AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 11th
day of March, 1997, by and between RREEF AMERICA L.L.C., a Delaware limited
liability company ("Purchaser"), and TYSONS CORNER LIMITED PARTNERSHIP, an
Illinois limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Thirty-One Million Seventy Thousand And No/100 Dollars
($31,070,000.00) (the "Purchase Price"), that certain property commonly known
as 0000 Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx, legally described on Exhibit A
attached hereto and all buildings, structures and other improvements on such
property and all equipment, machinery and other apparatus used in connection
with the operation and occupancy of such property (collectively, the
"Property"). Included in the Purchase Price is all of Seller's right, title and
interest in and to any personal property located within or used in connection
with the Property, including without limitation, all of the personal property
set forth on Exhibit B attached hereto (the "Personal Property"), all right,
title and interest of Seller, if any, in and to: (a) all open or proposed
xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, easements, strips, gores and
rights-of-way in, on, across, in front of, contiguous to, abutting or adjoining
the Property, (b) all plans and specifications, (c) all transferable licenses,
permits, guaranties and warranties relating to the zoning, land use, ownership,
operation, occupancy, construction or maintenance of the Property, (d) all
fixtures, equipment (including computers) and supplies owned by Seller located
on the Property, (e) all leases, subleases, lease guaranties, rights and
privileges of Seller pertaining to the Property, (f) those service contracts
described in Exhibit H, which Purchaser prior to the Closing expressly agrees
to assume at Closing (subject to Section 9.2.3 herein); and (g) all other
tangible and intangible assets of any nature relating to the Property or the
Personal Property, including without limitation, all of Seller's rights in all
engineering studies, reports, drawings and prints relating to the construction
of the Property, all copyrights, logos, designs, trademarks, trade names,
service marks and all goodwill associated with the Property, all other works of
art, graphic designs and other intellectual or intangible property (excluding,
however, all computer software, databases, programs and other documentation
used by Seller or Seller's Manager) used by Seller in connection with the
Property, and all claims and causes of action arising out of or in connection
with the Property (other than claims for delinquent rents and other tenant
obligations for which Seller has received no credit pursuant to Paragraph
12.2).
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Not later than two (2) business days after Purchaser has received
from Seller a fully executed original of this Agreement, the sum of Fifty
Thousand and No/100 Dollars ($50,000.00) (the "Xxxxxxx Money") to be held in
escrow ("Escrow") established at Near North Title Corporation ("Escrow Agent")
by and in accordance with the provisions of the Escrow Agreement ("Escrow
Agreement") attached hereto as Exhibit C.
2.2. On the second (2nd) business day after the expiration of the
Inspection Period, the sum of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) to be held in Escrow by and in accordance with the Escrow
Agreement (from and after the additional deposit of $250,000.00 by Purchaser,
any reference to "Xxxxxxx Money" shall mean $300,000.00).
2.3. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a title commitment for an
owner's standard title insurance policy issued by Near North National Title
Corporation, as agent for First American Title Insurance Corporation
(hereinafter referred to as "Title Insurer") dated February 4, 1997 for the
Property (the "Title Commitment"). The Title Commitment shall be conclusive
evidence of good title as therein shown as to all matters to be insured by the
title policy, subject only to the exceptions therein stated. On the Closing
Date, Seller shall cause the Title Insurer to deliver to Purchaser an ALTA
extended coverage owner's policy of title insurance (1970, if available) in
conformance with the previously delivered Title Commitment, subject to
Permitted Exceptions and Unpermitted Exceptions (as said terms are defined
below) waived by Purchaser (the "Title Policy"). Seller shall pay the costs of
the Title Commitment and the portion of the Title Policy premium attributable
to standard coverage and Purchaser shall pay for the cost of any endorsements
(other than endorsements obtained by Seller in order to insure over Unpermitted
Exceptions) to, and extended coverage on, the Title Policy.
3.2. Purchaser has received a survey of the Property prepared by Xxxxxx
Consulting dated October 19, 1996 (the "Existing Survey"). Seller shall pay
the costs of the Existing Survey and Seller, at Seller's cost, shall cause the
Existing Survey to be updated and certified to Purchaser, as required by
Purchaser, and Seller shall deliver the certified survey (the "Updated Survey")
to Purchaser within 20 days after the date hereof. The Updated Survey shall be
made in accordance with Purchaser's survey standards furnished to Seller.
3.3. The obligation of Purchaser and Seller to pay various costs set forth
in Paragraphs 3.1 and 3.2 shall survive the termination of this Agreement.
3.4. On or before the date ten (10) business days after Purchaser shall
have received from Seller the Updated Survey (the "Title Date") and all
underlying documents described in the Title Commitment, Purchaser shall advise
Seller in writing if any exceptions to title shown on the Title Commitment are
disapproved by Purchaser or any matters on the Updated Survey are unacceptable
to Purchaser. If Purchaser does not so advise Seller on or before the Title
Date, all exceptions to title shown on the Title Commitment shall be deemed
Permitted Exceptions and all matters shown on the Existing Survey shall be
deemed acceptable to Purchaser. For purposes of this Agreement, "Permitted
Exceptions" shall mean: (a) general real estate taxes, association assessments,
special assessments, special district taxes and related charges not yet due and
payable; (b) matters shown on the Updated Survey not disapproved by Purchaser
in writing as provided above; (c) matters caused by the actions of Purchaser;
and (d) the title exceptions set forth in the Title Commitment not disapproved
in writing by Purchaser as provided above, to the extent that same affect the
Property. Seller agrees to execute a standard Title Insurer's Owner's
statement in the form customarily used in Virginia in order to assist Purchaser
in obtaining extended coverage but shall not be obligated to incur any cost or
liability (other than on account of the Owner's statement) in providing such
assistance. All exceptions to title other than those described above in this
Paragraph as Permitted Exceptions shall be referred to as "Unpermitted
Exceptions". With respect to Unpermitted Exceptions for liens and encumbrances
of a definite or ascertainable amount securing borrowed money, mechanics liens
or for unpaid real estate taxes and assessments arising out of an affirmative
action of Seller (such as execution of a mortgage, entering into a contract for
construction work on the Property or non-payment of real estate taxes)
("Monetary Unpermitted Exceptions"), the indebtedness giving rise to such
Monetary Unpermitted Exceptions will be paid at the Closing and the lien
thereby released and removed. Any Unpermitted Exceptions to title which are
insured over by the Title Insurer and reasonably approved as such by Purchaser,
as provided herein, shall be deemed Permitted Exceptions. If Seller fails to
have any Unpermitted Exceptions (other than a Monetary Unpermitted Exception)
removed or insured over prior to the date thirty (30) days after Seller's
receipt of Purchaser's notice of Unpermitted Exceptions, Purchaser may elect,
by written notice to Seller given not later than ten (10) days after the end of
such 30 day period, (i) to accept title as it then is (in which case such
exceptions shall be deemed "Permitted Exceptions"), or (ii) to terminate this
Agreement, and all of the rights and remedies of the parties hereto, except for
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in Paragraph 7 and the Xxxxxxx Money, and all accrued interest
thereon, shall be returned to Purchaser. In the event Seller fails to have any
Unpermitted Exception (other than a Monetary Unpermitted Exception) removed or
insured over prior to the Closing, the time of the Closing shall be delayed to
give effect to said aforementioned time periods. Purchaser shall have the
right to pay Monetary Unpermitted Exceptions at Closing, if Seller fails to do
so, and the Purchase Price shall be reduced as a result of any such payments
made by Purchaser.
4. PAYMENT OF CLOSING COSTS.
In addition to the costs set forth in Paragraphs 3.1 and 3.2, Seller and
Purchaser shall each pay for one-half of the costs of the documentary or
transfer stamps to be paid with reference to the "Deed" (hereinafter defined)
and all other stamps, intangible, transfer, documentary, recording, sales tax
and surtax imposed by law with reference to any other sale documents delivered
in connection with the sale of the Property to Purchaser, except that any
Grantor's tax shall be paid by Seller. Except as otherwise provided in
Xxxxxxxxx 0, Xxxxxxxxx shall pay all other charges of the Escrow Agent in
connection with this transaction. Seller and Purchaser shall also pay closing
costs as described in Paragraph 8. Purchaser shall not be required to incur
title charges or escrow fees in excess of those that would be charged by Title
Insurer and Escrow Agent on account of using Near North National Title Company.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment or the Updated Survey discloses any new Unpermitted Exception,
Seller shall have thirty (30) days from the date of Purchaser's notification to
Seller of such new Unpermitted Exception (which will be given by Purchaser, if
at all, not later than five (5) business days after Purchaser's receipt of the
date-down to the Title Commitment or the Updated Survey and any related
underlying documents, as applicable), at Seller's expense, to (i) bond over
with a bonding company reasonably satisfactory to Purchaser, cure and/or have
any Unpermitted Exceptions which, in the aggregate, do not exceed $75,000.00,
removed from the Title Commitment or to have the Title Insurer commit to insure
against loss or damage that may be occasioned by such Unpermitted Exceptions on
the condition that the form of endorsement shall be reasonably satisfactory to
Purchaser, or (ii) have the right, but not the obligation, to bond over (with a
bonding company reasonably satisfactory to Purchaser), cure and/or have any
Unpermitted Exceptions which, in the aggregate, equal or exceed $75,000.00,
removed from the Title Commitment or to have the Title Insurer commit to insure
against loss or damage that may be occasioned by such Unpermitted Exceptions on
the condition that the form of endorsement shall be reasonably satisfactory to
Purchaser. In such event, the time of Closing shall be delayed, if necessary,
to give effect to said aforementioned time periods. If Seller fails to cure or
have said Unpermitted Exception removed or have the Title Insurer commit to
insure as specified above within said thirty (30) day period or if Seller
elects not to exercise its rights under (ii) in the preceding sentence,
Purchaser may terminate this Agreement upon notice to Seller within five (5)
days after the expiration of said thirty (30) day period. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to take title subject to said Unpermitted Exception.
Purchaser may, at Purchaser's sole cost and expense, and without any liability
to Seller, bond over any Unpermitted Exception. If Purchaser terminates this
Agreement in accordance with the terms of this Paragraph 5.1, this Agreement
shall become null and void without further action of the parties and all
Xxxxxxx Money theretofore deposited into the Escrow by Purchaser together with
any interest accrued thereon, shall be returned to Purchaser, and neither party
shall have any further liability to the other, except for Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in Paragraph 7.
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by limited warranty deed (the "Deed") in the form of Exhibit E and
otherwise in recordable form subject only to the Permitted Exceptions and any
Unpermitted Exceptions waived by Purchaser.
5.3. Seller agrees that if any special assessment applicable to the
Property is enacted prior to the Closing Date, notwithstanding Paragraph
3.4(b), Purchaser shall have the right to terminate this Agreement by written
notice to Seller within five (5) business days after Purchaser has actual
notice of such enactment. If this Agreement is terminated in accordance with
the terms of this Paragraph 5.3, this Agreement shall be null and void without
further action of the parties and all Xxxxxxx Money, together with accrued
interest thereon shall be returned to Purchaser, and neither party shall have
any further liability to the other, except for Purchaser's obligation to
indemnify Seller, as more fully set forth in Paragraph 7.1.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property to Purchaser's reasonable satisfaction
(in which case the Closing Date shall be extended until completion of such
restoration) or to assign and transfer to Purchaser on the Closing Date all of
Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of such fire or casualty, and Seller shall pay to
Purchaser at the Closing the amount of Seller's insurance deductible. Seller
shall promptly notify Purchaser in writing of any such fire or other casualty
and Seller's determination of the cost to repair the damage caused thereby. In
the event of damage to the Property by fire or other casualty prior to the
Closing Date, repair of which would cost in excess of $100,000.00 (as
determined by Seller in good faith), then this Agreement may be terminated at
the option of Purchaser, which option shall be exercised, if at all, by
Purchaser's written notice thereof to Seller within ten (10) business days
after Purchaser receives written notice of such fire or other casualty and
Seller's determination of the amount of such damages, and upon the exercise of
such option by Purchaser this Agreement shall become null and void, the Xxxxxxx
Money deposited by Purchaser shall be returned to Purchaser together with
interest thereon, and neither party shall have any further liability or
obligations hereunder. In the event that Purchaser does not exercise the
option set forth in the preceding sentence, the Closing shall take place on the
Closing Date and Seller shall assign and transfer to Purchaser on the Closing
Date all of Seller's right, title and interest in and to all insurance proceeds
paid or payable to Seller on account of the fire or casualty, and Seller shall
pay to Purchaser at the Closing the amount of Seller's insurance deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated or threatened by a
notice to Seller from a governmental authority which might result in the taking
of any part of the Property or the taking or closing of any right of access to
the Property, Seller shall immediately notify Purchaser of such occurrence. In
the event that the taking of any part of the Property shall: (i) materially
impair access to the Property; (ii) cause any material non-compliance with any
applicable law, ordinance, rule or regulation of any federal, state or local
authority or governmental agencies having jurisdiction over the Property or any
portion thereof or cause the property to be a non-conforming use or structure;
(iii) materially and adversely impair the use of the Property as it is
currently being operated, or (iv) result in the loss of a portion of a
building, parking spaces or improvements constituting an amenity (hereinafter
collectively referred to as a "Material Event"), Purchaser may:
6.2.1. terminate this Agreement by written notice to Seller, in
which event the Xxxxxxx Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
6.2.3. Purchaser shall notify Seller, within ten (10) business
days after Purchaser's receipt of Seller's notice of condemnation or eminent
domain event under Paragraphs 6.2.1 or 6.2.2, whether Purchaser elects to
exercise its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be
delayed, if necessary, until Purchaser makes such election. If Purchaser fails
to make an election within such ten (10) business day period, Purchaser shall
be deemed to have elected to exercise its rights under Paragraph 6.2.2. If
between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1. During the period commencing on January 29, 1997 and ending at 5:00
p.m. Chicago time on March 20, 1997 (said period being herein referred to as
the "Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser have entered and may continue
to enter upon the Property, at any reasonable time and upon reasonable prior
notice to Seller, to inspect the Property, the Personal Property and all other
property to be purchased by Purchaser pursuant to this Agreement, including a
review of leases located at the Property, and to conduct and prepare such
studies, tests and surveys as Purchaser may deem reasonably necessary and
appropriate. In connection with Purchaser's review of the Property, Seller
agrees to deliver to Purchaser copies of the current rent roll for the
Property, the current delinquency report for the Property, the most recent real
estate tax and insurance bills, utility account numbers, service contracts, and
unaudited year end 1996 and year-to-date (through January 31, 1997) operating
statements.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and
expense, and if as a result of Purchaser's investigations and inspections of
the Property there is damage or injury to persons or property, Purchaser shall
restore the Property to the condition existing prior to the performance of such
tests or investigations by or on behalf of Purchaser. Purchaser shall not
allow or permit any liens or encumbrances to arise or exist against the
Property or any part thereof as a result of its inspections. Purchaser shall
defend, protect, indemnify and hold Seller and any affiliate, parent of Seller,
and all shareholders, employees, officers and directors of Seller or Seller's
affiliate or parent (hereinafter collectively referred to as "Affiliate of
Seller") harmless from any and all actual loss, liability or damages (including
without limitation, reasonable attorney's fees, court costs and costs of appeal
but excluding consequential damages) suffered or incurred by Seller or
Affiliates of Seller for injury to persons or property caused by Purchaser or
Purchaser's agents entry on the Property in the course of performing any test
or inspection on the Property, including, without limitation, mechanics liens,
provided that Purchaser also agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature which Purchaser's servants, agents or
employees may have suffered as a result of Purchaser's inspection of the
Property. Purchaser shall undertake its obligation to defend set forth in the
preceding sentence using attorneys selected by Seller, in Seller's reasonable
discretion.
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing not less than
$1,000,000 of comprehensive general public liability insurance insuring the
person, firm or entity performing such tests, studies and investigations and
listing Seller and Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied with the results of the tests, studies or
investigations performed or information received pursuant to this Paragraph
7.1, Purchaser shall have the right to terminate this Agreement by giving
written notice of such termination to Seller at any time prior to the
expiration of the Inspection Period. If written notice is not received by
Seller pursuant to this Paragraph 7.1 prior to the expiration of the Inspection
Period, then the right of Purchaser to terminate this Agreement pursuant to
this Paragraph 7.1 shall be waived. If Purchaser terminates this Agreement by
written notice to Seller prior to the Title Date as provided above or if
Purchaser shall terminate this Agreement pursuant to Paragraph 3.4, the Xxxxxxx
Money shall be immediately paid to Purchaser, together with any interest earned
thereon, and neither Purchaser nor Seller shall have any right, obligation or
liability under this Agreement, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in this Paragraph 7.1.
Notwithstanding anything contained herein to the contrary, the terms of this
Paragraph 7.1, shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
7.2. Except with respect to the representations and warranties contained
herein, Purchaser acknowledges and agrees (a) that it will be purchasing the
Property and the Personal Property based solely upon its inspections and
investigations of the Property and the Personal Property, and (b) that
Purchaser will be purchasing the Property and the Personal Property "AS IS" and
"WITH ALL FAULTS", based upon the condition of the Property and the Personal
Property as of the date of this Agreement, wear and tear and loss by fire or
other casualty or condemnation excepted. Without limiting the foregoing,
Purchaser acknowledges that, except as may otherwise be specifically set forth
elsewhere in this Agreement, neither Seller nor its consultants, brokers or
agents have made any representations or warranties of any kind upon which
Purchaser is relying as to any matters concerning the Property or the Personal
Property, including, but not limited to, the condition of the land or any
improvements comprising the Property, the existence or non-existence of
"Hazardous Materials" (as hereinafter defined), economic projections or market
studies concerning the Property, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property, water or water
rights, topography, drainage, soil, subsoil of the Property, the utilities
serving the Property or any zoning or building laws, rules or regulations or
"Environmental Laws" (hereinafter defined) affecting the Property. Seller
makes no representation or warranty that the Property complies with Title III
of the Americans with Disabilities Act or any fire code or building code.
Except with respect to a breach by Seller of any representation or warranty
expressly contained herein relating to Environmental Laws or Hazardous
Materials, Purchaser hereby releases Seller and the Affiliates of Seller from
any and all liability in connection with any claims which Purchaser may have
against Seller or the Affiliates of Seller relating directly or indirectly to
the existence of asbestos or Hazardous Materials on, or environmental
conditions of, the Property, whether known or unknown. Except with respect to
a breach by Seller of any representation or warranty expressly contained herein
relating to Environmental Laws or Hazardous Materials, Purchaser hereby agrees
not to assert any claims for contribution, cost recovery or otherwise, against
Seller or the Affiliates of Seller, relating directly or indirectly to the
existence of asbestos or Hazardous Materials on, or environmental conditions
of, the Property, whether known or unknown. As used herein, "Environmental
Laws" means all federal, state and local statutes, codes, regulations, rules,
ordinances, orders, standards, permits, licenses, policies and requirements
(including consent decrees, judicial decisions and administrative orders)
relating to the protection, preservation, remediation or conservation of the
environment or worker health or safety, all as amended or reauthorized, or as
hereafter amended or reauthorized, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency
Planning and Community Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C.
Section 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. Section 7401
et seq., the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C.
Section 1251 et seq., the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
Section 2601 et seq., the Safe Drinking Water Act ("Safe Drinking Water Act"),
42 U.S.C. Section 300f et seq., the Atomic Energy Act ("AEA"), 42 U.S.C.
Section 2011 et seq., the Occupational Safety and Health Act ("OSHA"),
29 U.S.C. Section 651 et seq., and the Hazardous Materials Transportation Act
(the "Transportation Act"), 49 U.S.C. Section 1802 et seq. As used herein,
"Hazardous Materials" means: (1) "hazardous substances," as defined by CERCLA;
(2) "hazardous wastes," as defined by RCRA; (3) any radioactive material
including, without limitation, any source, special nuclear or by-product
material, as defined by AEA; (4) asbestos in any form or condition;
(5) polychlorinated biphenyls; (6) petroleum, crude oil or any fraction or
derivative of petroleum or crude oil; and (7) any other material, substance or
waste to which liability or standards of conduct may be imposed under any
Environmental Laws. Notwithstanding anything contained herein to the contrary,
the terms of this Paragraph 7.2 shall survive the Closing and the delivery of
the Deed and termination of this Agreement.
7.3. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except as expressly set forth herein,
Seller makes no representation or warranty that such material is complete or
accurate or that Purchaser will achieve similar financial or other results with
respect to the operations of the Property, it being acknowledged by Purchaser
that Seller's operation of the Property and allocations of revenues or expenses
may be vastly different than Purchaser may be able to attain. Purchaser
acknowledges that it is a sophisticated and experienced purchaser of real
estate and further that Purchaser has relied upon its own investigation and
inquiry with respect to the operation of the Property, except with respect to
the representations and warranties of Seller expressly contained herein and
releases Seller and the Affiliates of Seller from any liability with respect to
such historical information, except with respect to a breach of a
representation or warranty of Seller contained herein. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.3
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.4. Seller has provided to Purchaser the following existing reports:
Phase I Environmental Site Assessment prepared by Law Associates, Inc. as
Project No. 0000-0000-00, dated August 6, 1992 and Report of Facility Survey to
Identify Asbestos-Containing Materials Within 0000 Xxxxxxxxxx Xxxxx, dated
October 1, 1992, prepared by Law Engineering, Inc. as Project No. 000-0000-00
(collectively, the "Existing Report"). Seller makes no representation or
warranty concerning the accuracy or completeness of the Existing Report.
Purchaser hereby releases Seller and the Affiliates of Seller from any
liability whatsoever with respect to the Existing Report, or, including,
without limitation, the matters set forth in the Existing Report, and the
accuracy and/or completeness of the Existing Report. Furthermore, Purchaser
acknowledges that it will be purchasing the Property with all faults disclosed
in the Existing Report. Notwithstanding anything contained herein to the
contrary, the terms of this Paragraph 7.4 shall survive the Closing and the
delivery of the Deed and termination of this Agreement. Nothing in the
preceding limits Purchaser's right to terminate this Agreement in the time and
manner specified in Paragraph 7.1.
8. CLOSING. The closing of this transaction (the "Closing") shall be on
April 16, 1997 (the "Closing Date"), at the office of the Escrow Agent, or on
such other date prior to April 16, 1997 as may be agreed to by Seller and
Purchaser (which date shall be the "Closing Date" for purposes of this
Agreement) at which xxxx Xxxxxx shall deliver possession of the Property to
Purchaser. This transaction shall be closed through the Escrow with the Escrow
Agent in accordance with the general provisions of the usual and customary form
of deed and money escrow for similar transactions in Virginia, or at the option
of either party, the Closing shall be a "New York style" closing at which the
Purchaser shall wire the Purchase Price to Escrow Agent on the Closing Date and
prior to the release of the Purchase Price to Seller, Purchaser shall receive
the Title Policy or marked up commitment dated the date of the Closing Date.
In the event of a New York style closing, Seller shall deliver to Title Insurer
any customary affidavit in connection with a New York style closing. All
closing and escrow fees shall be divided equally between the parties hereto.
9. CLOSING DOCUMENTS.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
and deliver to one another a joint closing statement. Seller shall provide
Purchaser with an estimated closing statement within ten (10) days after
receipt of a written request by Purchaser and in any event no later than April
14, 1997. In addition, Purchaser shall deliver to Seller the balance of the
Purchase Price, an assumption of the documents set forth in Paragraph 9.2.3 and
9.2.4 and such other documents as may be reasonably required by the Title
Insurer in order to consummate the transaction as set forth in this Agreement.
9.2. On the Closing Date, Seller shall deliver to Purchaser the following
(each of which shall be a condition to Purchaser's obligations under this
Agreement):
9.2.1. the Deed (in the form of Exhibit E attached hereto),
subject to Permitted Exceptions and those Unpermitted Exceptions waived by
Purchaser;
9.2.2. a xxxx of sale conveying the Personal Property (in the
form of Exhibit F attached hereto);
9.2.3. assignment and assumption of intangible property (in the form
attached hereto as Exhibit G), including, without limitation, the service
contracts set forth on Exhibit H;
9.2.4. an assignment and assumption of leases and security deposits
in the form attached hereto as Exhibit I;
9.2.5. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.6. original, and/or copies of, leases affecting the Property in
Seller's possession (which shall be delivered at the Property);
9.2.7. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy, including the Owners statement
referred to in Paragraph 3.4;
9.2.8. possession of the Property to Purchaser, subject to the terms
of leases;
9.2.9. evidence of the termination and leasing of the management
agreement;
9.2.10. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit K);
9.2.11. an updated rent roll;
9.2.12. an insured closing letter;
9.2.13. State of Virginia Real Estate Transfer Declaration;
9.2.14. A certificate of Seller, dated as of the Closing Date,
reaffirming that all representations and warranties of Seller under this
Agreement are true, correct and complete as of the Closing Date in all material
respects, subject to the terms of Section 16.4; and
In addition to the above deliveries, Seller shall use commercially
reasonable efforts to obtain a replacement letter of credit from Verner,
Liipfert, Bernhard, XxXxxxxxxx and Hand, Chartered, in the amount of Thirteen
Thousand Four Hundred Dollars ($13,400.00) in favor of Purchaser. In the event
Seller fails to obtain such letter of credit, Seller shall not be liable to
Purchaser for the amount of the letter of credit.
10. PURCHASER'S DEFAULT. THE XXXXXXX MONEY DEPOSITED INTO THE ESCROW PURSUANT
TO THIS AGREEMENT IS TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS
OBLIGATIONS AND UNDERTAKINGS UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT
OF THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT WHICH RESULTS IN ESCROW
FAILING TO CLOSE ON OR BEFORE THE CLOSING DATE, SELLER SHALL RETAIN ALL OF THE
XXXXXXX MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY
OTHER REMEDY, EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND
RESTORE THE PROPERTY AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE
AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER,
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY
PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE XXXXXXX MONEY
HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT UNDER THIS AGREEMENT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF
ALL XXXXXXX MONEY TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS
AGREEMENT SHALL THEN BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES
SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR
PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET
FORTH MORE FULLY IN PARAGRAPH 7 AND THE RIGHT OF PURCHASER TO RECEIVE FROM
SELLER ITS ACTUAL, DOCUMENTED THIRD PARTY EXPENSES INCURRED IN THE PERFORMANCE
OF ITS DUE DILIGENCE HEREUNDER AND THE PREPARATION OF THE AGREEMENT, NOT TO
EXCEED $75,000 IN THE AGGREGATE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, IF SELLER'S DEFAULT IS ITS WILLFUL REFUSAL TO DELIVER ANY OF THE
CONVEYANCE DOCUMENTS SET FORTH IN PARAGRAPHS 9.2.1 THROUGH 9.2.13, INCLUSIVE,
THEN PURCHASER WILL BE ENTITLED TO XXX FOR SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents [i.e. unpaid on the Closing
Date], but including prepaid rents); refundable security deposits (which will
be assigned to and assumed by Purchaser and credited to Purchaser at Closing);
parking fees; service contracts described on Exhibit H; water and other utility
charges; fuels; prepaid operating expenses; real and personal property taxes
prorated on a "net" basis (i.e., adjusted for all tenant's liability, if any,
for such items); operating expenses which are reimbursable by the tenants for
the period prior to the Closing Date less any amount previously paid by the
tenants shall be credited to Seller; and other similar items shall be adjusted
ratably as of 11:59 p.m. on the date prior to the Closing Date, and credited
against the balance of the cash due at Closing. Assessments payable in
installments which are due subsequent to the Closing Date shall be paid by
Purchaser. If the amount of any of the items to be prorated is not then
ascertainable, the adjustments thereof shall be on the basis of the most recent
ascertainable data. All prorations will be final except as to delinquent rent
referred to in Paragraph 12.2 below, and except as provided below in this
section. The parties agree to make such post-closing readjustments as may be
required due to errors and omissions in the prorations. At any time prior to
October 31, 1997, Purchaser, at Purchaser's cost, may conduct an audit, at
reasonable times and upon reasonable advance notice to Seller, of Seller's
books and records to verify the accuracy of the prorations and readjustments to
the prorations required under this Paragraph.
12.2. All rent paid following the Closing Date by any tenant of the
Property who is indebted under a lease for basic rent for any period prior to
the Closing Date after the payment to Purchaser of all current rent and any
past due rent owed to Purchaser shall be deemed a "Post-Closing Receipt". At
Closing, Seller shall provide Purchaser with a statement of all delinquent
rentals as of the Closing. Within fifteen (15) days following each receipt by
Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing
Receipt to Seller. Purchaser shall use commercially reasonable efforts to
collect all amounts which, upon collection, would constitute Post-Closing
Receipts hereunder but shall have no obligation to bring legal action. If
Purchaser expends funds to collect rent due prior to the Closing Date,
Purchaser shall be reimbursed its collection expenses from any delinquent rent
collected. Within 120 days after the Closing Date, Purchaser shall deliver to
Seller a reconciliation statement of Post-Closing Receipts through the first 90
days after the Closing Date. Upon the delivery of the Post-Closing Receipts
reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts
owing to Seller and not previously delivered to Seller in accordance with the
terms hereof. Seller retains the right, at Seller's cost, to conduct an audit,
at reasonable times and upon reasonable advance notice to Purchaser, of
Purchaser's books and records to verify the accuracy of the Post-Closing
Receipts reconciliation statement. Paragraph 12 of this Agreement shall
survive the Closing and the delivery and recording of the deed.
12.3. Purchaser shall receive at Closing a credit equal to the amount
of any unsatisfied obligations for outstanding tenant improvement and leasing
commission obligations set forth in Exhibit N which are identified as Seller's
obligation ("Seller's Pre-Existing Obligations"). Purchaser agrees to assume
(without a credit from Seller) the payment of those outstanding tenant
improvement and leasing commission obligations set forth in Exhibit N which are
identified as Purchaser's obligation ("Purchaser's Pre-Existing Obligations").
To the extent Seller pays any amounts toward Purchaser's Pre-Existing
Obligations prior to Closing and provides evidence of such payment satisfactory
to Purchaser then Seller shall receive a credit from Purchaser therefor.
Seller shall receive a credit, if any, as provided in Paragraph 25. Purchaser
shall assume at Closing all third party construction contracts for the
performance of tenant improvement work and leasing commission agreements in
connection with those leases (i) which give rise to Seller's Pre-Existing
Obligations, (ii) which give rise to Purchaser's Pre-Existing Obligations and
(iii) for which Purchaser is assuming the obligations pursuant to Paragraph 25
herein.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller. Any
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 10 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to (i) any entity in which Purchaser owns a controlling
interest or for which Purchaser is the investment advisor, or (ii) the Los
Angeles County Employees Retirement Association ("LACERA") or a wholly-owned
subsidiary of LACERA, provided that Purchaser remains liable for and the
assignee assumes the obligations of Purchaser hereunder with respect to
indemnifications and amounts payable in the event of a termination of this
Agreement, including, without limitation, damages. Upon such assignment,
Purchaser (but not the assignee) shall be released from all other liabilities
and obligations hereunder. If any assignee of Purchaser under this Agreement
petitions or applies for relief in bankruptcy or Assignee is adjudicated as a
bankrupt or insolvent, or Assignee files any petition, application for relief
or answer-seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future federal, state or other statute, law, code
or regulation relating to bankruptcy, insolvency, or other relief for debtors
(collectively, a "Bankruptcy Filing") on or before the Closing Date, said
Bankruptcy Filing shall be a default under this Agreement and Purchaser shall
indemnify Seller for all costs, attorney's fees and expenses of Seller
resulting from Seller's efforts to obtain the Xxxxxxx Money as liquidated
damages and to clear title to the Property from any encumbrance resulting from
the Bankruptcy Filing.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Insignia Mortgage and Investment Company ("Seller's Broker") (to
be paid by Seller). Purchaser has informed Seller that Purchaser has agreed to
pay CB Commercial a fee, prior to or at Closing, in the event the transaction
contemplated by this Agreement closes, and Purchaser shall, prior to Closing,
provide Seller with a copy of its broker's agreement with CB Commercial.
Seller's commission to Seller's Broker shall only be payable out of the
proceeds of the sale of the Property in the event the transaction set forth
herein closes. Purchaser shall indemnify, defend and hold Seller and
Affiliates of Seller harmless from any claim whatsoever (including without
limitation, reasonable attorney's fees, court costs and costs of appeal) from
anyone claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to Seller's Broker. Seller shall indemnify, defend and
hold Purchaser harmless from any claim whatsoever (including without
limitation, reasonable attorney's fees, court costs and costs of appeal) from
anyone claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to CB Commercial. The indemnifying party shall
undertake its obligations set forth in this Paragraph 15 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 15 will survive the Closing and
delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such actual knowledge of Xxx Xxxxxx (asset manager)
("Seller's Representative") or notice that has actually been received or sent
by Seller's Representative, and any representation or warranty of the Seller is
based upon those matters of which the Seller's Representative has actual
knowledge or receipt. Except as set forth in the previous two sentences, any
knowledge or notice given, had or received by any of Seller's agents, servants
or employees shall not be imputed to Seller, the general partner or limited
partners of Seller, the subpartners of the general partner or limited partners
of Seller or Seller's Representative. A copy of Paragraph 16.2 shall be
delivered to the on-site manager of the Property within two (2) business days
after the execution by Seller of this Agreement, with a request to advise Xxx
Xxxxxx within two (2) business days after receipt by the on-site manager as to
the accuracy and truthfulness of the representations and warranties. If the
on-site manager indicates that any of the representations or warranties were
incorrect, Seller shall notify Purchaser as to the response of the on-site
manager by no later than March 10, 1997. If the on-site manager responds that
any of the representations or warranties were incorrect then the terms of
Paragraph 16.4 herein shall apply. If Seller fails to so notify Purchaser,
Purchaser shall be entitled to conclude that the on-site manager reviewed the
representations and warranties and that they are correct.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge and which shall,
subject to Paragraph 16.4, be remade at Closing, and shall survive Closing to
the extent set forth in Paragraph 16.5:
(i) Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the Property,
except as set forth in Exhibit O;
(ii) Seller has the full right, power and authority to execute and deliver
this Agreement (and the documents and instruments to be executed and delivered
by Seller pursuant hereto) and consummate the transactions contemplated herein,
and this Agreement (and the documents and instruments to be executed and
delivered by Seller pursuant hereto) is the legal, valid and binding obligation
of Seller, enforceable in accordance with its terms, and does not and will not
at Closing violate or conflict with any provisions of any agreement to which
Seller is a party;
(iii) the rent roll attached hereto as Exhibit M (the "Rent Roll")
(which Seller will update as of March 14, 1997 and deliver such updated Rent
Roll to Purchaser by March 17, 1997, and which Seller will again update as of
the Closing Date) is accurate and complete but only as to the information
contained thereon as of the date set forth thereon;
(iv) Seller has not received written notice from any governmental
authority that the Property or the use and operation of the Property is in
violation of applicable building codes, zoning or land use laws which has not
previously been corrected;
(v) Seller is not a "foreign person" within the meaning of section
1445(f)(3) of the Internal Revenue Code of 1986, as amended and that Seller
will furnish to Purchaser, at or prior to Closing, an affidavit in form
satisfactory to Purchaser confirming the same;
(vi) Seller has no employees working at the Property and following the
Closing Purchaser shall have no obligation to employ or continue to employ any
individual employed by Seller or its affiliates in connection with the
Property;
(vii) There are no service contracts affecting the Property, other
than the Service Contracts listed in Exhibit H, and Seller has received no
written notice of default with respect to any of the Service Contracts and
Seller has no knowledge of any default by Seller under any of the Service
Contracts;
(viii) Except as may be set forth in the Existing Report, Seller has
not received any written notice from any governmental authority having
jurisdiction over the Property of any uncured violation of any Environmental
Law with respect to the Property;
(ix) The Existing Report is the only environmental report of the Property
provided to or obtained by Seller; and
(x) The unaudited operating statements for 1996 and 1997 to date which
Seller has delivered to Purchaser are the same information which Seller relies
upon in making reports to its limited partners and in filing its federal income
tax returns.
16.3. Purchaser hereby represents and warrants to Seller that Purchaser
has the full right, power and authority to execute and deliver this Agreement
and consummate the transactions contemplated herein (and the documents and
instruments to be executed and delivered by Purchaser pursuant hereto), and
this Agreement is the legal, valid and binding obligation of Purchaser,
enforceable with its terms, and does not and will not at Closing violate or
conflict with any provisions of any agreement to which Purchaser is a party.
16.4. If at any time after the execution of this Agreement, either
Purchaser or Seller become aware of information which makes a representation
and warranty contained in this Agreement to become untrue in any material
respect, said party shall promptly disclose said information to the other party
hereto. Provided the party making the representation or warranty did not take
any deliberate actions to cause the representation or warranty in question to
become untrue in any material respect, said party shall not be in default under
this Agreement and the sole remedy of the other party shall be to terminate
this Agreement, except for Purchaser's obligation to indemnify Seller and
restore the Property, as more fully set forth in Paragraph 7. Notwithstanding
anything contained herein to the contrary, if the status of any of the
tenancies changes from the date of the rent roll attached hereto and the date
of the rent roll delivered at Closing, provided the change in status is not
caused by a breach of Seller's covenants contained in Paragraph 16.6 herein,
then Purchaser shall not have the right to terminate this Agreement or make any
claim for a breach of a representation or warranty hereunder involving the rent
roll or tenancies thereunder; provided, however, that in the event Deltek
System, Inc. validly exercises a termination right in either of its leases (the
phrase "termination right" shall include terminations for cause on account of a
landlord default, but shall not include leases expiring by their terms), and
provided that such termination is not precipitated by the actions or Purchaser,
then Purchaser shall have the right to terminate this Agreement and recover its
Xxxxxxx Money, and neither party hereto will have any further obligations
except for those which survive the termination hereof. Purchaser and Seller
are prohibited from making any claims against the other party hereto after the
Closing with respect to any breaches of the other party's representations and
warranties contained in this Agreement that the claiming party has actual
knowledge of prior to the Closing.
16.5. The parties agree that the representations contained herein
shall survive Closing for a period of five (5) months (i.e., the claiming party
shall have no right to make any claims against the other party for a breach of
a representation or warranty after the expiration of five (5) months
immediately following Closing).
16.6. Seller covenants to operate, lease, maintain and manage the
Property in the same manner that it has managed, maintained, leased and
operated the Property during the period of Seller's ownership, subject to
reasonable wear and tear and casualty. Without limitation of the foregoing, so
long as this Agreement shall remain in effect: Seller shall maintain Seller's
current insurance coverage presently in effect; Seller shall not enter into any
letter of intent or contract to sell the Property with any third party; Seller
shall furnish Purchaser with monthly rent rolls, delinquency reports and
operating statements as they become available; Seller shall cooperate with
Purchaser's management personnel in arranging for a management transition; and
Seller agrees to terminate any and all management and leasing agreements
affecting the Property as of the Closing Date. Seller shall not without
Purchaser's written approval, which approval shall not be unreasonably
withheld, (a) amend in writing any Service Contract or (b) enter into any new
agreement of any type affecting the Property that would survive the Closing
Date unless terminable upon thirty (30) days' notice. Seller at its sole cost
and expense shall, after expiration of the Inspection Period, promptly send a
termination notice in connection with the Cintas Corporation contract.
Purchaser shall be responsible for all costs accruing under the Cintas
Corporation contract after the date of Closing (Seller estimates the cost of
terminating the Cintas Corporation contract to be approximately $150). With
respect to the Xxxx Industrial Communications ("GIC") contract, Seller shall
use reasonable efforts to obtain from GIC a letter agreement confirming that
the GIC contract is cancelleable at any time upon 30 days' written notice.
16.7. The continued accuracy in all material respects of the aforesaid
representations and warranties (subject to Seller's right to update the Rent
Roll as set forth in Paragraph 16.2(iii) and the performance of Seller's
covenants set forth in this Agreement (including those in Section 16.6) shall
be a condition precedent to Purchaser's obligation to close. If at Closing any
of said representations and warranties shall not be correct at the time the
same is made in any material respect, Purchaser may, as its sole and exclusive
remedy, terminate this Agreement and recover the Xxxxxxx Money together with
any interest accrued thereon, and there shall be no further liability of either
party to the other, except for Purchaser's obligation to indemnify Seller and
restore the Property, as more fully set forth in Paragraph 7. Nothing in the
immediately preceding sentence shall be deemed to impair Purchaser's rights
under Paragraph 11 with respect to a breach by Seller of Seller's covenants
under this Agreement.
17. LIMITATION OF LIABILITY. None of any partners of Seller, Affiliate of
Seller or any of their respective beneficiaries, shareholders, partners,
officers, directors, agents or employees, heirs, successors or assigns shall
have any personal liability of any kind or nature for or by reason of any
matter or thing whatsoever under, in connection with, arising out of or in any
way related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to xxx or recover on account of any such
alleged personal liability.
Notwithstanding anything contained herein to the contrary, Purchaser
hereby agrees that the maximum aggregate liability of Seller, in connection
with, arising out of or in any way related to a breach by Seller under this
Agreement or any document or conveyance agreement in connection with the
transaction set forth herein after the Closing shall be $600,000. Purchaser
hereby waives for itself and anyone who may claim by, through or under
Purchaser any and all rights to xxx or recover from Seller any amount greater
than said limit.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: x/x Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxx Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
(000) 000-0000
(000) 000-0000 (FAX)
and to: Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
TO PURCHASER: RREEF Funds
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx, Xx.
(000) 000-0000
(000) 000-0000 (FAX)
and one copy to: RREEF Funds
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxx
(000) 000-0000
(000) 000-0000 (FAX)
and
Xxxxx, Day, Xxxxxx & Xxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered, received or made on the next business day if sent by
overnight courier, or the same day as given if sent by facsimile transmission
and received by 5:00 p.m. Chicago time or on the 4th business day after the
same is deposited in the United States Mail as registered or certified matter,
addressed as above provided, with postage thereon fully prepaid. Any such
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Escrow Agent.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Within two (2) business days after
receipt of a fully executed copy (which may be transmitted by telecopy or to
Purchaser's attorney) of this Agreement, Purchaser shall wire transfer the
Xxxxxxx Money to the Escrow Agent set forth in the Escrow Agreement. Seller
will forward one (1) copy of the executed Agreement to Purchaser and will
forward the following to the Escrow Agent:
(A) One (1) fully executed copy of this Agreement; and
(B) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the Virginia, except that with respect to the retainage of the Xxxxxxx
Money as liquidated damages the laws of the State of Illinois shall govern.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. NEW LEASES. Seller shall not execute any new lease affecting the Property
or modify, amend or accept the surrender of any Lease (collectively or
individually a "Modification Agreement") of any of the Leases without
Purchaser's prior written consent. Upon requesting Purchaser's consent, Seller
shall deliver a complete copy of said proposed lease to Purchaser with a copy
of any brokerage commission agreement and statement as to the cost of any
tenant improvement work, contributions, and brokerage commissions due or to
become due in connection therewith (the "Disclosure Documents"). Purchaser's
consent shall be deemed given if Purchaser has not responded to the contrary
within five (5) business days after receipt of Seller's written request and the
complete copy of said lease or Modification Agreement and other material. If
approved by Purchaser, a complete copy of any such lease or Modification
Agreement shall be delivered to Purchaser within five (5) days of the full
execution thereof. With respect to all new leases or Modification Agreements,
provided Purchaser has approved the new lease to the extent said approval is
required, leasing costs and commissions, tenant improvements and contributions,
and reasonable attorneys' fees of Seller, shall be assumed and paid by
Purchaser (without a credit to Purchaser) or credited to Seller at Closing to
the extent Seller has paid any of said obligations prior to Closing.
26. TENANT CERTIFICATE CONDITION TO CLOSING.
26.1. The following terms have been defined as follows for convenience
of reference:
(i) "Tenant Certificate" means a certificate, commonly known as an
estoppel certificate, signed by a tenant with respect to its Lease, either in
the form set forth on Exhibit L hereto or on such other form as is
substantially consistent with the requirements of the tenant's lease for such
certificates but in no event dated earlier than February 24, 1997.
(ii) "Seller Tenant Certificate" means a Tenant Certificate signed by
the Seller and limited to the "knowledge of Seller" (as defined in Paragraph 16
herein) with respect to a particular Lease for which the Tenant in question has
failed to execute and deliver a Tenant Certificate, in which case the Seller
Tenant Certificate shall be in the form of Exhibit L.
(iii) "Qualification" means any assertion in a Tenant Certificate
or Seller Tenant Certificate (whether in the form of Exhibit L or otherwise) of
(i) a claim, counterclaim, offset or defense against the landlord, (ii) a
default on the part of the landlord, (iii) unpaid credits, allowances or other
sums due from the landlord prior to the date of the estoppel (other than
expressly disclosed on Exhibit M or Exhibit N attached hereto or pursuant to a
new lease pursuant to Xxxxxxxxx 00 xxxxxx), (xx) an unfulfilled construction or
other obligation on the part of the landlord prior to the date of estoppel
(other than expressly disclosed on Exhibit M or Exhibit N attached hereto or
pursuant to a new lease pursuant to Xxxxxxxxx 00 xxxxxx), (x) information which
is contrary (x) to the information contained in the rent roll attached hereto
as Exhibit M or (y) the information pertaining to tenant allowances and
concessions and leasing commissions contained on Exhibit N, or (vi) a material
obligation of the landlord not contained in this Agreement or any written
material (including any lease) delivered by Seller to Purchaser;
(iv) "Unacceptable Qualification" means any Qualification other than
the following:
(a) a Qualification which is expressly disclosed on the rent
roll attached hereto as Exhibit M or the schedule attached hereto as Exhibit N
or a Qualification relating to non-payment of March or April, 1997 rent,
provided the same is not as a result of a default by Seller; or
(b) a Qualification expressly disclosed in this Agreement or
the Exhibits attached hereto and made a part hereof, such as litigation
disclosed on Exhibit O.
26.2. If a Qualification is not an Unacceptable Qualification, it
shall not affect Purchaser's obligations to close hereunder or give rise to any
liability from Seller to Purchaser.
26.3. Seller shall promptly request a Tenant Certificate in the form
of Exhibit L from all tenants, and shall in good faith pursue the collection of
the same. Seller shall deliver to Purchaser, upon Seller's receipt thereof,
all Tenant Certificates signed by tenants (whether in the form of Exhibit L or
otherwise).
26.4. It shall be a condition to Purchaser's obligations hereunder
(the "Estoppel Condition") that Seller deliver to Purchaser, at or prior to
April 10, 1997 (i) a Tenant Certificate from each tenant of the Property listed
in Exhibit P attached hereto ("Major Tenant"), and (ii) either a Tenant
Certificate or Seller Tenant Certificate from all non-Major Tenants in
connection with 100% of the rentable space occupied by non-Major Tenants. A
Tenant Certificate or Seller Tenant Certificate shall not be counted toward
satisfaction of the Estoppel Condition if such certificate discloses
Unacceptable Qualifications; provided that Unacceptable Qualifications with an
aggregate "Estoppel Qualification Sum" (hereinafter defined) of less than
$100,000 shall be permitted as provided herein. The "Estoppel Qualification
Sum" shall mean the following:
(i) if the claim asserted arises out of a defect which can be cured,
with the expenditure of money on a one time basis, such as a physical defect,
then such sum shall be calculated by a reasonable estimate of the cost to
repair or remediate said defect; and
(ii) if the claim asserted affects a continuing obligation of a
tenant under the lease, such as the payment of rent, then the claim shall be
calculated by (i) determining the amount of the claim on a per annum basis,
(ii) multiplying said amount by the number of years or partial years said claim
would affect the monetary obligations under the lease and (iii) discounting
said product on a present value basis using a discount rate of 10% per annum.
If the Unacceptable Qualifications have an Estoppel Qualification Sum of
less than $100,000 in the aggregate for all of the Leases, then Seller shall
either (i) grant Purchaser a credit at Closing for an amount equal to the
Estoppel Qualification Sum, or (ii) cure all conditions giving rise to an
Unacceptable Qualification on or before the Closing. The determination to
perform the covenant contained in subparagraphs (i) or (ii) in the preceding
sentence shall be made by Seller in its sole discretion. Provided Seller
performs its covenant in this Paragraph 26.4, the disclosure of Unacceptable
Qualifications having an Estoppel Qualification Sum of less than $100,000 in
the aggregate shall not affect Purchaser's obligations to close hereunder or
give rise to any additional liability from Seller to Purchaser.
26.5. If Seller delivers any Tenant Certificates without any
Qualifications after Closing to Purchaser containing all of the information
herein required from a tenant under a Lease for whom Seller has executed and
delivered a Seller Tenant Certificate at Closing, the Seller Tenant Certificate
executed and delivered by Seller at Closing shall become null and void and the
Tenant Certificate received from the tenant shall be substituted therefor.
Seller's liability under Seller Tenant Certificates shall be limited pursuant
to Paragraph 17 herein.
26.6. If Seller has not satisfied the Estoppel Condition on or before
April 10, 1997, then Purchaser shall have the right to terminate this Agreement
by delivering written notice to Seller on or before April 14, 1997. If
Purchaser exercises its rights to terminate in accordance with the terms of
this Paragraph 26.6, this Agreement shall be null and void without further
action of the parties and all Xxxxxxx Money theretofore deposited by Purchaser
together with any interest accrued thereon, shall be returned to Purchaser, and
neither party shall have any further liability to the other, except for those
obligations which specifically survive the terms hereof. If Purchaser does not
terminate this Agreement pursuant to the first sentence of this Paragraph 26.6,
the parties shall proceed to Closing and (i) Purchaser shall receive a credit
at Closing equal to the amount of the Estoppel Qualification Sum of the
Unacceptable Qualifications contained in the Tenant Certificates and Seller
Tenant Certificates, up to an aggregate amount of $100,000 or (ii) Seller shall
cure all conditions giving rise to an Unacceptable Qualification Sum up to an
aggregate amount of $100,000. The determination to perform the covenant
contained in subparagraphs (i) or (ii) in the preceding sentence shall be made
by Seller in its sole discretion.
26.7. Notwithstanding anything contained herein to the contrary, if
Seller does not satisfy the Estoppel Condition because the Estoppel
Qualification Sum exceeds $100,000 and Purchaser has terminated the Agreement
pursuant to Paragraph 26.6, Seller shall have the right to vitiate Purchaser's
termination by written notice on or before 5:00 p.m. Chicago time on April 16,
1997 in which case the parties shall proceed to Closing and Seller shall either
(i) grant Purchaser at Closing a credit for an amount to the Estoppel
Qualification Sum or (ii) cure all conditions giving rise to an Unacceptable
Qualification on or before the Closing. The determination to perform the
covenant contained in subparagraphs (i) or (ii) in the preceding sentence shall
be made by Seller in its sole discretion.
27. AMENDMENTS AND WAIVERS. No addition to or modification of this Agreement
shall be effective unless set forth in writing and signed by the party against
whom the addition or modification is sought to be enforced. The party
benefitted by any condition or obligation may waive the same, but such waiver
shall not be enforceable by another party unless made in writing and signed by
the waiving party.
28. INVALIDITY OF PROVISION. If any provision of this Agreement as applied to
either party or to any circumstance shall be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the same shall in no
way affect (to the maximum extent permissible by law) any other provision of
this Agreement, the application of any such provision under circumstances
different from those adjudicated by the court, or the validity or
enforceability of this Agreement as a whole.
29. CONFIDENTIALITY. Purchaser and Seller hereby agree to use their best
efforts to hold in confidence all data and information in connection with the
negotiation and execution of this Agreement, including the terms of this
Agreement, and to not disclose such data and information to any third party,
except as such data and information may be included in any submission to the
Securities Exchange Commission, or as such disclosure may be required by any
federal, state or local law, any governmental authority, or any court order.
30. FURTHER ASSURANCES. Seller, at any time before or after Closing, shall,
at its own expense, execute, acknowledge and deliver any further deeds,
assignments, conveyances and other assurances, documents and instruments of
transfer reasonably requested by Purchaser and shall take any other action
consistent with the terms of this Agreement that may reasonably be requested by
Purchaser for the purpose of transferring and confirming to Purchaser, or
reducing to Purchaser's possession, any or all of the Property or otherwise
carrying out the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
RREEF AMERICA L.L.C., a Delaware
limited liability company
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Its: Authorized Representative
----------------------------------
SELLER:
TYSONS CORNER LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Tysons Corner Partners, Inc.,
an Illinois general partnership,
its general partner
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Its: Senior Vice President
-----------------------------------
Tysons Corner
of Insignia Mortgage and Investment Company ("Seller's
Broker") executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated , 1997 between Seller and Seller's Broker (the
"Listing Agreement"). Seller's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Seller's Broker and
a release, in the appropriate form, stating that no other fees or commissions
are due to it from Seller or Purchaser.
Insignia Mortgage and Investment Company
By:
-----------------------------------------
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Xxxx of Sale
G - Assignment and Assumption of Intangible Property
H - Service Contracts
I - Assignment and Assumption of Leases and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Tenant Certificate
M - Rent Roll
N - Tenant Improvement Leasing Commission
O - Litigation
P - Major Tenants
