Exhibit 2
REAL ESTATE SALE AND PURCHASE CONTRACT
THIS CONTRACT ("Contract") is made and entered into as of
the 20th day of January, 2000 (hereinafter referred to as the
date hereof), by and between USP Real Estate Investment Trust, an
Iowa common law business trust (hereinafter referred to as
"Seller"), and AEGON USA Realty Advisors, Inc., an Iowa
corporation (hereinafter referred to as "Purchaser").
The parties hereto agree as follows:
l. Agreement to Purchase and Sell.
A. Seller agrees to sell to Purchaser and Purchaser agrees
to purchase from Seller, subject to the terms and conditions of
this Contract, the six properties (the "Properties") described as
follows:
(i) Xxxxxxxx Square Shopping Center located in Orange
Park, Florida, and legally described on Exhibit "A-1" attached
hereto;
(ii) First Tuesday Mall located in Carrollton, Georgia,
and legally described on Exhibit "A-2" attached hereto;
(iii) Xxxxxxxxxx Commons Shopping Center located in
Memphis, Tennessee, and legally described on Exhibit "A-3"
attached hereto;
(iv) North Park Plaza Shopping Center located in
Phoenix, Arizona, and legally described on Exhibit "A-4" attached
hereto;
(v) Presidential Drive Office Building located in
Atlanta, Georgia, and legally described on Exhibit "A-5" attached
hereto;
(vi) Yamaha Warehouse located in Cudahy, Wisconsin, and
legally described on Exhibit "A-6" attached hereto.
The Properties are being sold together with:
(vii) All buildings, improvements, structures and
fixtures, placed, constructed, installed, or located on the
Properties, together with the parking facilities related thereto,
and all other improvements situated on, over and under the lands
legally described above (the "Improvements");
(viii) All of the furniture, furnishings, fixtures,
fittings, appliances, apparatus, equipment, tools, supplies and
machinery, if any, owned by Seller and located on the Properties
(the "Personal Property");
(ix) Seller's interest as landlord under all leases of
space of and within any part of the Properties, including,
without limitation, any renewals thereof and any options to renew
the same, together with any and all third party guarantees of the
obligations of tenants under such leases (hereinafter referred to
as the "Tenant Leases:");
(x) All contract agreements, if any, affecting the
operation of the Improvements as fully developed commercial
properties, including without limitation, all service contracts,
maintenance agreements, equipment leases, advertising contracts,
and the like, to the extent assignable, (hereinafter together
referred to as the "Operating Agreements");
(xi) To the extent assignable, all guarantees and
warranties given, made, or issued by any contractors,
subcontractors, servicers, suppliers, manufacturers, installers,
and the like, relating to or with respect to the construction,
repair, or maintenance of the Improvements or Personal Property
and the workmanship, materials, components, appliances, and
equipment forming a part of or installed on or included within or
upon the Improvements (hereinafter referred to as the
"Warranties");
(xii) All development, construction, and
engineering plans, specifications, drawings, survey materials or
other written materials or matters in the possession of Seller
which pertain to the planning, development, construction,
maintenance and repair of the Improvements, including, without
limitation all "working" drawings and all "as-built" drawings and
surveys, compliance reports, engineering reports, soil,
geological, and environmental reports (hereinafter referred to as
the "Plans and Specifications");
(xiii) All licenses, permits, authorizations, and
certificates of occupancy affecting the Improvements as fully
operational commercial rental properties (hereinafter referred to
as the "Licenses"), including without limitation the right to use
the names of the Properties set forth above, to the extent Seller
has any ownership or proprietary rights to use such names; and
(xiv) All rents, issues, royalties, and profits of
the Properties, whether coming due before or after the Closing
Date, including all refunds or rebates of any nature concerning
the Property which are made on or after the Closing Date and
including all rights to insurance proceeds or other recoveries
for damage to the Properties (or any part thereof) which is not
repaired by the date of Closing.
The Properties, together with all other rights and
properties set forth in (i) through (xiv) above are collectively
sometimes referred to herein as the "Property".
2. Purchase Price and Method of Payment.
A. The total purchase price for the Property to be paid by
Purchaser is Thirty-Three Million Five Hundred Thousand Dollars
($33,500,000.00), payable in cash by Purchaser at Closing. The
purchase price will be reduced in accordance with paragraph 10C
hereof if the mortgage on the Yamaha Warehouse is assumed by
Purchaser. The allocation of purchase price between the
Properties for purposes of title insurance coverage and transfer
tax or other legally required declarations shall be as set forth
on Exhibit "B".
B. Within three (3) business days after the date hereof,
Purchaser shall deliver to American Title Company, 0000 Xxxxxx
Xxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 00000 Attention: Xx Xxxxxx
(hereinafter referred to as the "Title Company") xxxxxxx money
(the "Deposit") in the amount of Two Hundred Thousand Dollars
($200,000.00). The Deposit shall be placed by the Title Company
in an interest bearing account with all interest earned thereon
to be for the benefit of the Purchaser. The Deposit shall be
held during the pendency of this Contract and disbursed in
accordance with the terms hereof. In the event the transactions
covered hereby shall close, at Closing the Deposit shall be
credited towards the Purchase Price.
3. Permitted Title Exceptions.
The Properties are being sold in fee simple title, subject
to the following exceptions:
A. Zoning and building laws or ordinances;
B. The liens of real estate taxes which are not yet due
and payable;
C. Those matters set forth on the Seller's title polices
concerning the Properties which are identified on Exhibit "C"
attached hereto, except for liens or encumbrances (subject to
subparagraph F below) and expired Tenant Leases or other expired
exceptions, which shall be discharged by Seller at or prior to
Closing;
D. Rights of tenants in possession;
E. Those matters set forth on the existing surveys of the
Properties identified on Exhibit "D" attached hereto; and
F. Subject to paragraph 10C, the lien of the first
mortgage and related security instruments encumbering the Yamaha
Warehouse in the current principal amount of approximately One
Million Three Hundred Ninety-Six Thousand One Hundred Seventy-
Three Dollars ($1,396,173.00) held by Wisconsin National Life
Insurance Company (hereinafter referred to as the "Yamaha
Lender").
G. Such other easements or reservations of title as shall
be approved by Purchaser after Purchaser's examination of the
title binders and updated surveys for the Property as hereinafter
required.
(A through G above are hereinafter collectively referred to
as "Permitted Exceptions").
4. Closing.
Consummation of the transactions contemplated by this
Contract (the "Closing") will be held at or closed in escrow
through the offices of the Title Company on a day and at a time
mutually agreeable to the parties, after all conditions precedent
have been satisfied, but in any case on or before June 30, 2000.
In the absence of a different specified date in accordance with
this paragraph, the Closing shall take place at 9:00 A.M., March
30, 2000 (hereinafter referred to as the "Closing Date").
5. Purchaser's Conditions Precedent.
Purchaser's obligations to purchase the Property hereunder
are contingent upon satisfaction of the following conditions
precedent ("Purchaser's Conditions Precedent") within forty-five
(45) days of the date hereof (the "Purchaser's Condition
Period"):
A. Unless this Condition is waived by Purchaser within the
Purchaser's Condition Period, Purchaser agrees to obtain a
preliminary title report and commitment to insure title covering
each Property issued by the Title Company. It is a condition
precedent to Purchaser's obligations to purchase the Property
that the Title Company agree to issue an owner's policy of title
insurance to Purchaser for each Property in an amount equal to
the purchase price set forth on Exhibit "B" and in ALTA Extended
Owner's Form B-1970 or the equivalent thereof as used in the
applicable state. The Title Company shall agree to delete from
the final policies any exceptions for mechanic's or materialman's
liens, and for discrepancies, conflicts in boundary lines, lack
of access, shortages in area, encroachments, or other facts a
current survey or inspection of the Property would disclose.
Seller agrees to execute those affidavits and/or furnish other
documentation reasonably requested by the Title Company to make
such deletions and to reflect the current status of rights
pursuant to Tenant Leases as of the Closing Date. Purchaser
shall have until expiration of its Conditions Period to examine
the title to the Properties and to notify Seller in writing of
any defects in or encumbrances upon Seller's title to the
Properties (other than the Permitted Exceptions) that are
unacceptable to Purchaser. Any objection not timely made by
Purchaser shall be deemed to be waived, and all such matters
shown as exceptions to title in the commitments (but not
including items shown in requirements sections) shall be
Permitted Exceptions.
Seller shall have until Closing to cure all such defects.
If any defects (other than Permitted Title Exceptions) are not
cured or otherwise removed in a manner reasonably satisfactory to
Purchaser by the scheduled date of Closing, Purchaser shall have
the remedies set forth in subparagraph F below.
B. Unless this Condition is waived by Purchaser within the
Purchaser's Condition Period, Purchaser agrees to obtain
certified surveys of the Properties certified by the surveyor to
Purchaser and to the Title Company. It is a Condition Precedent
to Purchaser's obligations hereunder that the surveys reveal no
new exceptions to title that are unacceptable to Purchaser. Any
such matters shall be reported to Seller and dealt with in
accordance with the procedure for other title exceptions as set
forth in subparagraph 5A above.
C. Purchaser acknowledges receipt of the environmental
reports on the Properties identified in Exhibit "E" attached
hereto and agrees to accept the Properties in the environmental
condition as reflected therein, provided, however, any new or
additional information concerning the environmental condition of
any Property shall be subject to Purchaser's approval, in
Purchaser's sole discretion and except that, prior to Closing,
Purchaser shall receive evidence of proper closure or removal of
underground tanks as noted in the report concerning Northpark
Shopping Center.
D. The Mutual Representations as set forth herein in
paragraph 7 hereof and Seller's representations as set forth in
paragraph 8 hereof shall be true and correct as of the Closing
Date without any change in the rent rolls or the status of
defaults of tenants which would be detrimental to the value of
any Property. Each party agrees to promptly notify the other of
any matter coming to the knowledge of such party which would
render any of the Mutual Representations or Seller's
Representations untrue in any material respect. Seller agrees to
use reasonable efforts to correct any such matter prior to
Closing, but shall not be obligated to expend any money or to
incur any liability to effect any such cure.
E. The parties acknowledge that Purchaser is the asset
manager for the Properties pursuant to a Management Agreement
dated July 1, 1981 and an Administrative Agreement dated January
1, 1984 (together the "Advisory Agreements"). Purchaser shall
continue to manage the Property in the best interests of the
Seller pursuant to the Advisory Agreements in the same manner as
prior to this Contract. All actions taken by Seller in regard to
the Property at the recommendation of Purchaser as Advisor shall
be considered consented to by Purchaser pursuant to this
Contract. Seller hereby directs Purchaser to conduct operations
at the Properties in accordance with any applicable terms and
conditions of this Contract. Seller agrees that Purchaser shall
have access to the Property pending Closing to perform its due
diligence and inspections allowed by this Contract in addition to
Purchaser's access to the Property in its capacity as Advisor.
Purchaser agrees to indemnify and hold Seller harmless from any
loss, cost, damage, or liability caused by Purchaser's conduct of
the due diligence set forth herein. This indemnity shall survive
the Closing or earlier termination of this Contract.
F. If the Purchaser's Conditions Precedent set forth in
this paragraph 5 are not timely satisfied, then Purchaser may
elect to (i) waive such condition(s) and close, by giving written
notice to Seller such that Seller receives the notice no later
than sixty (60) days after the date hereof in the event of a
failure of conditions to be satisfied within Purchaser's
Condition Period, or no later than the date scheduled for Closing
in the event of a failure of the conditions to be met prior to
Closing (hereinafter referred to in this paragraph as "Timely
Notice"), or (ii) terminate this Contract by Timely Notice to
Seller. Upon a termination of this Contract in accordance
herewith, Purchaser's Deposit shall be promptly refunded and
neither party shall have any further rights or obligations
hereunder. In the absence of any written notice from Purchaser,
Purchaser shall be deemed to have elected to terminate this
Contract.
6. Additional Conditions Precedent.
The parties obligations to purchase and sell the Property
hereunder are conditioned upon the following:
A. Seller obtaining a favorable vote for this transaction
from its holders of beneficial interest in accordance with
Seller's Declaration of Trust. Seller agrees to hold a special
meeting for such purpose on or before June 15, 2000 and to comply
with its Declaration of Trust and all applicable laws, codes,
ordinances, and regulations in the holding of such meeting and
vote.
B. Seller agrees to recommend the sale contemplated by
this Contract for shareholder approval at or prior to the special
meeting held for such purpose. It is a condition precedent to
Purchaser's obligations hereunder that the shareholder approval
of this transaction contain a further mandatory provision
satisfactory to Purchaser that the Trust be liquidated and that
the proceeds of this sale, together with other liquid assets of
the Trust, less costs and reserves, be promptly distributed to
the holders of beneficial interests of Seller.
C. Seller's obligations hereunder are subject to the
Purchaser's representations as set forth in paragraph 9 hereof
being true and correct on the Closing Date. Each party agrees to
notify the other of any matter which would render any of
Purchaser's representations and warranties untrue in any material
respect. Purchaser agrees to utilize its best efforts to cure
such matters, but shall not be obligated to expend any money or
incur any liability to effect such cure.
E. If any of the Additional Conditions Precedent are not
timely satisfied, unless the parties mutually agree to extend the
time for satisfaction of the conditions, this Contract shall be
terminated, the Purchaser's Deposit shall be promptly returned,
and neither party shall have any further rights or obligations
hereunder.
7. Mutual Representations.
The parties, to their actual knowledge, each make to the
other the following statements concerning the condition of the
Property (hereinafter referred to as the "Mutual
Representations"):
A. Attached hereto as Exhibits "F-1" through "F-6" are
true and complete rent rolls of the Properties as of the date set
forth thereon, and except as set forth on Exhibits "F-1" through
"F-6", no tenant is in material default under its lease, nor has
Seller received any notice that it is in default as landlord
thereunder.
B. All of the Property is, or on the Closing Date will be,
owned by Seller free and clear of liens and encumbrances, other
than the Permitted Title Exceptions.
C. Each of the Properties is in material compliance with
all applicable laws, codes, and ordinances including those
regulating zoning, building, health, fire, or other safety and
environmental condition.
D. The Properties are insured against fire and other
hazards as described in Exhibit "G" attached hereto.
E. There are no plans for condemnation of all or any part
of the Properties.
F. There are no planned street or other improvements which
may result in special assessments against the Properties or any
part thereof, or which may alter or disrupt ingress and egress
from the Properties.
G. There are no claims, actions, suits, or proceedings
pending, threatened against, or affecting the Property.
H. There are, and on the date of Closing there will be no
damage to the Property which has not been repaired. Subject to
the provisions of paragraph 15, all damage occurring to the
Property prior to Closing shall be repaired by Seller at Seller's
expense. All mechanical equipment for which Seller is
responsible pursuant to the terms of Tenant Leases, including,
but not limited to the plumbing, air conditioning and heating and
electrical systems will be in good and serviceable operating
condition.
I. At the time of Closing, any work required to be
performed by the Seller under the terms of the Tenant Leases or
the Operating Agreements or other agreements in connection with
the Property will have been completed in accordance with the
plans and specifications therefor, if any, and fully paid for by
Seller, except for tenant finish work incident to new leases
entered into between the date hereof and Closing, which shall be
governed by the provisions of paragraph 10.
J. Neither the execution and delivery of this Contract or
the other documents called for hereunder, nor the consummation of
any of the transactions herein or therein contemplated, nor
compliance with the terms and provisions hereof, or with the
terms and provisions thereof, will contravene any provision of
law, statute, rule, or regulation to which Seller is subject, or
will conflict to be inconsistent with, or result in any breach of
any of the terms, conditions, covenants, or provisions of, or
constitute a default under or result in the creation or
imposition of any lien, security interest, charge, or encumbrance
upon the Property pursuant to the terms of any indenture,
mortgage, deed of trust, lease, or other instrument to which
Seller is a party, or by which Seller or any Property may be
bound. Except as set forth in Exhibit "L", no person or entity
has any right to acquire the Property or any interest or part
thereof.
K. There are no Operating Agreements that are either not
assignable or non-cancelable on thirty (30) days prior notice.
L. Except for the Permitted Exceptions and except as
otherwise disclosed herein and in Exhibits "C" and "D" attached
hereto, there are no material liens or encumbrances against the
Properties or other exceptions to fee simple title which would
materially adversely affect the value of the Properties.
M. For purposes of this Contract, the actual knowledge of
Seller shall mean the actual knowledge of the Trustees, and the
actual knowledge of Purchaser shall mean the actual knowledge of
Xxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxx,
and Xxxxxxx XxXxxx.
8. Representations and Warranties of Seller.
Seller represents and warrants the following:
A. Seller is not a foreign person, foreign corporation,
foreign partnership, foreign trust, or foreign estate as defined
in the Internal Revenue Code and Regulations.
B. The execution and delivery of this Contract and each
instrument or document required to be executed and delivered by
Seller pursuant hereto and the consummation of the transactions
contemplated hereby, upon execution, delivery, and consummation
thereof, will be duly authorized and approved by all requisite
Trust actions and no other authorization or approval, whether of
governmental bodies or otherwise, will be necessary in order to
enable Seller to enter into or to perform this Contract, subject
to the Conditions Precedent. Seller is not a party to any
contract or agreement, other than through Purchaser as Advisor,
which would violate the representations contained in subparagraph
J above.
9. Representations and Warranties of Purchaser.
Purchaser represents and warrants that it has taken all
necessary action to authorize the execution and delivery of this
Contract and to consummate the purchase of the Property as herein
contemplated. The officer executing this Contract on behalf of
Purchaser has been duly authorized to do so pursuant to proper
action by Purchaser's Board of Directors. Purchaser is not
subject to any governmental or other regulations that would
restrict this purchase, nor is this purchase in contravention of
any term or provision of Purchaser's Articles of Incorporation or
By-Laws.
10. Covenants and Agreements.
Between the date hereof and the Closing:
A. Seller shall not enter into any agreements or contracts
affecting the Properties which survive Closing, nor shall Seller
enter into any new lease or modify or terminate any existing
Tenant Lease without the prior written consent of Purchaser,
which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Seller may enter the pending lease
transactions described on Exhibit "H" ("Permitted Lease
Transactions"). The parties agree to pursue, approve, and enter
new leases in the ordinary course of business. The parties shall
pay for the tenant improvement costs or allowances and leasing
commissions in Permitted or hereafter approved Lease Transactions
entered between the date hereof and Closing in accordance with
Exhibit "H". Nothing in this Contract shall be deemed to require
Seller to enter into any new lease, lease modification, or
operating agreement. Any contracts for tenant improvements for
the Permitted Lease Transactions which are not completed prior to
Closing shall be assigned to and assumed by Purchaser as an
Operating Contract pursuant to paragraph 11A(2) hereof, subject
to any appropriate prorations for the costs thereof in accordance
with this paragraph.
B. Seller shall operate the Property in the ordinary
course of business, including without limitation, compliance with
the terms of all leases, mortgages, or other contractual
obligations relating to the Property and doing regular,
scheduled, or necessary maintenance and repair of the Properties,
and of the fixtures, furniture, and equipment, so that the
Property will be in the condition required herein on the Closing
Date. Discretionary repairs and maintenance shall be performed
in accordance with the budget for such matters as approved by the
Seller.
C. The Purchaser shall use reasonable efforts to obtain
the Yamaha Lender's consent to the Purchaser's purchase of Yamaha
Warehouse subject to its mortgage. If such consent is obtained,
the purchase price shall be reduced by the principal balance of
the mortgage at Closing and accrued interest on the mortgage debt
will be pro rated between the parties with Purchaser responsible
for interest on and after the date of Closing. Seller agrees to
pay the assumption fee to the Yamaha Lender in the amount of one
percent (1%) of the principal balance of the loan. If the Yamaha
Lender refuses to consent to the sale, then the purchase price
will not be reduced, Seller will pay off the Yamaha mortgage at
Closing and deliver the Property free and clear of the mortgage
and related liens.
11. Items to be Delivered at the Closing.
A. At Closing, Seller shall cause to be delivered the
following:
(1) A Special Warranty Deed for each Property in the
form attached hereto as Exhibit "I" (modified as necessary to
comply with state, local law, or recording requirements),
conveying to Purchaser fee simple title to the Properties,
subject only to the Permitted Exceptions.
(2) A blanket conveyance, xxxx of sale and assignment
for each Property (the "Xxxx of Sale"), conveying and assigning
title with covenants of general warranty to Purchaser, free and
clear of all liens and encumbrances, (other than the Permitted
Exceptions); the Personal Property and the Tenant Leases, the
Operating Agreements, the Warranties, and the Licenses, such
instrument to be in form attached hereto as Exhibit "J".
(3) A rent roll (the "Rent Roll") for each Property,
certified by Seller and Purchaser to be true, complete and
correct as of the Closing Date and reflecting the status of
tenant delinquencies, if any, existing as of the Closing Date.
(4) All keys in Seller's possession or control to all
locks on the Property.
(5) To the extent they are in Seller's possession, the
executed originals of all Tenant Leases, together with copies of
all correspondence relating to the Leases and such accounting
information relating to the Leases as Purchaser may reasonably
require.
(6) A certificate in the form attached hereto as
Exhibit "K", certifying that Seller is a non-foreign entity.
(7) Possession of the Property subject to the
Permitted Exceptions.
(8) Notices to Tenants of sale, in a form acceptable
to Purchaser and Seller.
(9) To the extent they are in Seller's possession, all
original Operating Agreements, Warranties, and Plans and
Specifications.
(10) Proper documentation showing the good standing or
other authorization of Seller and the authorization of all
persons executing documents on behalf of Seller. Seller shall
also execute and/or deliver all documents required by the Title
Company to issue the title policies in the form required by this
Contract, provided that disclosures, if any, required to be
certified by the Trust shall be either (i) certified to the
knowledge of the Trustees, or (ii) Purchaser as Advisor shall
give the same certifications to Seller, which certifications may
be limited to the officers of USP.
B. Action at the Closing by Purchaser.
On the date of Closing, Purchaser shall deliver the
purchase price to Seller by wire transfer in the amount required
by paragraph 2 hereof, subject to prorations and credits as
contemplated herein. Purchaser shall execute and deliver to
Seller at Closing the Bills of Sale evidencing Purchaser's
assumption of the Tenant Leases and Operating Agreements. The
parties shall execute "Notices to Tenants" advising tenants of
the sale and Purchaser agrees to deliver, or cause to be
delivered, such notices to each tenant after Closing.
12. Closing Prorations.
Purchaser shall obtain its own insurance coverage for the
Property at Closing. Property expenses, including charges under
the continuing Operating Agreements assumed by Purchaser,
collected rents, and ad valorem taxes on the Property shall be
prorated at the Closing, effective as of the Closing date, using
the latest available computations of such items. Utilities shall
be prorated between the parties at Closing. Purchaser shall have
all utilities in Seller's name transferred to Purchaser's name
promptly following the Closing. All expenses which are prorated
at Closing (exclusive of any unknown claims related thereto,
which shall remain the responsibility of Seller) shall be deemed
a final proration and Purchaser shall be responsible for payment
of such items when due. Except as prorated between the parties at
Closing or as otherwise agreed by the parties in accordance with
this paragraph and paragraph 10A, Seller shall be responsible for
all property expenses incurred, undertaken, or contracted for
prior to Closing, and agrees to indemnify and hold Purchaser
harmless from any claim, cost, or cause of action arising from
any such expenses and liabilities, including court costs and
attorney's fees in the defense thereof or in the enforcement of
this indemnity. Tenant security deposits in the possession of
Seller and prepaid rents shall be credited to Purchaser.
Included in this sale are all delinquent rental accounts and all
rents, issues, and profits of the Properties due or which may
become due after Closing relating to periods occurring prior to
Closing. In addition to the purchase price, Purchaser shall pay
Seller for Seller's prorata share of delinquent tenant rental
accounts, exclusive of late charges and/or interest, at face
value, but specifically excluding payment for delinquent accounts
of tenants in Material Default (hereinafter defined), as of the
Closing Date. Purchaser shall also pay Seller at Closing for
Seller's prorata share of tenant reimbursements for CAM and real
estate taxes due after Closing based upon the most recent
estimate of such amounts as used in Seller's ledgers to accrue
for such items, specifically excluding any payment for
reimbursables of tenants in Material Default as of the Closing
Date. As used in this paragraph, Material Default shall mean any
tenant (i) whose rental account is more than ninety (90) days
delinquent, (ii) who is in bankruptcy or insolvency proceedings,
(iii) has vacated the Property and is delinquent in payment of
rent for more than thirty (30) days, or (iv) has indicated in
writing its inability or refusal to pay its account. Subject
only to the payments and prorations set forth in this paragraph,
all rent issues and profits of the Properties of every nature due
or paid after Closing shall be the property of Purchaser.
13. Closing Costs.
Purchaser shall pay the cost of the title policies, surveys,
and environmental reports. Seller shall pay for the applicable
transfer taxes. The parties shall each pay one-half of the Title
Company escrow fees, if any. Each party shall bear its own
attorney's fees.
14. Remedies Upon Default.
IF PURCHASER SHALL DEFAULT IN ITS PERFORMANCE OF THIS
CONTRACT, PURCHASER AND SELLER AGREE IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY SUFFER.
THEREFORE, PURCHASER AND SELLER HEREBY AGREE A REASONABLE
ESTIMATE OF THE TOTAL NET DETRIMENT SELLER WOULD SUFFER IN THE
EVENT PURCHASER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF
THE PROPERTIES ARE AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE
REMEDY (WHETHER AT LAW OR IN EQUITY), AN AMOUNT EQUAL TO THE
XXXXXXX MONEY. SAID AMOUNT SHALL BE THE FULL, AGREED AND
LIQUIDATED DAMAGES FOR THE BREACH OF THIS CONTRACT BY PURCHASER,
ALL OTHER CLAIMS TO DAMAGES OR REMEDIES BEING HEREIN EXPRESSLY
WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON SUCH
DEFAULT BY PURCHASER, THIS AGREEMENT SHALL BE TERMINATED AND
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT OF SELLER TO
RECEIVE SUCH LIQUIDATED DAMAGES FROM THE TITLE COMPANY.
If Seller shall default in its performance of this Contract,
the Purchaser may, as its sole and exclusive remedies elect to
either (i) terminate this Contract and receive a refund of the
Deposit, or (ii) xxx Seller for damages, which damages the
parties agree shall be limited to an amount not to exceed the
Deposit.
Except for failure to close on the specified Closing Date,
for which default no notice or cure period is required, prior to
a declaration of default, the declaring party shall give the
defaulting party written notice specifying the default. The
defaulting party shall have five (5) business days from receipt
of such notice to cure the default. If the cure period extends
beyond the scheduled date of Closing, the Closing Date shall be
postponed to the last day of the cure period.
In the event either party hereto employs an attorney and
commences legal action because of the other party's default, then
the non-prevailing party shall pay to the prevailing party
reasonable attorney's fees incurred in the enforcement of this
Contract.
15. Risk of Loss.
Until Closing, all risk of loss of the Property is on the
Seller and if, prior to Closing, the Property, or any part
thereof, shall become damaged by fire or other casualty or become
the object of any condemnation proceedings, Purchaser may, as its
sole and exclusive remedy, elect to either (i) terminate this
Contract, or (ii) proceed with the Closing and receive an
assignment in form acceptable to Purchaser of all insurance
proceeds or awards for such taking, free and clear of all liens,
claims and encumbrances, and in the case of casualty, together
with a cash payment by Seller to Purchaser in the amount of the
lesser of (a) any deductible under Seller's insurance, or (b) the
cost of the repair of the damage. If the estimated cost of
repair is less than One Million Dollars ($1,000,000.00),
Purchaser agrees to proceed to Closing in accordance with (ii)
above. Any election allowed hereunder shall be made in writing
no later than the earlier of (i) the scheduled date of Closing,
or (ii) ten (10) days after a party's receipt of notice of such
damage or proceeding.
16. Notices.
All notices and demands herein required shall be in writing.
Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be hand-delivered
personally or by express mail, courier service (both with
delivery receipt), or electronically verifiable facsimile
transmission or sent by United States Mail (registered or
certified) postage prepaid, to the addresses set forth below.
As to Seller: Xxxxxxx X. Xxxxxxxx,
Chairman of the Board of Trustees
USP Real Estate Investment Trust
000 Xxxxxxx Xxxxx XX, #000
Xxxxx Xxxxxx, XX 00000
Fax: 319/000-0000
With a copy to: Xxxxxxx Xxxxx
Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax Number: (000) 000-0000
As to Purchaser: AEGON USA Realty Advisors, Inc.
0000 Xxxxxxxx Xxxx X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx XxXxxx
Fax Number (000) 000-0000
Any notice, demand or request which shall be given in the
manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (1) at the time such notices, demands or
requests are hand-delivered (which shall be deemed to include
delivery by express mail or courier service or transmission by
telefax facsimile) or (2) the day such notices, demands or
requests are posted, postage prepaid, in the United States Mail
in accordance with the preceding portion of this paragraph,
provided however, time for response to any such notice shall
commence upon receipt at the address specified. Notice by
telefax transmission shall be given on a non-banking holiday
weekday between the hours of 9:00 a.m. to 5:00 p.m. (at the
destination) or shall be deemed received on the next such day and
time.
17. Time of Essence.
Time is of the essence of this Contract.
18. Real Estate Brokers.
Purchaser and Seller covenant and represent to each other
that, there is no party entitled to a real estate commission,
finder's fee, cooperation fee, or brokerage-type fee or similar
compensation in connection with this Contract and the
transactions contemplated herein, except for a fee due Xxxxxxx
Xxxxx & Associates, Inc. for rendering the fairness opinion
requested by Seller herein, and whose fee shall be paid by Seller
pursuant to a separate agreement. Each party agrees to hold the
other harmless from and against any claim for a commission or fee
from any other broker or agent claiming by or through the
indemnifying party. Seller warrants that Xxxxxxx Xxxxx &
Associates, Inc. has waived any right to claim a commission or
transaction fee on this sale.
19. Entire Agreement.
This Contract contains all of the agreements,
representations and warranties of the parties hereto and
supersedes all other discussions, understandings or agreements in
respect to the subject matter hereof. All prior discussions,
understandings and agreements are merged into this Contract,
which alone fully and completely expresses the agreements and
understandings of the parties hereto. This Contract may be
amended, superseded, extended or modified only by an instrument
in writing referring hereto signed by both parties.
20. Exhibits a Part of This Contract.
All Exhibits referred to in this Contract and attached
hereto are incorporated into this Contract by reference and are
hereby made a part hereof.
21. No Benefit to Other Parties.
Except as otherwise provided herein, none of the provisions
hereof shall inure to the benefit of any party other than the
parties hereto and their respective successors and permitted
assigns, or be deemed to create any rights, benefits or
privileges in favor of any other party except the parties hereto.
22. No Agency, Partnership or Joint Venture.
Nothing herein shall be construed to establish an agency
relationship, a partnership or a joint venture between Seller and
Purchaser for any purpose.
23. Captions.
The captions and headings contained in this Contract are for
reference purposes only and shall not in any way affect the
meaning or interpretation hereof.
24. Governing Law.
This Contract shall be governed, construed and enforced in
accordance with the laws of the State of Iowa.
25. No Waiver.
The waiver by one party of the performance of any covenant
or condition herein shall not invalidate this Contract, nor shall
it be considered to be a waiver by such party of any other
covenant or condition herein. The waiver by either or both
parties of the time for performing any act shall not constitute a
waiver of the time for performing any other act or an identical
act required to be performed at a later time. Except as
otherwise specifically restricted herein, the exercise of any
remedy provided by law and the provisions of this Contract shall
not exclude other available remedies.
26. AS-IS Condition.
Purchaser acknowledges that it is purchasing the Property on
an AS-IS condition, based upon its own inspections thereof and
without benefit of any representation, warranty or disclosure
from Seller, either express or implied or in the nature of
fitness for any particular purpose, except as specifically set
forth herein. Seller agrees to maintain the Properties in their
current physical condition to the Closing Date, normal wear and
tear excepted.
27. Survival of Representations.
The representations and warranties made by Seller in
paragraph 8 of this Contract and by Purchaser in paragraph 9 (the
parties "Separate Representations and Warranties") shall survive
the Closing and delivery of deeds and other conveyance documents.
Each party agrees to indemnify and hold the other harmless from
and against any loss, cost, liability, claim, or cause of action
arising from the inaccuracy of such parties Separate
Representations and Warranties, including court costs and
attorney's fees incurred by such indemnified party in the defense
of any such claim and in the enforcement of this indemnity. All
indemnities contained in this Contract shall survive the Closing.
The Mutual Representations in paragraph 7 are given for the sole
purpose of establishing the Purchaser's Conditions Precedent to
Closing contained in paragraph 5D and shall not survive the
Closing; the sole remedy for breach of the Mutual Representations
being as set forth in paragraph 5F. Provided, however,
notwithstanding the provisions of the prior sentence to the
contrary, the breach of any of the Mutual Representations by
Purchaser that results in a claim against Seller by Purchaser
under or pursuant to any representations or warranties of Seller
contained in the conveyance documents delivered by Seller at
Closing, shall survive for the sole benefit of Seller and for the
sole use as a defense against any such claim by Purchaser and/or
its successors or assigns in interest to the Properties.
28. Access to Files.
For a period of three (3) years after Closing, Purchaser
agrees to grant to Seller, its successors or assigns, access to
Tenant Lease and Property files delivered to Purchaser at
Closing, subject to reasonable advance written notice.
29. Package Sale.
The purchase price provided herein is based upon a group
sale of the Properties, and except as provided in paragraph 5F,
no Property or Properties may be purchased or sold individually
hereunder without the prior written consent of Purchaser and
Seller, which consent may be withheld in the sole discretion of
either party.
30. Assignment.
Purchaser shall have the right to assign this Contract, in
whole or in part, to one or more affiliated entities, provided
written notice shall be given to Seller of such assignment no
later than ten (10) days prior to Closing. Any such assignment
shall not terminate any liability hereunder unless so released in
writing by Seller.
31. Business Days.
In the event that any time period under this Contract
expires on a day that is not a business day, such time period
shall be deemed extended to the first business day following such
date. "Business day" as used herein shall mean any day other
than Saturday, Sunday or a legal holiday on which business is
transacted by federally insured national banking institutions in
Cedar Rapids, Iowa.
32. Counterparts.
This Contract may be signed in counterparts, each of which
is deemed an original. This Contract shall be null and void
unless it shall be executed by Purchaser and one copy returned to
Seller on or before January 20, 2000.
WHEREFORE, the parties have hereunto affixed their hands and
seals as of the date set hereof.
SELLER: PURCHASER:
USP Real Estate Investment Trust AEGON USA Realty Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/Xxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx, Trustee Xxxxx X.Xxxxxxxxxxx, President
Chairman of the Board of Trustees
