not be responsible or liable to
Buyer for any defects, errors, omissions, contamination, pollution, or on
account of any other conditions affecting the Improvements or the Land. Buyer,
by its execution hereof, accepts the Improvements and the Land in their physical
condition as of the Effective Date (reasonable wear and tear and damage by fire
or other casualty excepted), "and acknowledges that Buyer has no recourse
whatsoever against Seller in the event of discovery of any defects, errors,
omissions, contamination, pollution, or conditions of any kind, latent or
patent, therein, thereon or thereunder except as expressly provided to the
contrary in this Contract. The terms of this Section 9.(b) are subject to the
representations and warranties contained in Section 6 of this Contract. The
disclaimers, waivers and releases of claims set forth in subsection 9(a) above
shall survive the Closing.
10. CLOSING.
(a) DATE AND PLACE. Subject to the satisfaction of all conditions
precedent set forth in Sections 10.(g) and 10.(h) below, the closing of the sale
of the Property to Buyer (the "Closing") shall take place at the offices of the
Escrow Holder on the Effective Date. As used herein, the term "Closing Date"
shall mean the actual date of the Closing as provided in this Contract. The
conditions precedent to Buyer's obligations hereunder are set forth in Section
10.(g) of this Contract. The conditions precedent to Seller's obligations
hereunder are set forth in Section 10.(h) of this Contract.
(b) SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller has
executed (if appropriate) and delivered to Buyer, at Seller's sole cost and
expense (except as otherwise provided in this Section), the following:
(1) a duly executed and acknowledged Grant Deed (the
"Deed") substantially in the form of that attached hereto as Exhibit E;
(2) a commitment (in the form of a Pro-Forma Title
Policy) by the Title Company to issue an ALTA Extended Coverage Owner's Policy
of Title Insurance (the "ALTA Title Policy") which shall have an insured amount
at least equal to the full amount of the Sales Price, shall be dated as of the
Closing Date, shall include the endorsements set forth in the Exhibit G attached
hereto, and shall insure Buyer's fee simple title to the Land and Improvements
to be good and indefeasible subject only to the following exceptions (the
"Permitted Exceptions"): (i) the standard printed exceptions set forth in the
ALTA Title Policy; (ii) general and special real property taxes and assessments
for the current tax year; and (iii) the exceptions identified on Exhibit H
attached hereto;
(3) possession of the Improvements and Land, subject only
to the Permitted Exceptions and Seller's rights under the Lease (as defined
below);
(4) four (4) original counterparts of a lease agreement
(the "Lease") by and between Seller, as tenant, and Buyer, as landlord, pursuant
to which Seller will lease all of the current buildings located on the Land (the
form of the Lease is attached hereto as Exhibit B);
(5) a non-foreign affidavit in substantially the form of
that attached hereto as Exhibit D;
(6) to the extent in Seller's possession or under its
control, any and all then existing keys, access cards and combinations necessary
to gain access to all portions of the Improvements and Land; and
7
8
(7) such other documents as may be reasonably required to
close this transaction, duly executed; provided, however, any other conveyance
documents reasonably requested by Buyer shall be without recourse or warranty
and without any representations with respect to the subject matter thereof.
(c) BUYER'S OBLIGATIONS AT CLOSING. At Closing, Buyer has
executed, acknowledged and delivered, at Buyer's sole cost and expense, the
following:
(1) the First Installment of the Sales Price in
Immediately Available Funds, increased or reduced by the net amount of
prorations owed by or to Buyer, as appropriate;
(2) four (4) multiple counterparts of the Lease; and
(3) such other documents as may be reasonably required to
close this transaction, duly executed.
(d) PRORATIONS OF REVENUES AND EXPENSES. Because the Lease is a
net lease, there shall be no proration of revenues and expenses with respect to
the Property and which are applicable to the period of time before and after the
Closing Date.
(e) TAX PRORATIONS. Because the Lease is a net lease, there shall
be no proration of any standby fees, taxes and assessments for the Property for
the year of the Closing.
(f) PRORATION TIMING. Intentionally deleted.
(g) CONDITIONS PRECEDENT TO BUYER'S CLOSING OBLIGATIONS.
Intentionally deleted.
(h) CONDITIONS PRECEDENT TO SELLER'S CLOSING OBLIGATIONS.
Intentionally deleted.
(i) CLOSING COSTS. Seller shall pay: fees for preparation of the
conveyance documentation; all documentary transfer taxes, other taxes and/or
recording fees payable in connection with the transfer of the Property; Seller's
attorneys' fees; the premium for the ALTA Title Policy; and other expenses
stipulated to be paid by Seller under other provisions of this Contract. Buyer
shall pay: costs of tax certificates; Buyer's attorneys' fees; all costs and
expenses incurred in connection with any financing obtained by Buyer with
respect to transaction contemplated hereby recording fees for the deed of trust,
if any, and the Deed; and other expenses stipulated to be paid by Buyer under
other provisions of this Contract.
11. DEFAULT, REMEDIES, INDEMNIFICATION.
(a) REMEDIES FOR DEFAULT. If Seller fails to perform any of its
obligations hereunder that expressly survive the Closing or if any of Seller's
representations or warranties are false or inaccurate in a material respect,
Seller shall be in default, and Buyer shall have the right to enforce the
dispute resolution procedures set forth in Exhibit F attached to this Contract.
(b) INDEMNIFICATION. Seller agrees to indemnify and hold Buyer
harmless from and against, and to reimburse Buyer with respect to, any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including attorneys' fees and costs) of any and every kind or
character, known or unknown, fixed or contingent, asserted against or incurred
by Buyer, at any time and from time to time by reason of, in connection with or
arising out of (i) the fact that a representation or warranty of Seller set
forth in this Contract was false or inaccurate in a material respect, or (ii)
the failure of Seller to perform any of its obligations set forth herein within
the time period(s) required hereby. Seller further agrees to indemnify and hold
Buyer harmless from and against, and to reimburse Buyer with respect to, any and
all claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including attorneys' fees and costs) of any and every kind or
character, known or unknown, fixed or contingent, asserted against or incurred
by Buyer, at any time and from time to time by reason of, in connection with or
arising out of (1) any transfer of title to the Property by Seller after the
Closing Date, and/or (2) the granting by Seller after the
8
9
Closing Date of any lien or other encumbrance to title to the Land and/or
Improvements.
12. BROKER'S FEE. Buyer and Seller represent, warrant and agree that no
real estate commissions, finders' fees, or brokers' fees have been or will be
incurred in connection with the sale of the Property by Seller to Buyer other
than a commission payable by Seller to ▇▇▇▇▇ & ▇▇▇▇▇ (the "Seller's Broker")
pursuant to a separate written agreement between Seller and the Seller's Broker.
Such commission shall be deemed earned and shall be due and payable only if, as
and when the sale contemplated by this Contract is consummated. Buyer shall
indemnify, defend and hold Seller and Seller's affiliates and its and their
respective agents, officers, contractors, servants, employees and
representatives harmless from any claim, liability, obligation, cost or expense
(including attorneys' fees and expenses) for fees or commissions relating to
Buyer's purchase of the Property asserted against Seller by any broker or other
person (other than the Seller's Broker) claiming by, through or under Buyer.
Seller shall indemnify, defend and hold Buyer and all of Buyer's Related Parties
harmless from any claim, liability, obligation, cost or expense (including
attorneys' fees and expenses) for fees or commissions relating to Buyer's
purchase of the Property asserted against Buyer by any broker or other person
(including, without limitation, the Seller's Broker) claiming by, through or
under Seller. The rights and obligations of the parties hereto set forth in this
Section shall survive the Closing.
13. ATTORNEYS' FEES. Any party to this Contract who is the prevailing party
in any legal proceeding against the other party brought under or with respect to
this Contract or the transaction contemplated hereby shall be additionally
entitled to recover court costs and reasonable attorneys' fees (at trial and on
appeal) from the non-prevailing party as awarded by court. The rights and
obligations of the parties hereto set forth in this Section shall survive the
Closing or any termination of this Contract.
14. CONDEMNATION. Intentionally deleted.
15. FIRE OR OTHER CASUALTY. Intentionally deleted.
16. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be (i) delivered by hand, (ii)
transmitted by facsimile transmission and confirmed by either (a) Federal
Express (or comparable overnight delivery service) with signature required, or
(b) certified mail, return receipt requested, (iii) sent prepaid by Federal
Express (or a comparable overnight delivery service) with signature required, or
(iv) sent by the United States mail, certified, postage prepaid, return receipt
requested, at the addresses and with such copies as designated below. Any
notice, request, demand or other communication delivered or sent in the manner
aforesaid shall be deemed given and received (as the case may be) when actually
delivered by hand delivery, facsimile transmission (and confirmed as provided
above), or overnight courier, or, when sent by United States mail, postage
prepaid, certified mail, return receipt requested, the earlier of (a) the date
of actual delivery, or (b) three (3) business days after deposit in the United
States mail.
If to Seller: Bromar, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
9
10
If to Buyer: RCPI Office Properties, LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Raleigh ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the intended recipient may have specified in a
notice to the other party. Any party hereto may change its address or designate
different or other persons or entities to receive copies by notifying the other
party and the Escrow Holder in a manner described in this Section; provided,
however, that such changes will only become effective five (5) business days
after a party's receipt of written notice of such address change.
17. MISCELLANEOUS.
(a) APPLICABLE LAW. This Contract shall be construed under and in
accordance with the laws of the State of California, and all obligations of the
parties created hereunder are performable in county where the Land is located.
(b) PARTIES BOUND. This Contract shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
(c) LEGAL CONSTRUCTION. In case any one or more of the provisions
contained in this Contract shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Contract
shall be construed as if such invalid, illegal, or unenforceable provision had
never been contained herein. Furthermore, in lieu of any such invalid, illegal
or unenforceable provision, there shall be automatically added to this Contract
a provision as similar to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
(d) ENTIRE AGREEMENT; AMENDMENTS. This Contract constitutes the
only agreement of the parties hereto with respect to the subject matter hereof
and supersedes any and all prior negotiations, understandings and written or
oral agreements between the parties respecting the subject matter hereof. This
Contract can be modified only by a written instrument duly executed by the
parties hereto.
(e) TIME OF ESSENCE. Time is of the essence in the performance of
the undertakings and obligations of the parties under this Contract.
(f) GENDER AND NUMBER. Words of any gender used in this Contract
shall be held and construed to include any other gender, and words in the
singular number shall be held to include the plural and vice versa, unless the
context requires otherwise.
(g) MERGER. Any and all rights of action of Buyer for any breach
by Seller of any representation, warranty or covenant contained in this Contract
shall survive the Closing for one (1) year after the Closing Date.
(h) MULTIPLE COUNTERPARTS. The parties may execute this Contract
in one or more identical counterparts, all of which when taken together will
constitute one and the same instrument.
10
11
(i) CONSTRUCTION. The parties hereto acknowledge that the parties
and their respective counsel have each reviewed and revised this Contract, and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Contract or any amendments or exhibits hereto.
(j) SATURDAYS, SUNDAYS AND HOLIDAYS. Whenever any determination is
to be made or action to be taken on a date specified in this Contract (other
than the determinations of the Effective Date), if such date shall fall upon a
Saturday, Sunday or holiday observed by federal savings banks in the State of
California, the date for such determination or action shall be extended to the
first business day immediately thereafter. Except as expressly noted herein to
the contrary, time periods herein referred to shall mean Pacific Standard Time.
(k) NO RECORDATION. Seller and Buyer agree that neither this
Contract nor any memorandum, affidavit or other evidence thereof shall be
recorded of public record in the County in which the Land is located. Should
Buyer ever record or attempt to record this Contract or a memorandum, affidavit
or other evidence thereof in violation of this Section 17.(k), such recordation
or attempted recordation shall constitute a default by Buyer hereunder and, in
addition to the other remedies provided hereunder, Seller shall have the right
to terminate this Contract by filing a notice of said termination of record in
the County or Counties in which the Land is located. In the event of such a
termination, the parties hereto shall be released from all further liabilities
and obligations hereunder except those that expressly survive a termination of
this Contract.
(l) FURTHER ASSURANCES. Seller and Buyer each covenant and agree
to sign, execute and deliver, or cause to be signed, executed and delivered, and
to do or make, or cause to be done or made, upon the written request of the
other party, any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by either
party hereto for the purpose of or in connection with consummating the
transactions described herein.
(m) NO PARTNERSHIP. This Contract does not and shall not be
construed to create a partnership, joint venture or any other relationship
between the parties hereto except the relationship of seller and buyer
specifically established hereby.
(n) HEADINGS; INCORPORATION BY REFERENCE. The headings contained
herein are solely for convenience of reference and shall not constitute a part
of this Contract nor shall they affect its meaning, construction or effect. All
of the exhibits attached to this Contract are by this reference incorporated
herein and made a part hereof for all purposes.
(o) FACSIMILE TRANSMISSION. A telecopied facsimile of a duly
executed counterpart of this Contract shall be sufficient to evidence the
binding agreement of each party to the terms hereof. However, each party agrees
to promptly deliver at least four (4) multiple originals (or multiple original
counterparts, if applicable) of this Contract to the Escrow Holder following the
delivery of a telecopied facsimile thereof.
(p) REPORTING REQUIREMENTS. Seller and Buyer agree to comply with
any and all reporting requirements applicable to the transaction which is the
subject of this Contract which are set forth in any law, statute, ordinance,
rule, regulation, order or determination of any governmental authority
including, without limitation, The International Investment Survey Act of 1976,
The Foreign Investment in Real Property Tax Act of 1980 and Seller and Buyer
further agree upon request to furnish the other party with evidence of such
compliance.
(q) SIGNATORY EXCULPATION. The signatory(ies) for Buyer is/are
executing this Contract in his/their capacity as representative of Buyer and not
individually and, therefore, shall have no personal or individual liability of
any kind in connection with this Contract and the transactions contemplated by
it. The signatory(ies) for Seller is/are executing this Contract in his/their
capacity as representative of Seller and not individually and, therefore, shall
have no personal or individual liability of any kind in connection with this
Contract and the transactions contemplated by it.
11
12
18. ASSIGNMENTS. Buyer shall not have the right to assign Buyer's interest
in this Contract without obtaining the prior written consent of Seller, which
consent may be withheld by Seller in Seller's sole and absolute discretion;
provided, however, Buyer shall have the right to assign Buyer's interest in this
Contract to an affiliate of Buyer or an entity controlled by either Buyer or an
affiliate of Buyer without the prior written consent of Seller. Buyer
acknowledges and agrees that (i) any assignment by Buyer in contravention of
this Section shall be void and shall not relieve Buyer of Buyer's obligations
and liabilities hereunder, and (ii) any assignment of this Contract permitted
hereby shall not relieve Buyer from its obligations set forth herein. To the
extent any assignment of Buyer's interest in this Contract is consented to in
writing by Seller, the term "Buyer" as used in this Contract shall include such
permitted assignee.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
13
EXECUTED in multiple originals as of the date or dates set forth below
and effective for all purposes as of the Effective Date.
SELLER:
BROMAR, INC., a California corporation
By:
------------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
BUYER:
RCPI OFFICE PROPERTIES, LLC, a Texas limited liability
company
By: Richmont Capital Partners I, L.P., a Delaware limited
partnership, its sole member
By: J.R. Investments Corp., its managing general
partner
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
13
14
EXHIBIT A
to Contract of Sale of Improved Property
DESCRIPTION OF LAND
[TO COME]
A-1
15
EXHIBIT B
to Contract of Sale of Improved Property
LEASE
[To Come]
B - 1
16
EXHIBIT C
to Contract of Sale of Improved Property
LIST OF CONTRACTS
[To Come]
C - 1
17
EXHIBIT D
to Contract of Sale of Improved Property
NON-FOREIGN CERTIFICATE
CERTIFICATION OF NON-FOREIGN STATUS
[TO COME]
D - 1
18
EXHIBIT E
SPECIAL WARRANTY DEED
For the consideration of the sum of Ten Dollars ($10.00) and other
valuable considerations received, Bromar, Inc., a California corporation
("Grantor"), does hereby convey to RCPI Office Properties, L.L.C., a Texas
limited liability company ("Grantee"), all of Grantor's right, title and
interest in and to the following described real property (the "Property")
situated in Maricopa County, Arizona, together with all improvements thereon and
all of Grantor's interest in any rights and privileges appurtenant thereto:
SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS
REFERENCE MADE A PART HEREOF
SUBJECT TO: (i) the standard printed exceptions set forth in
the ALTA Title Policy; (ii) general and special property taxes and assessments
for the current tax year; and (iii) the exceptions identified on EXHIBIT "B"
attached hereto.
AND GRANTOR hereby binds itself and its successors to warrant
and defend the title against all of the acts of Grantor and no other, subject to
the matters set forth above.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty
Deed to be executed this 17th day of February 2000.
GRANTOR:
BROMAR, INC., a California corporation
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
▇-▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ )
) Section:
County of Dallas )
On this 17th day of February, 2000, before me, the undersigned, a
Notary Public, appeared ______________________, known by me to be the person who
executed the foregoing Special Warranty Deed in his capacity as
______________________ of BROMAR, INC., and acknowledged that he executed the
same as the free act and deed of BROMAR, INC.
------------------------------------
Notary Public in and for said County
And State
My commission expires:
----------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
ARBITRATION PROVISIONS
This Exhibit F is attached to that certain Contract of Sale of Improved
Property (the "CONTRACT") by and between Bromar, Inc., a California corporation
("SELLER"), and RCPI OFFICE PROPERTIES, LLC, a California limited partnership
("BUYER"). Capitalized terms not defined herein shall have the meanings given to
them in the Contract.
Any controversy or claim arising out of or relating to the Contract, or
the breach thereof, shall be submitted for resolution by binding arbitration
(herein referred to as "DISPUTES SUBJECT TO ARBITRATION") and shall be settled
by arbitration administered by the American Arbitration Association (the "AAA")
under its Construction Industry Arbitration Rules (the "RULES"), and judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof in Dallas County, Texas. Seller and Buyer agree as
follows: (1) all Disputes Subject to Arbitration which are not resolved by
informal negotiation between the parties shall be submitted to arbitration
(using three arbitrators selected as provided below) administered by the AAA
under the Rules; and (2) both Seller and Buyer will abide by and perform any
award rendered by the arbitrators. The arbitrators shall have the right to
award any form of relief permitted to be awarded by any court of law having
jurisdiction. Any decision or award by the arbitrators shall be enforceable in
any court having jurisdiction in Dallas County, Texas.
In the event of a need for the submission of any Disputes Subject to
Arbitration to arbitration, the initiating party shall (1) give written notice
to the other party of its intention to arbitrate, which notice must contain a
statement setting forth the nature of the dispute, the amount involved, if any,
and the remedy sought, and (2) file at the Dallas, Texas regional office of the
AAA three copies of such written notice, three copies of the applicable
arbitration provisions of the Contract, and the appropriate filing fee as
provided by the Rules. The arbitration proceedings shall thereafter take place
as provided by the Rules, except as provided herein. As provided in the
Contract, the unsuccessful party in the arbitration proceedings shall promptly
pay to the successful party all costs and expenses (including, without
limitation, court costs and attorneys' fees) incurred therein; provided,
however, Seller and Buyer shall each be responsible for 50% of (i) all filing
fees related to such arbitration proceedings, and (ii) all fees payable to one
or more of the arbitrators.
The Parties agree to arbitrate in accordance with the Rules with the
following exceptions:
(1) Three arbitrators shall be selected from the AAA's "Blue Ribbon
National Panel" within thirty (30) days from the date of demand for
arbitration. Each Party shall select one arbitrator and these two arbitrators
shall select the third.
(2) The Parties agree to engage in document production pursuant to the
Federal Rules of Civil Procedure. In the event of any dispute over document
production, such will be resolved by the arbitrators. The amount of depositions
will be limited to five (5) per Party, with no deposition lasting longer than
eight (8) hours, unless otherwise agreed.
(3) The arbitration hearings shall be continuous on a daily basis, with
each day of hearings to consist of eight (8) hours of presentation of evidence,
not to exceed five (5) days of hearings for each Party, subject to adjournment
for weekends, holidays or other days to be mutually agreed.
(4) The arbitrator(s) shall render a decision no later than thirty (30)
days after the conclusion of the hearings, which decision shall be in writing
and give the reasons for the decision reached.
(5) The submittal of legal briefs shall be subject to mutual agreement
of the Parties, but in no event shall the briefs delay the decision in this
matter.
F - 1
21
EXHIBIT G
This Exhibit G is attached to that certain Contract of Sale of Improved
Property by and between Bromar, Inc., a California corporation, and RCPI Office
Properties, LLC, a Texas limited liability company
TITLE POLICY ENDORSEMENTS
1. CLTA END. 103.7
2. LTAA END. 17
3. END. 7 - PROPERTY SAME AS SURVEY
4. SPECIAL END. 5
5. END. 7 -SURFACE RIGHTS TO EXTRACT WATER
6. SPECIAL END. 2
7. LTAA END. 7
G - 1
22
EXHIBIT H
This Exhibit H is attached to that certain Contract of Sale of Improved
Property by and between Bromar, Inc., a California corporation, and RCPI Office
Properties, LLC, a Texas limited liability company
PERMITTED EXCEPTIONS
This Exhibit H is attached to that certain Contract of Sale of Improved
Property (the "CONTRACT") by and between Bromar, Inc., a California corporation
("SELLER"), and RCPI OFFICE PROPERTIES, LLC, a California limited partnership
("BUYER"). Capitalized terms not defined herein shall have the meanings given to
them in the Contract.
[TO COME]
Document #318283 v1
Client Matter 012966-0000
H - 1
