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PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT made and entered into as of the 16th day of December, 1998,
by and between XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP, a
Massachusetts limited partnership, having its principal address c/o The Real
Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx
00000 (hereinafter "Seller"), and MG DEVELOPMENT COMPANY, a California general
partnership, having an office address at 00000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx Xxxxx, XX 00000 (hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller desires to sell certain improved real property known as
Warner Plaza Shopping Center and located in Chandler, Arizona, along with
certain related personal and intangible property; and
WHEREAS, Buyer desires to purchase such real, personal, and intangible
property in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth the parties hereto mutually agree as follows:
1. The Property.
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1.1 DESCRIPTION: Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, Seller agrees to sell and
transfer, and Buyer agrees to purchase and acquire, all of Seller's right,
title, and interest in and to the following (collectively, the "Property"):
1.1.1 Certain land (the "Land") located at North Xxxx School
Road, Chandler, Arizona, and more specifically described in EXHIBIT 1.1.1
attached hereto;
1.1.2 The building(s), parking areas, improvements, and
fixtures now situated on the Land (the "Improvements");
1.1.3 All furniture, personal property, machinery, apparatus,
fixtures owned by Seller and located at the Property, and equipment currently
used in the operation, repair, and maintenance of the Land and the Improvements
and situated thereon, excluding, however, tangible personal property and
fixtures of the Improvements which are owned by tenants or which may be removed
by tenants under the terms of their leases (collectively, the "Personal
Property"). The Personal Property to be conveyed is subject to depletions,
replacements, and additions in the ordinary course of Seller's business and
includes any and all personal property owned by Seller and located at the
Property;
1.1.4 All easements, hereditaments, and appurtenances
belonging to or inuring to the benefit of Seller and pertaining to the Land, if
any;
1.1.5 Any street or road abutting the Land to the center line
thereof (to the extent owned by Seller);
1.1.6 The leases or occupancy agreements together with any
interest in any and all amendments, addendum and guaranties relating thereto,
including those in effect on the date of this Agreement which are identified on
the Schedule of Leases attached hereto as EXHIBIT 1.1.6, and any new leases
entered into pursuant to Section 7.3 including all amendments thereto, which as
of the Closing (or Date of Closing, as hereinafter defined) affect all or any
portion of the Land or the Improvements (collectively, the "Leases"), and any
security deposits actually held by Seller with respect to any such Leases;
1.1.7 All service, maintenance, supply, or other contracts
relating to the operation of the Property, including those in effect as of the
date hereof which are listed on
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EXHIBIT 1.1.7 hereto and any new contracts entered into pursuant to Section 7.2
(together, the "Contracts"), subject to Section 5.5 hereof;
1.1.8 The name "Warner Plaza Shopping Center" (if available);
1.1.9 Assignable warranties and guaranties issued in
connection with the Improvements or the Personal Property which remain in effect
as of Closing; and
1.1.10 All transferable consents, authorizations, variances or
waivers, licenses, permits, and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau, or other
entity or instrumentality solely in respect of the Land or the Improvements
which remain valid or in effect as of Closing.
1.2 AGREEMENT TO CONVEY. Seller agrees to convey, and Buyer agrees to
accept, on the Date of Closing: (a) title to the Land and the Improvements in
the condition described in Section 6.1, and subject to the Permitted Exceptions
(as hereinafter defined); and (b) title to the Personal Property, by Xxxx of
Sale (as hereinafter defined), without warranty as to the title or the condition
of such personalty.
2. PURCHASE PRICE. The Property is to be sold to Buyer for the sum of Six
Million Four Hundred Thousand and NO/100 Dollars ($6,400,000.00) (the "Purchase
Price"), which Buyer shall pay to Seller on the Date of Closing by wiring
immediately available Federal funds to such bank account as may be designated by
Seller.
3. DEPOSIT. Buyer shall deposit with the Title Company (as hereinafter
defined) the sum of $125,000.00 by wiring immediately available Federal funds to
such bank account as may be designated by the Title Company or by official bank
cashier's check simultaneously with the execution of this Agreement as a good
faith deposit (hereinafter, said deposit and such interest as is earned thereon
shall accrue to the benefit of Buyer and be referred to as the "Deposit"), which
Deposit shall be disposed of in the manner herein provided. If Closing occurs in
accordance with this Agreement, the Deposit shall either be applied against the
Purchase Price or returned by Seller to Buyer on the Date of Closing, as
hereinafter provided. If this Agreement is terminated, or if either party fails
to perform any of its agreements hereunder, the Deposit shall be disposed of in
the manner hereinafter provided.
4. CLOSING. Subject to the provisions of this Agreement, the Closing
Documents (as hereinafter defined) shall be delivered at 10:00 o'clock A.M.,
E.S.T., on February 12, 1999 (the "Date of Closing" or "Closing"), at an office
of Chicago Title Insurance Company (the "Title Company"), unless otherwise
agreed upon in writing. Contact for all title insurance requirements should be
made through the following office: Notwithstanding, the foregoing, (a) the date
of Closing shall be automatically extended to February 19, 1999 in the event
that Seller delivers the Tenant Estoppel Letters on the Additional Estoppel
Deadline, as defined below, and (b) Buyer shall have the right to extend the
Date of Closing for an additional fifteen (15) days, provided that Buyer pay an
extension fee of $50,000 (the "Extension Fee"), which Extension Fee shall be
non-refundable and shall be credited to the Purchase Price.
Chicago Title Insurance Company
National Business Unit
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000 or (000) 000-0000
Fax: (000) 000-0000
5. Buyer's Review.
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5.1 Access.
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5.1.1 Seller shall within five (5) days of the execution
hereof make available to Buyer copies of the Contracts and the Leases. Seller
agrees to allow Buyer or Buyer's agents or representatives reasonable access to
the Property (during business hours) for
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purposes of any non-intrusive physical or environmental inspection of the
Property and review and copying of the Contracts, the Leases, Seller's books and
records relating to the Property (other than any privileged, proprietary or
confidential records), soil reports, environmental studies and reports, surveys,
building and systems plans, income and expense statements, and other matters
necessary in the reasonable discretion of Buyer to evaluate and analyze the
feasibility of the Property for Buyer's intended use thereof. Buyer shall not
conduct or authorize any physically intrusive testing of, on, or under the
Property without first obtaining Seller's written consent as to the timing and
scope of work to be performed, such consent not to be unreasonably withheld.
Notwithstanding the foregoing, if any written request for approval to conduct
any testing is delivered to Seller, Seller will respond to Buyer within two (2)
business days ("Response Date"), provided that Buyer shall deliver any and all
necessary and relevant information and materials to Seller to enable Seller to
made an informed decision regarding said written request. If Seller does not
respond within the required time period as provided above, then the Approval
Date shall be extended by the number of days in excess of the Response Date.
5.1.2 Except as otherwise expressly set forth herein, Seller
makes no representations or warranties as to the truth, accuracy, or
completeness of any materials, data, or other information, including without
limitation the contents of Seller's or its property manager's books and records,
marketing materials prepared by Seller or the Broker (as hereinafter defined),
the Leases, the Contracts, rent rolls or income and expense statements, supplied
to Buyer in connection with Buyer's inspection of the Property. It is the
parties' express understanding and agreement that all such materials are
provided by Seller solely for Buyer's convenience in making its own examination
and determination prior to the Approval Date (as hereinafter defined) as to
whether it wishes to purchase the Property, and, in making such examination and
determination, Buyer shall rely exclusively on its own independent investigation
and evaluation of the Property and not on any materials supplied by Seller.
5.2 TITLE AND SURVEY. Seller shall obtain a commitment by the Title
Company to issue an owner's policy of title insurance insuring the Land and the
Improvements in the amount of the Purchase Price (the "Title Commitment"), and a
survey of the Land prepared by a professional land surveyor licensed in the
state in which the Property is located (the "Survey").
5.3 Buyer's Right to Object or Terminate.
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5.3.1 BUYER'S RIGHT TO OBJECT. Buyer shall have the right, in
its sole discretion, on or before 5:00 p.m. E.S.T. on December 14, 1998 (the
"Approval Date") to make written objection to any matter regarding the Property
("Objection Notice"), which notice must specify the reason such matter(s) are
not satisfactory and the curative steps necessary to remove the basis for
Buyer's disapproval. The parties shall then have until the later of ten (10)
business days after the date of the Objection Notice and the Approval Date
(whichever is later, the "Objection Deadline") to make such arrangements or take
such steps as they shall mutually agree to satisfy Buyer's objection(s);
provided, however, that Seller shall have no obligation whatsoever to expend or
agree to expend any funds, to undertake or agree to undertake any obligations,
or otherwise to attempt to cure or agree to attempt to cure any objections, and
Seller shall not be deemed to have any obligation to attempt to cure any such
matters unless Seller expressly undertakes such an obligation by a written
notice to or written agreement with Buyer given or entered into on or prior to
the Objection Deadline and which recites that it is in response to an Objection
Notice. Buyer's sole right with respect to any objections contained in an
Objection Notice given in a timely manner shall be to elect on or before the
Objection Deadline to terminate this Agreement pursuant to Section 5.3.2 hereof.
All possible objections regarding title, the Survey, or other matters regarding
the Property not included in an Objection Notice given by Buyer to Seller on or
before the Approval Date, or with respect to which a timely Objection Notice is
given but Seller fails to expressly agree to attempt to cure as provided above,
shall be deemed to be approved by Buyer as "Permitted Exceptions" as provided in
Section 5.4 hereof.
5.3.2 BUYER'S RIGHT TO TERMINATE. In the alternative, Buyer
shall have the right, in its sole discretion, on or before the Approval Date (if
the Objection Notice has not been given) or the Objection Deadline (if the
Objection Notice has been given), to terminate its obligation to purchase the
Property by giving Seller written notice of termination (the "Termination
Notice"). If the Termination Notice is timely given, Seller shall direct the
Title
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Company promptly to return the Deposit to Buyer and neither party shall have any
further obligations or liability hereunder except as expressly set forth in this
Agreement, including without limitation Sections 6.2 and 24 hereof. In the event
that Buyer does not tender to Seller the Objection Notice or the Termination
Notice prior to the Approval Date or the Objection Deadline, as applicable: (a)
the Deposit shall be non-refundable; and (b) Buyer shall have no further rights
to the Deposit, and no further right to terminate this Agreement, except
pursuant to Sections 9.1, 13, or 18.1.
5.3.3 ADDITIONAL TERMINATION NOTICE. Notwithstanding Section
5.3.2 above, Buyer shall have an additional right to terminate its obligation to
purchase the Property by providing written notice of termination (the
"Additional Termination Notice") to Seller (a) on or before the Financing Date
or the Additional Financing Date, as provided below, that Buyer is unable to
obtain financing as provided in Section 5A, below or (b) if Buyer has not
received the Tenant Estoppel Letters and has not approved same in accordance
with the provisions of Section 9.3, below.
5.4 PERMITTED EXCEPTIONS. If this Agreement is not terminated, Buyer
shall be deemed to have approved and to have agreed to purchase the Property
subject to the following:
5.4.1 all possible title objections, survey objections, and
any defects in or to title to the Property or other matters affecting or
relating to the title to, or the survey of, or the condition of the Property
existing as of the Approval Date and not included in an Objection Notice given
by Buyer and/or which Buyer has otherwise approved or is deemed to have approved
pursuant to Section 5.3.1 hereof;
5.4.2 all existing Leases, and all Contracts and Leases which
Buyer has approved or is deemed to have approved, or which Seller is permitted
to enter into, pursuant to Sections 5.5, 7.2, and 7.3 hereof;
5.4.3 the lien of non-delinquent real and personal property
taxes and assessments;
5.4.4 rights of parties in possession not shown by the public
records;
5.4.5 discrepancies, conflicts in boundary lines, shortages
in area, encroachments, and any state of facts which an inspection of the
Property would disclose and which are not shown by the public records;
5.4.6 easements or claims of easements shown by the public
records;
5.4.7 any service, installation, connection, maintenance or
construction charges due after Closing, and, subject to the proration provisions
hereof, charges for sewer, water, electricity, telephone, cable television or
gas; and
5.4.8 unrecorded leaseholds, rights of vendors and holders of
security interests on personal property installed upon the Property by tenants,
and rights of tenants to remove trade fixtures at the expiration of the term of
the Leases.
All of the foregoing are referred to herein collectively as the "Permitted
Exceptions".
5.5 CONTRACTS. On or before the Approval Date, Buyer shall notify
Seller in writing as to which of the Contracts Buyer elects to assume at
Closing. Seller shall notify the vendors under those Contract(s) which Buyer has
not agreed to assume that, provided that Closing occurs hereunder, such
Contracts shall terminate, effective as of the Date of Closing; provided however
if any such non-assumed Contract does not permit Seller to terminate same within
thirty (30) days or requires that Seller pay a fee to terminate same prior to
Closing, Buyer shall be required at Closing to assume all obligations thereunder
until the effective date of the termination and to assume the obligation to pay,
or to reimburse Seller for the payment of, the termination fee.
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5A. FINANCING CONTINGENCY. Buyer shall have until January 29, 1999
("Financing Date") to obtain financing from a lender for the purchase of the
Property upon terms and conditions reasonably satisfactory to Buyer ("Financing
Contingency"). The Financing Contingency shall be automatically extended to
February 5, 1999 if the Tenant Estoppel Letters are delivered on the Additional
Estoppel Deadline (the "Additional Financing Date"). Buyer shall submit to
Seller on or before 5:00 p.m. P.S.T on December 21, 1998 evidence that it is
diligently pursuing financing, including without limitation, providing Seller
with a letter from either the proposed lender or the loan correspondent
indicating that a loan application has been submitted to Buyer's lender. If
Buyer cannot satisfy the Financing Contingency on the Financing Date, Buyer may
terminate this Agreement by giving an Additional Termination Notice to Seller
and Seller shall direct the Title Company promptly to return the Deposit to
Buyer and neither party shall have any further obligations or liability
hereunder except as expressly set forth in this Agreement, including without
limitation Sections 6.2 and 24 hereof.
6. Condition of Premises.
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6.1 Buyer and Seller agree that Buyer is acquiring the Property in
its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY,
EXPRESS OR IMPLIED. Except as otherwise expressly set forth herein, neither
Seller nor any agents, representatives, or employees of Seller have made any
representations or warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees of Buyer with
respect to the condition of the Property, its fitness for any particular
purpose, or its compliance with any laws, and Buyer is not aware of and does not
rely upon any such representation to any other party. Buyer acknowledges that
the Purchase Price might be higher if Buyer were not acquiring the Property in
"as is" condition. Buyer acknowledges that it either has had or will have before
the Date of Closing the opportunity to make such inspections (or have such
inspections made by consultants) as it desires of the Property and all factors
relevant to its use, including, without limitation, the interior, exterior, and
structure of all Improvements, and the condition of soils and subsurfaces
(particularly with respect to the presence or absence of hazardous substances).
6.2 After its inspections are completed, Buyer shall restore the
Property to its condition prior to Buyer's inspections. Buyer agrees to
indemnify Seller for all claims or damages arising out of Buyer's inspections,
including, without limitation, claims for personal injury or property damage,
and including all costs and attorneys' fees. The obligations in this Section 6.2
shall survive the Closing or the termination of this Agreement for any reason,
including without limitation pursuant to Sections 5.3.2, 9.1, or 13 hereof.
6.3 Buyer hereby releases Seller and its agents, representatives, and
employees from any and all future claims, demands, and causes of action
occurring or accruing on the Date of Closing, that Buyer may have relating to
(i) the condition of the Property at any time, before or after the Date of
Closing, including, without limitation, the presence of any hazardous substance,
or (ii) any other matter pertaining to the Property. This release shall survive
the Closing or the termination of this Agreement for any reason.
7. Prior to Closing.
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7.1 Until Closing, Seller or Seller's agents shall:
7.1.1 INSURANCE. maintain the types and amounts of insurance
that are in force on the date of execution hereof; and
7.1.2 OPERATION. operate and maintain the Property
substantially in accordance with Seller's past practices with respect to the
operation of the Property, and deliver the Property to Buyer at Closing in its
present condition, normal wear and tear excepted, subject to Section 13 hereof.
7.2 NEW CONTRACTS. Between the Approval Date and the Date of Closing,
Seller will enter into only those Contracts which Seller believes are necessary
to carry out its obligations under Section 7.1.2 and which shall be cancelable
on not more than thirty (30) days' written notice. If Seller enters into any
such Contract, it shall promptly provide written notice
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thereof to Buyer and unless Buyer, within seven (7) days thereafter, notifies
Seller in writing of Buyer's intention to assume such Contract, it shall be
treated as a non-assumed Contract under Section 5.5 hereof.
7.3 NEW LEASES. Between the Approval Date and the Date of Closing,
Seller will not execute any new Leases or materially amend, terminate (except
upon a default by the tenant thereunder), or accept the surrender of any
existing tenancies or approve any subleases without the prior consent of Buyer,
which consent shall not be unreasonably withheld (having in mind commercially
reasonable matters such as the amount of rent, the term, and the use under the
proposed lease, and the proposed tenant's creditworthiness); provided however
that Seller is authorized to accept the termination of Leases at the end of
their existing terms and to expand, extend, or renew any Leases pursuant to
expansion, extension, or renewal options contained therein. With respect to all
Leases identified on EXHIBIT 1.1.6 hereto, which contain an expansion, extension
or renewal option and all new Leases executed after the Approval Date which
Buyer has approved (or should have approved in its reasonable discretion)
pursuant to this Section 7.3, which Leases require the construction of tenant
improvements and/or the payment of leasing or brokerage commission(s) by
landlord, including without limitation brokerage commissions upon the exercise
by the tenant thereunder of an expansion, extension, or renewal option contained
in such tenant's lease, Buyer shall: (a) pay, and/or reimburse Seller at Closing
for the paid portion of, the cost of such improvements and such leasing or
brokerage commission(s) and any other costs associated with such Lease; and (b)
assume all of Seller's obligations as landlord thereunder with respect to the
payment of tenant improvements and brokerage commissions after Closing. Failure
of Buyer to consent, or to expressly withhold its consent in writing stating
with specificity the reasonable basis of its objection, within forty-eight (48)
hours after written request by Seller for such consent, to any Lease submitted
by Seller to Buyer after the Approval Date, or the unreasonable refusal by Buyer
to grant its consent to any Lease or lease amendment submitted by Seller to
Buyer after the Approval Date, shall be deemed to constitute consent.
8. Representatives and Warranties.
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8.1 Seller represents and warrants to Buyer as follows:
8.1.1 Seller is a limited partnership, duly organized,
validly existing, and in good standing under the laws of the Commonwealth of
Massachusetts.
8.1.2 Subject to Section 9.2 hereof, Seller has all requisite
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder and the transactions contemplated hereby. This Agreement
has been, and the documents contemplated hereby will be, duly executed and
delivered by Seller and constitute Seller's legal, valid, and binding obligation
enforceable against Seller in accordance with its terms. The consummation by
Seller of the sale of the Property is not in violation of or in conflict with,
nor does it constitute a default under any term or provision of, the
organizational documents of Seller, or any of the terms of any agreement or
instrument to which Seller is a party, or by which Seller is bound, or any
provision of any applicable law, ordinance, rule, or regulation of any
governmental authority or any provision of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.1.3 Except as listed on EXHIBIT 8.1.3 hereto, to the best
of Seller's knowledge, Seller has not received, with respect to the Property,
any notices from (i) any governmental agency of any violations of building codes
and/or zoning ordinances or other governmental laws, regulations, or orders,
(ii) any governmental agency of any pending or threatened condemnation
proceedings, or (iii) any party of pending or threatened litigation affecting
the Property in any way.
8.1.4 To the best of Seller's knowledge, the list attached
hereto as EXHIBIT 1.1.6 is a true and complete list of all tenants and their
security deposits at the Property, the leases to be provided by Seller to Buyer
before the Approval Date are true and complete copies of all existing leases for
space at the Property, and, except as set forth on EXHIBIT 7.3 hereto, Seller
has paid all leasing commissions and tenant improvement costs incurred by Seller
as owner of the Property.
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8.1.5 To the best of Seller's knowledge, the list attached
hereto as EXHIBIT 1.1.7 is a true and complete list of all Contracts affecting
the Property, and the contracts to be provided by Seller to Buyer before the
Approval Date are true and complete copies of all existing Contracts for the
Property.
8.1.6 To the best of Seller's knowledge, Seller has received
no notice of the presence of any hazardous substances, as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 USC ss.9601(14), pollutants or contaminants, as defined in
CERCLA, 42 USC ss.9601(33), or hazardous waste, as defined by the Resource
Conservation and Recovery Act ("RCRA"), 42 USC ss.6903(5), or other similar
applicable federal or state laws and regulations, including, but not limited to,
asbestos and PCB's, at the Property, except as set forth in the report prepared
by Xxxxxx-Xxxxxx & Associates, Inc. and dated December 22, 1987, and except for
minor amount of substances customarily used in the maintenance of properties
similar to the Property and maintained in accordance with applicable laws.
8.2 Buyer represents and warrants to Seller as follows:
8.2.1 Buyer is a general partnership validly existing, and in
good standing under the laws of California and the state in which the Property
is located.
8.2.2 Buyer has all requisite power and authority to execute
and deliver this Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents
contemplated hereby will be, duly executed and delivered by Buyer and constitute
its legal, valid, and binding obligation enforceable against it in accordance
with its terms, and the consummation and performance by Buyer of the
transactions contemplated herein will not result in a violation of or be in
conflict with or constitute a default under any term or provision of the
organizational documents of Buyer, or any of the terms of provisions of any
agreement or instrument to which it is a party, or by which it is bound, or of
any term of any applicable law, ordinance, rule or regulation of any
governmental authority or of any term of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.3 The above-stated representations and warranties will survive the
Closing for a period of nine (9) months, before the expiration of which the
party claiming a breach must have filed an action in a court of competent
jurisdiction, and any representation and warranty not specified in such action
shall expire. Any such claim shall be limited to actual damages (specifically
including reasonable attorneys' fees and expenses and court costs) suffered by
the claiming party (specifically excluding consequential, punitive, or other
damages), and in no event shall the aggregate of such damages exceed $50,000.00.
Buyer acknowledges that Seller has maintained no employees at the Property and
that the Property has during Seller's ownership thereof always been managed by a
third-party manager, and that Seller has relied upon such manager for knowledge
and notice. The words "to the best of Seller's knowledge" in Section 8.1 mean to
the actual knowledge of Xxxxx X. Xxxxxx, Assistant Vice President, the employee
of Seller who is most familiar with the Property and who has had the most
contact with the management company.
9. Conditions Precedent.
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9.1 REPRESENTATIONS AND WARRANTIES. Each party's obligation to close
hereunder shall be conditioned upon the truth in all material respects as of the
Date of Closing of the other party's representations and warranties set forth in
Section 8 hereof. If on the Date of Closing a representation and warranty is not
true, and such representation and warranty either was not true on the date of
this Agreement, or was true on the Date of this Agreement but has become untrue
as a result of a breach of this Agreement by the party making the representation
hereunder, the other party may either seek its remedy pursuant to Section 18
hereof, waive this condition and proceed to Closing, or terminate this Agreement
by notice to the representing party. If on the Date of Closing a representation
and warranty is not true, and such representation and warranty was true on the
date of this Agreement and has become untrue not as a result of a breach of this
Agreement by the representing party, the other party may either waive this
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condition and proceed to Closing or terminate this Agreement by notice to the
representing party. Upon the representing party's receipt of notice of
termination pursuant to this Section 9.1, the Deposit shall be refunded and this
Agreement shall terminate, and neither party shall be liable to the other for
damages or otherwise except as otherwise expressly provided herein.
9.2 SELLER'S APPROVALS. Seller's obligation to close hereunder shall
be conditioned upon the approval of this transaction by Seller's internal
committees. If on or before December 18, 1998 Seller has not notified Buyer that
such approval has been granted, such approval shall be deemed not to have been
granted, and the Deposit shall be refunded and this Agreement shall terminate,
and neither party shall be liable to the other for damages or otherwise except
as otherwise expressly provided herein. If Seller's internal committees does not
approve of this transaction, Seller agrees to reimburse Buyer for the actual
out-of-pocket costs incurred by Buyer on or before the Approval Date, provided
Buyer submits to Seller paid invoices for actual cost incurred, up to a maximum
sum of $20,000.00.
9.3 TENANT ESTOPPEL LETTERS. Buyer's obligation to close hereunder
shall be conditioned upon Buyer's receipt and reasonable approval, no later than
5 o'clock P.M., Boston time, on January 22, 1999 of completed tenant estoppel
letters, in the form attached hereto as EXHIBIT 9.3A, from tenants of at least
seventy-five (75%) per cent of the rented space at the Property. The "Estoppel
Deadline" and the "Additional Estoppel Deadline" shall be the later of January
22, 1998 and January 29, 1999, respectively, or three (3) business days after
Buyer's receipt of the Tenant Estoppel Letters or the Tenant Update Estoppel
Certificate. On or about December 28, 1998, Seller shall direct its management
company to send tenant estoppel letters to all tenants at the Property. The
Estoppel Deadline shall be automatically extended to January 29, 1999 in the
event that Seller is unable to deliver seventy-five (75%) per cent of the tenant
estoppel letters for rented space at the Property by the Estoppel Deadline (the
"Additional Estoppel Deadline"). In addition, Seller shall be permitted to
deliver to Buyer a Seller's estoppel certificate, substantially in the form of
EXHIBIT 9.3B, for tenants of at least ten (10%) per cent of the rented space at
the Property such that Buyer will have completed tenant estoppel letters from
tenants of at least eighty-five (85%) per cent of the rented space at the
Property. In the event that the Tenant Estoppel Letters are unacceptable to
Buyer's lender, Seller will use reasonable efforts to obtain supplements to the
Tenant Estoppel Letters received from tenants who have executed the attached
Tenant Estoppel Letter. In addition, upon Buyer's reasonable request Seller
shall deliver Tenant Update Estoppel Certificate in the form of EXHIBIT 9.3C
attached hereto, to the tenants whose Tenant Estoppel Letters are outdated as
reasonably determined by Buyer or Buyer's lender. Buyer's reasonable approval
shall be such that Buyer will approve all Tenant Estoppel Letters which do not
materially amend or modify Exhibit 9.3A, for instance, in cases where the tenant
revisions or modifications are cosmetic rather than substantive, Buyer agrees to
accept such Tenant Estoppel Letters, notwithstanding tenant revisions or
modifications to same. Buyer at its option may object and shall have the right
to approve material tenant revisions or modifications, such as changes or/and
disputes which affect the financial and economic viability of the Property.
Buyer shall have three (3) business days after receipt of the Tenant Estoppel
Letters to approve same. If Buyer does not disapprove the Tenant Estoppel
Letters or the Tenant Update Estoppel Certificate within three (3) business days
after receipt, then Buyer shall be deemed to have approved same upon the
expiration of said three (3) business days.
10. Adjustments and Prorations.
--------------------------
10.1 All taxes, including, without limitation, real estate taxes
and personal property taxes, collected rents, charges for utilities, including
water, sewer, and fuel oil, and for utility services, maintenance services,
maintenance and service contracts, all operating costs and expenses, and all
other income, costs, and charges of every kind which in any manner relate to the
operation of the Property (but not including insurance premiums) shall be
prorated to the Date of Closing, except that if Seller does not receive the
Purchase Price (by receipt of wired funds or by receipt in hand of an official
bank cashier's check) by noon, E.S.T., on the Date of Closing, all prorations
shall be made as of the following business day. If the amount of said taxes,
assessments, or rents is not known on the Date of Closing, they shall be
apportioned on the basis of the amounts for the preceding year, with a
reapportionment as soon as the new amounts can be ascertained. If such taxes and
assessments shall thereafter be reduced by abatement, the amount of such
abatement, less the reasonable cost of obtaining the same, shall be apportioned
between the parties, provided that neither party shall be obligated to institute
or prosecute
9
-17-
proceedings for an abatement unless otherwise agreed. Buyer shall be responsible
for the payment of any assessments or notice of assessments made after the date
of execution hereof for any public improvement, provided Buyer takes title
hereunder. With respect to security deposits, if any, made by tenants at the
Property and actually received in hand by Seller, Buyer shall receive credit
therefor. Any deposits on utilities paid by Seller shall be returned to Seller.
The foregoing provisions of this Section 10.1 shall not apply to any taxes,
assessments, or other payments which are directly payable by tenants under their
leases or reimbursable by such tenants to the owner of the Property, as
landlord, under their leases. All adjustments and prorations shall be approved
by Buyer and Seller one (1) business day prior to Closing. On the Date of
Closing, Seller shall deliver to Buyer all inventories of supplies on hand at
the Property owned by Seller, if any, at no additional cost to Buyer.
10.2 POST-CLOSING COLLECTIONS. Buyer shall use its best efforts
during the twelve (12) month period immediately following the Closing to collect
and promptly remit to Seller rents or other amounts due Seller for the period
prior to Closing; provided that Buyer shall not be obligated to commence any
litigation to recover any rent arrearages. Seller shall also be permitted to
pursue collection of any rent arrearages applicable to the period prior to
Closing, provided that Buyer shall not incur any cost, expense or liability in
connection therewith, and provided further that Seller shall not commence any
legal or equitable proceedings in the nature of an unlawful detainer, eviction
or other proceeding which would have the effect of interfering with any tenant's
quiet enjoyment of its leased premises or result in a lien or encumbrance on
such leased premises. Buyer shall apply all rents or other amounts received by
Buyer, first for the account of Buyer for amounts currently due to Buyer; second
to Seller for any and all amounts due Seller for periods prior to Closing; and
the balance to be retained by Buyer.
11. Closing Documents.
-----------------
11.1 SELLER'S DELIVERIES. Conditioned upon performance by Buyer
hereunder, Seller shall execute and deliver to Buyer at Closing the following
documents ("Seller's Closing Documents"):
11.1.1 DEED. a special warranty deed in the form attached
hereto as EXHIBIT 11.1.1, conveying marketable title to the Land and the
Improvements subject to the Permitted Exceptions;
11.1.2 XXXX OF SALE. a xxxx of sale in the form attached
hereto as EXHIBIT 11.1.2, assigning and transferring to Buyer all of the right,
title, and interest of Seller in and to the Personal Property;
11.1.3 ASSIGNMENT OF LEASES. (i) the original Leases held at
the Property or in Seller's possession which are still in effect as of Closing
and any new Leases entered into pursuant to Section 7.3; (ii) a current listing
of any tenant security deposits and prepaid rents held by Seller with respect to
the Property; and (iii) an assignment of such Leases and security deposits in
the form attached hereto as EXHIBIT 11.1.3, which will include an
indemnification by Seller of Buyer for all landlord obligations accruing prior
to the Date of Closing;
11.1.4 ASSIGNMENT OF CONTRACTS. (i) copies of and all original
Contracts held at the Property or in Seller's possession relating to the
Property which Buyer has elected to assume or which are not terminable by Seller
on or before the Date of Closing; and (ii) an assignment of such Contracts,
which will include an indemnification by Seller of Buyer for all owner
obligations accruing prior to the Date of Closing;
11.1.5 NON-FOREIGN CERTIFICATE. a certification in the form
attached hereto as EXHIBIT 11.1.5 that Seller is not a non-resident alien (a
foreign corporation, partnership, trust, or estate as defined in the Internal
Revenue Code and Treasury Regulations promulgated thereunder);
11.1.6 ASSIGNMENT OF WARRANTIES AND GUARANTIES. an assignment
in the form attached hereto as EXHIBIT 11.1.3 of all transferable warranties and
guaranties then in effect, if any, with respect to the Improvements or any
repairs or renovations to such Improvements and the Personal Property being
conveyed hereunder;
10
-18-
11.1.7 BOOKS AND RECORDS. all original books and records held
at the Property by or for the account of Seller (other than any privileged,
proprietary or confidential records), including without limitation plans and
specifications and lease applications, as available; and
11.1.8 OWNER'S AFFIDAVIT. an owner's affidavit and such other
similar documents as are reasonably required from Seller pursuant to the Title
Commitment as a condition precedent to the issuance of an owner's title
insurance policy pursuant to the terms thereof.
11.1.9 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Seller
shall execute and deliver a reaffirmation of the representations and warranties
made herein as of the Date of Closing in the form attached hereto as EXHIBIT
11.1.9.
11.1.10 TENANT NOTICES. Notices to the tenants under all Leases
as of the occurrence of the sale of the Property in the form attached hereto as
EXHIBIT 11.1.10.
11.1.11 KEYS. All keys, codes, combinations for locks or safes
relating to the Property to the extent such items are in the Seller or the third
party manager's possession and control.
11.2 BUYER'S DELIVERIES. Conditioned upon performance by Seller
hereunder, Buyer shall execute and deliver to Seller at Closing the following
documents ("Buyer's Closing Documents"):
11.2.1 ASSUMPTION OF LEASES. an assumption of the Leases and
security deposits, which will include an indemnification by Buyer of Seller for
all landlord obligations accruing on or after the Date of Closing; and
11.2.2 ASSUMPTION OF SERVICE CONTRACTS. an assumption of the
Contracts which Buyer has elected to assume, which will include an
indemnification by Buyer of Seller for all owner obligations accruing on or
after the Date of Closing.
11.2.3 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Buyer
shall execute and deliver a reaffirmation of the representations and warranties
made herein as of the Date of Closing in the form attached hereto as EXHIBIT
11.1.9.
11.3 OTHER CLOSING DOCUMENTS. Each party shall deliver to the other
party or the Title Company such duly executed and acknowledged or verified
certificates, affidavits, and other usual closing documents respecting the power
and authority to perform the obligations hereunder and as to the due
authorization thereof by the appropriate corporate, partnership, or other
representatives acting for it, as counsel for the other party or the Title
Company may reasonably request.
11.4 CLOSING DOCUMENTS. Seller's Closing Documents, Buyer's Closing
Documents and the documents to be delivered pursuant to Section 11.3 hereof
shall hereinafter be referred to as the "Closing Documents".
12. COSTS. Buyer shall pay all settlement expenses, except as set forth in
the following sentence, in connection with the transfer of the Property,
including, but not limited to, personal property sales taxes, if any, recording
fees, Buyer's attorneys' fees, the costs of obtaining a commitment from a title
insurance company, one-half (1/2) of the escrow fees, and all other costs and
expenses incidental to or in connection with closing this transaction. Seller
shall pay only the attorneys' fees, if any, incurred by Seller in connection
with this transaction, real estate transfer taxes, the premium for Buyer's basic
title insurance policy and the cost of the comprehensive endorsement to remove
any encroachments, the cost of the Survey, one-half (1/2) of the escrow fees,
and the Broker's commission, but only if, as, and when the transaction
contemplated hereby is fully consummated and the deed is recorded and the full
consideration therefor has been received by Seller.
11
-19-
13. CASUALTY OR CONDEMNATION. In the event that prior to the Date of
Closing either the Improvements are damaged or destroyed, in whole or in part,
by fire or other cause, or any portion of the Land or the Improvements becomes
the subject of a condemnation proceeding by a public or quasi-public authority
having the power of eminent domain, then either (a) the parties shall proceed
with the transaction contemplated herein, in which event Buyer shall be entitled
to receive any insurance proceeds or condemnation awards, or (b) in the event
such damage, destruction, or condemnation involves, in the reasonable estimation
of Seller, a loss in an amount in excess of ten per cent (10%) of the Purchase
Price, or loss of all or a material portion of access to the Property, either
party, at its option, may terminate this Agreement by notice to the other within
ten (10) days of Buyer's receipt of Seller's notice of such damage or
proceeding, in which case the Deposit shall be refunded, and thereafter neither
party shall have any further obligation or liability to the other by virtue of
this Agreement, except as otherwise expressly provided herein.
14. INSURANCE. Seller shall not be obligated to assign to Buyer any fire,
hazard, or liability insurance policies which it holds respecting the Property,
and Seller shall have the right to any and all refunds or rebates resulting from
the termination of such policies. Notwithstanding the foregoing, in the event
that Buyer and Seller elects to proceed to Closing after any casualty as
provided in Section 13, above which is covered by insurance, whether by fire,
hazard, or other liability insurance policies, Buyer shall receive a credit
against the Purchase Price in the amount of Seller's deductible.
15. BROKER'S COMMISSION. Buyer and Seller each hereby warrants and
represents to the other that it has dealt with no broker or finder in connection
with this transaction except Insignia/ESG (the "Broker"), and that it is not
affiliated with the Broker in any way. Buyer and Seller each hereby agrees to
indemnify and hold the other harmless from and against any and all claims for
brokerage or finder's fees or other similar commissions or compensation made by
any and all other brokers or finders claiming to have dealt with the
indemnifying party in connection with this Agreement or the consummation of the
transaction contemplated hereby. The obligations in this Section shall survive
the Closing or the termination of this Agreement for any reason, including
without limitation pursuant to Section 5.3.2, 9.1, or 13 hereof.
16. SELLER'S PERFORMANCE. The acceptance of Seller's Closing Documents by
Buyer shall be deemed to be a full performance and discharge of every agreement
and obligation of Seller herein contained and expressed, except such as are, by
the terms hereof, to be performed after the delivery of said instruments.
17. RECORDING PROHIBITED. This Agreement shall not be recorded in any
Registry of Deeds or other office or place of public record. If Buyer shall
record this Agreement or cause or permit the same to be recorded, Seller may, at
its option, elect to treat such act as a default by Buyer under this Agreement.
18. Remedies.
--------
18.1 If Seller defaults under this Agreement, Buyer's sole remedy, at
law or in equity, shall be one of either (a) the return of the Deposit to Buyer
plus an additional sum of $100,000, which amount Buyer and Seller agrees will
fully compensate Buyer for the time and money expended by Buyer in connection
with Buyer's review and approval to purchase the Property, whereupon the
obligations of Seller under this Agreement shall terminate; or (b) the right to
obtain specific performance of Seller's obligation to convey the Property
pursuant to this Agreement, provided that in no event shall Seller be obliged to
undertake any of the following: (i) change the condition of the Property or
restore the same after any fire or casualty; (ii) expend money or post a bond to
remove or insure over a title defect or encumbrance or to correct any matter
shown on a survey of the Property; (iii) secure any permit, approval, or consent
with respect to the Property or Seller's conveyance, or (iv) cure defects
objected to by Buyer pursuant to Section 5.3.1 hereof. In no event shall any
officer, director, employee, agent, or representative of Seller have any
personal liability in connection with this Agreement or transaction.
18.2 If Buyer defaults under this Agreement, the sole remedy of Seller
shall be to retain the Deposit, which sum the parties fix and settle as
liquidated damages for such default of Buyer.
12
-20-
18.3 Nothing in this Section 18 shall limit the express provisions of
this Agreement obligating one party hereto to indemnify the other or to restore
the Property, including without limitation Sections 6.2 and 24 hereof.
18.4 In any action to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award of its attorneys' fees and costs.
19. ASSIGNMENT. This Agreement may not be assigned by Buyer without the
express written consent of Seller, which consent Seller may in its sole
discretion withhold, except that Buyer may, without Seller's consent, assign
this Agreement to a limited partnership of which Buyer (or a principal of Buyer)
or any parent or any wholly owned subsidiary of Buyer is the sole general
partner, or to a limited liability company of which Buyer (or a principal of
Buyer) or any parent or any wholly owned subsidiary of Buyer is the sole
manager. No such assignment shall operate to relieve Buyer from any obligation
hereunder.
20. WAIVER. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding breach
of any other agreement or provision herein contained. No extension of time for
the performance of any obligation or act shall be deemed an extension of time
for the performance of any other obligation or act.
21. TIME. It is agreed that time is of the essence of this Agreement.
22. GOVERNING LAW. This Agreement shall be construed under the laws of the
state in which the Property is located.
23. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and sent by overnight delivery service (such as Federal Express),
in which case notice shall be deemed given on the day after the date sent, or by
personal delivery, in which case notice shall be deemed given on the date
received, or by certified mail, in which case notice shall be deemed given three
(3) days after the date sent, or by fax (with copy by overnight delivery
service), in which case notice shall be deemed given on the date sent, to the
appropriate address indicated below or at such other place or places as either
Buyer or Seller may, from time to time, respectively, designate in a written
notice given to the other in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: File No. XX-00000
Xxxxxxxxx: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000 or 3866
Telephone No.: (000) 000-0000
With Copy To: Xxxx Xxxxxxx Realty Income Fund Limited Partnership
Law Department (T-50)
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: File No. XX-00000
Xxxxxxxxx: Xx. Xxxxx X. Xxxxxx
Fax No.: (000) 000-0000 or 9269
Telephone No.: (000) 000-0000
13
-21-
To Buyer: MG Development Company
00000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx Xxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
With Copy To: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxx, a Law corporation
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
24. CONFIDENTIALITY. Buyer shall not disclose the financial and
economic terms and conditions of the transaction contemplated herein except as
may be necessary in the ordinary course of its business. All press releases or
other dissemination of information to the media, or responses to requests from
the media, for information relating to the transaction contemplated herein shall
be subject to the prior written approval of Seller; provided that, following the
Closing, Seller's approval shall not be unreasonably withheld or delayed. The
obligations in this Section 24 shall survive the Closing or termination of this
Agreement for any reason.
25. ENTIRE AGREEMENT. This instrument, executed in duplicate, sets forth
the entire agreement between the parties and may not be canceled, modified, or
amended except by a written instrument executed by both Seller and Buyer.
26. COUNTERPARTS. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP
By: Xxxx Xxxxxxx Realty Equities, Inc.
By:
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
BUYER:
MG DEVELOPMENT COMPANY
By:
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Partner
14
EXHIBITS:
---------
1.1.1 - Legal Description
1.1.6 - Schedule of Leases
1.1.7 - Schedule of Contracts
7.3 - Tenant Improvements and Leasing Commissions
8.1.3 - Notices
9.3A - Tenant Estoppel Letter
9.3B - Seller's Estoppel Certificate
9.3C - Tenant Update Estoppel Certificate
11.1.1 - Special Warranty Deed
11.1.2 - Xxxx of Sale
11.1.3 - Assignment and Assumption of Space Leases, Service Contracts and
Warranties
11.1.5 - Non-Foreign Certificate
11.1.9 - Reaffirmation of Representations and Warranties
11.1.10 Tenant Notice Letter
15
EXHIBIT 1.1.1
-------------
Legal Description
-----------------
Lots 1 and 4, WARNER PLAZA, subdivision recorded in Book 275 of Maps, page 25,
records of Maricopa County, Arizona.
16
EXHIBIT 1.1.6
-------------
Schedule of Leases
------------------
o ALTERNATIVE IN HAIR - Lease dated March 27, 1995 with Xxx Xxxxxxxx, an
individual, dba Alternative in Hair, as amended. - Security deposit:
$889.00.
o ATHLETIC X-PRESS - Lease dated July 23, 1984 with Xxxxxx Shoe Corporation,
a New York corporation, dba Athletic Shoe Factory, as amended. - Security
deposit: $0.00.
o
o
o CRAFTMART - Lease dated April 21, 1981 with Thrift Builders Supply,
Inc. an Arizona corporation dba Angels Home Improvement Centers, a
subsidiary of Xxxxx Xxx Home Improvement Centers, Inc., as amended. -
Security deposit: $0.00. o
o DANSEHOUSE - Lease dated August 14, 1998 with Bonders and Mauro
Corporation, an Arizona corporation, dba The DanseHouse. - Security
deposit: $3,742.87.
o JOZIE'S CLEANERS - Lease dated January 1, 1988 with G & P Associates,
Inc., an Arizona corporation, dba Jozie's Cleaners, as amended. - Security
deposit: $881.25.
o
o
o MAIL BOXES ETC. - Lease dated April 28, 1998 with Xxxxxxx Xxxxxx, an
individual dba Mail Boxes Etc. - Security Deposit: $1,102.50. o
o XXXX, XXXX X., DDS - Lease dated January 8, 1982 with Xxxx Xxxx, D.D.S., as
amended. Security deposit: $0.00.
x
x XXXXXX'X OUTPOST - Lease (undated) Hub Distributing, Inc., a Delaware
corporation dba Xxxxxx'x Outpost for Levi's, as amended. - Security
deposit: $0.00.
o
o ONCE UPON A CHILD - Lease dated February 2, 1994 with Playrite, L.L.C. dba
Once Upon A Child, as amended. - Security deposit: $2,092.50.
o X.X. XXXXX PHOTOGRAPHY - Lease dated January 1, 1988 with X.X. Xxxxx
Photography, Inc., an Arizona corporation, as amended. - Security deposit:
$0.00.
o
o RYOBI AMERICA CORPORATION - Lease dated April 3, 1995 with Ryobi America
Corporation, as amended. - Security deposit: $2,481.10.
o HITTS SPORTS BAR AND GRILL - Lease dated June 26, 1998 with Third Xxxxx,
Inc., an Arizona corporation dba Xxxxx Sports Bar and Grill, as amended. -
Security deposit: $7,431.24. o
o WALGREENS - Lease dated September 14, 1984 with Walgreen Arizona Drug Co.,
an Arizona corporation, dba Walgreens. - Security deposit: $0.00.
o WATER MART - Lease dated September 21, 1990 with Xxxxx and Xxxxx XxXxx dba
Water Mart, as amended. - Security deposit: $0.00.
17
EXHIBIT C
---------
Schedule of Contracts
---------------------
====================================================================================================================================
COPY OF
SERVICE SERVICES CURRENT 30 DAY
CONTRACT VENDOR ADDRESS PHONE NO. ACCOUNT NO. RENDERED BILLING CANCELLATION
====================================================================================================================================
X Amtech Light Services 0000 X. Xxxxxxxxxx Xxx., (602) 275-7359 00-000000 Parking lot $92.00/month Yes
#100 lighting
Xxxxxxx, XX 00000 contract plus cost of
replacements
------------------------------------------------------------------------------------------------------------------------------------
X Area Wide Sweeping XX Xxx 000 (602) 230-4244 Parking lot $625.00/month Yes
& Maintenance Inc. Xxxxxxxx, XX 00000 sweeping
------------------------------------------------------------------------------------------------------------------------------------
X Bio-Chem Services 0000 X. Xxxxxxxxx (000) 000-0000 Pest control $60.00/month Yes
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
X CAM Services, Inc. 0000 X. Xxx Xxxx Xx. (602) 473-3456 General $788.00/month Yes
Xxxx Xxxxx, XX 00000 maintenance
------------------------------------------------------------------------------------------------------------------------------------
X Environmental Care, 00000 Xxxxxxx Xxxx. (000) 000-0000 HVAC $147.00/month Yes
Inc. (ECI) Xxxxxxxxx, XX 00000 403
------------------------------------------------------------------------------------------------------------------------------------
X PB Landscaping 4405 X. Xxxxx (602) 934-5345 Landscaping $1,875.00/month Yes
Service Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
X R & R Monitoring XX Xxx 0000 (602) 789-6286 Fire sprinkler $126.00/quarter Yes
Xxxxxxx, XX 00000 monitoring
------------------------------------------------------------------------------------------------------------------------------------
X Roadrunner XX Xxx 0000 (602) 789-6286 Flow Test $450.00/semi Yes
Xxxxxxx, XX 00000 annual
------------------------------------------------------------------------------------------------------------------------------------
X Truly Xxxxx of Commercial Division (000) 000-0000 8335-265 Pigeon control $79.00/month Yes
America, Inc. 0000 X. 00xx Xx. #000
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
X Waste Management 0000 X. 00xx Xxxxxx (000) 000-0000 000-00000 Trash removal $973.95/month Yes
of Xxxxxxx Xxxxxxx, XX 00000
====================================================================================================================================
18
EXHIBIT 7.3
TENANT IMPROVEMENTS AND LEASING COMMISSIONS
-None-
19
EXHIBIT 8.1.3
-------------
NOTICES
-None-
20
EXHIBIT 9.3A
TENANT ESTOPPEL LETTER
----------------------
TO:
----------------------------
----------------------------
----------------------------
RE:
----------------------------
--------------------,-------
Tenant:
----------------------------------------
Leased Premises:
-------------------------------
Gentlemen:
The undersigned is the Tenant under a Lease dated ____________, 19__ ("Lease")
between ____________________ as Lessor ("Landlord") and the undersigned as
Tenant ("Tenant"), for Tenant's leased space ("the Leased Premises") containing
approximately ______ net rentable square feet in the property located at
__________________________, ________________________, ____________________, (the
"Property"). Tenant understands that you have entered into a Purchase and Sale
Agreement to purchase the Property and that you will be obtaining financing from
a lender ("Lender") and as a condition of your obligation to purchase the
Property and Lender's obligation to make a loan, you have asked Tenant to
furnish, and Tenant, in accordance with the requirements of the Lease, is
willing to furnish the following information to you as purchaser of the Property
as successor landlord to Landlord under the Lease, and to Lender, as follows:
__________________________________________________
________________________________________________________________________________
________________________________________________________________________________
1. The Lease attached hereto as EXHIBIT A is a true, correct, and complete
copy of the Lease, with all amendments thereto. The Lease is in full force
and effect; any applicable free rent period has expired; all rental
payments under the Lease have been paid through __________________, 19__;
and no advance rentals (other than the security deposit referred to in
paragraph 9 hereof) have been paid by Tenant other than as follows:________
___________________________________________________________________________
___________________________________________________________________________
21
-2-
2. Tenant is paying the following amount as monthly basic rent under the
Lease:_____________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. In addition to the basic rental payments payable under the Lease, Tenant
is obligated to pay to Landlord the following amounts of additional rent:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. Tenant has no claims against Landlord, nor has Tenant made any claims
against Landlord within the previous 12 months, and, to the best of
Tenant's knowledge, Landlord is not in default under the Lease.
5. Tenant took possession of the Leased Premises as of ___________________,
19__, and is currently operating its business therein, Landlord has
fulfilled all of Landlord's obligations under the Lease in connection with
any improvements required by the terms of the Lease to be made by Landlord
or construction of repairs to, or remodeling of, the Leased Premises, and
Tenant to the best of its knowledge is not aware of the violation of any
rule or law regarding the use of Hazardous Materials in or about, or on the
Leased Premises, except as described below: (If none exist indicate
NONE)______________________________________________________________________
___________________________________________________________________________
6. The term of the Lease commenced on ___________________, 19__, and
terminates on _________________, 19__, subject to the following options or
rights to renew:___________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
7. Tenant, as of this date, has no charge, lien, or claim of offset under the
Lease, or otherwise, against rents or other charges due or to become due
thereunder, and Tenant has no unsatisfied claims against Landlord.
8. Tenant has no option, right of first refusal, right of first offer, or
other right to purchase all or any portion of the Leased Premises or all
or any portion of the Property, except as follows:_________________________
___________________________________________________________________________
___________________________________________________________________________
9. There have been no amendments to the Lease except as attached hereto.
22
-3-
10. Tenant has delivered to Landlord a cash security deposit of
$_____________, which has not been returned to Tenant or any other party
for the benefit of Tenant.
11. All references herein to Landlord shall apply to Landlord's predecessors,
successors, and assigns. Tenant understands that you and Lender are relying
on Tenant's representations in this letter in order to purchase the
Property, and Tenant further understands that Lender, as the holder of any
mortgage encumbering the Property at any time after the date hereof will
rely on Tenant's representations herein in order to make a mortgage loan in
connection with the purchase of the Property, and that Tenant shall be
estopped to deny the representations of Tenant contained in this letter.
Dated: Very truly yours,
--------------------------
Its
---------------------------
23
EXHIBIT 9.3B
SELLER'S ESTOPPEL CERTIFICATE
-----------------------------
In connection with that certain Purchase and Sale Agreement dated December
_____, 1998, by and between Xxxx Xxxxxxx Realty Income Fund Limited Partnership,
as Seller, and MG Development Company, as Buyer ("the Agreement"), the
undersigned Seller hereby certifies to Buyer as follows:
1. Attached hereto are certain tenant estoppel letters (each a "Letter")
that have not been signed and returned by the tenant named therein (each a
"Tenant") as of the date hereof. The undersigned Seller certifies that the
information set forth in paragraphs 1, 2, 3, 5, 6, 8, 9 and 10 of each Letter is
true and correct in all material respects, and that the information set forth in
paragraphs 4 and 7 of each Letter is, to the best of Seller's knowledge, true
and correct in all material respects.
2. The statements by Seller in this Certificate shall be subject to the
limitations set forth in Section 8.3 of the Agreement. If, after the date
hereof, Seller receives completed Letters from any Tenants, it may deliver those
to Buyer, and Buyer shall return to Seller the Letter attached hereto either
from the same Tenants or, if a Letter from the same Tenant is not attached
hereto, from tenants of, in each case, the largest amount of space which is less
than or equal to the amount of space rented by the Tenant whose Letter is being
delivered to Buyer, and upon such return to Seller, this Certificate shall not
apply to any such Tenant.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP
By:
--------------------------------
Name:
Title:
24
EXHIBIT 9.3C
TENANT UPDATE ESTOPPEL CERTIFICATE
Reference is herein made to that certain Tenant Estoppel Letter dated
_____________, 199__ executed and delivered by the undersigned to Landlord
relating to the undersigned's space at the Property, a copy of which is attached
hereto as EXHIBIT A (the "Original Certificate"). Terms not defined herein have
the meanings defined in the Original Certificate.
Tenant hereby agrees and certifies to Landlord, to any purchaser of the
Property as successor landlord to Landlord under the Lease, and to any of such
Purchaser's lenders, as follows:
The agreements and certifications made by Tenant in the Original
Certificate are true and correct as of the date hereof and are repeated as
though made on and as of the date hereof, except as follows:
--------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[If left blank, there are no exceptions]
----------------------------------
Executed and effective this day of , 199 .
----- ---------------- ---
Tenant:
---------------------------------
By:
-------------------------------------
Name:
Title:
25
EXHIBIT 11.1.1
SPECIAL WARRANTY DEED
This indenture, made by XXXX XXXXXXX REALTY INCOME FUND LIMITED
PARTNERSHIP, a Massachusetts limited partnership having its principal address
c/o The Real Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000, ("Grantor"), hereby conveys to ___________________, having
its principal address at _____________________, ("Grantee"), for the sum of
____________________ ($_________________), the land and buildings known as
__________________, located at ___________________, and described on EXHIBIT A
hereto (the "Property"). Together with all and singular the hereditaments and
appurtenances thereunto belonging, or in any wise appertaining; and the
reversion or reversions, remainder or remainders, rents, issues, and profits
thereof; and all the estate, right, title, interest, claim, or demand
whatsoever, of Grantor, either in law or in equity, of, in, and to the Property,
with the said hereditaments and appurtenances.
The Property is conveyed subject to the rights of all tenants or lessees or
other persons in possession and subject to all matters set out on EXHIBIT B
hereto, and Grantor will warrant and forever defend the title to the Property
against the lawful claims and demands of persons claiming by, through, or under
Grantor, except as aforesaid, but against none other. Grantor makes no other
warranties or covenants.
In Witness Whereof, Grantor has executed this special warranty deed as of
the ___ day of __________, 199_.
XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP
By:
--------------------------------
Officer:
Title:
00
-0-
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
) ss.
COUNTY OF SUFFOLK )
On this _____ day of _________, 199_, before me, the undersigned, a Notary
Public in and for the said Commonwealth, residing therein, duly commissioned and
sworn, personally appeared ______________, to me personally known, who by me
duly sworn, did say that he/she is a ______________ of Xxxx Xxxxxxx Realty
Income Fund Limited Partnership, that the seal affixed to the foregoing
instrument is the corporate seal of said Xxxx Xxxxxxx Realty Income Fund Limited
Partnership, and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors and as the free act and deed
of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in said County the day and year in this certificate first above written.
--------------------------
Notary Public
My commission expires:
EXHIBITS:
---------
A - Legal Description
B - Exceptions
27
EXHIBIT 11.1.2
--------------
XXXX OF SALE
Know all men by these presents, that XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP ("Grantor"), a Massachusetts limited partnership having its
principal address c/o The Real Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X.
Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, for and in consideration of the sum of ten
dollars and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, does bargain, sell, grant, transfer, assign,
and convey to __________________ ("Grantee"), having its principal address at
____________________________________, all of its right, title, and interest, if
any, in and to any and all tangible personal property owned by Grantor and now
at, in or upon or used in connection with the property known as
__________________ and located at __________________, (the "Property") and more
particularly described on EXHIBIT A attached hereto. Said tangible personal
property is being sold "as is" in place, and this assignment and transfer is
made (i) without representations or warranties of any kind, express or implied,
by Grantor, including, without limitation, as to the condition or performance
thereof, or its merchantability or fitness for a particular purpose, and (ii)
without recourse of any kind, or in any event, against Grantor, and (iii)
subject to any and all personal property taxes, or assessments of like nature,
due and payable from and after the date hereof.
In Witness Whereof, Grantor has executed this xxxx of sale as of the ____
day of _____________, 199_.
XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP
By:
--------------------------------
Officer:
Title:
EXHIBITS:
---------
A - Legal Description
28
EXHIBIT 11.1.3
ASSIGNMENT AND ASSUMPTION OF SPACE LEASES,
SERVICE CONTRACTS AND WARRANTIES
For and in consideration of the sum of ten dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP ("Assignor"),
a Massachusetts limited partnership having its principal address c/o The Real
Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx
00000, hereby transfers and assigns to ____________________ ("Assignee"), having
its principal address at _______________________________ , all of its right,
title, and interest in and to the following:
(a) those certain leases, licenses, and other agreements (the "Space
Leases") relating to the use and occupancy, present or future, of space at the
property known as _____________________ and located at
__________________________ (the "Property"), more particularly described on
EXHIBIT A attached hereto, and in the security deposits made pursuant to some or
all of the Space Leases, all as set forth in EXHIBIT B attached hereto (the
"Security Deposits");
(b) those certain service contracts (the "Service Contracts") relating to
the Property, as set forth in EXHIBIT C attached hereto, and all permits and
licenses relating to the Property; and
(c) all transferable warranties and guaranties issued in connection with
the Property which remain in effect as of the date hereof.
This assignment is made without warranty of any kind, express or implied,
by Assignor and without recourse of any kind against Assignor, except that
Assignor agrees to indemnify and hold Assignee harmless from and against any
claim, loss, or liability, including without limitation reasonable attorneys'
fees, with respect to Assignor's obligations under the Space Leases and the
Service Contracts arising prior to the date hereof.
In consideration of the foregoing assignment, Assignee hereby accepts this
assignment and hereby assumes and agrees to perform and comply with all the
covenants, conditions, agreements, and obligations of Assignor under the Space
Leases and the Service Contracts from and after the date hereof, including
without limitation any obligations as to payment of rental or leasing
commissions and tenant improvement costs or allowances hereafter arising.
29
-2-
Assignee hereby acknowledges receipt of the Security Deposits and
specifically assumes and agrees to pay the obligations and liabilities for all
Security Deposits, and further agrees to indemnify and hold Assignor harmless
from and against any claim, loss, or liability, including without limitation
reasonable attorneys' fees, with respect to all Security Deposits. Assignee
further agrees to indemnify and hold Assignor harmless from and against any
claim, loss, or liability, including without limitation reasonable attorneys'
fees, with respect to the Space Leases and the Service Contracts, with respect
to all obligations arising thereunder from and after the date hereof.
In Witness Whereof, the parties hereto have executed this agreement as of
this _____ day of ___________, 199_.
ASSIGNOR:
XXXX XXXXXXX REALTY INCOME FUND
LIMITED PARTNERSHIP
By:
--------------------------------
Officer:
Title:
ASSIGNEE:
-----------------------------------
MG DEVELOPMENT COMPANY
By:
--------------------------------
Officer:
Title:
EXHIBITS:
---------
A - Legal Description
B - List of Space Leases and Security Deposits
C - List of Service Contracts
30
EXHIBIT 11.1.5
--------------
NON-FOREIGN AFFIDAVIT
DATE
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by Xxxx Xxxxxxx Realty Income
Fund Limited Partnership, the undersigned hereby certifies the following on
behalf of Xxxx Xxxxxxx Realty Income Fund Limited Partnership:
1. Xxxx Xxxxxxx Realty Income Fund Limited Partnership is not a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as
those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Xxxx Xxxxxxx Realty Income Fund Limited Partnership's U.S. employer
identification number is ______________; and
3. Xxxx Xxxxxxx Realty Income Fund Limited Partnership's office address
is Xxxx Xxxxxxx Place, P. O. Xxx 000, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX
00000.
Xxxx Xxxxxxx Realty Income Fund Limited Partnership understands that this
certification may be disclosed to the Internal Revenue Service by transferee and
that any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Xxxx Xxxxxxx Realty Income Fund Limited Partnership.
---------------------------
Officer:
Title:
31
EXHIBIT 11.1.9
--------------
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
The undersigned hereby certifies to Buyer/Seller, a _____________
corporation ("Seller/Buyer"), on and as of the date set forth below that all of
its representations and warranties contained in Section 8 of that certain
Purchase and Sale Agreement (the "Agreement"), by and between Xxxx Xxxxxxx
Realty Income Fund Limited Partnership and Buyer, dated December ___, 1998 are
true and correct in all respects on and as of the date set forth below.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as of
this ____ day of ___________, 1999.
SELLER/BUYER
By:
---------------------------
32
EXHIBIT 11.1.10
---------------
TENANT NOTICE LETTER
--------------------
Tenants Listed on the Rent Roll
Attached hereto as Exhibit A
RE: WARNER PLAZA SHOPPING CENTER
NORTH XXXX SCHOOL ROAD
CHANDLER, ARIZONA
Dear Tenant:
You are hereby notified and advised that as of _____________, 1999, MG
Development Company, a ____________ corporation ("Purchaser") has purchased and
acquired from Xxxx Xxxxxxx Realty Income Fund Limited Partnership, a
Massachusetts limited partnership ("Seller"), all of Seller's right, title and
interest in and to Warner Plaza Shopping Center located in Chandler, Arizona
(the "Property") including, without limitation, all of Seller's right, title and
interest as the "Landlord," "Lessor" and "Owner" in and to all lease agreements,
rental agreements and other tenancies providing for the leasing, rental and
other occupancy of space within or upon the Property.
In accordance with the new ownership, you are hereby notified that your
security deposit, if any, has been transferred to Purchaser as of the date
hereof. Purchaser will notify you as to where all future, current, or past due
payments of rent should be made.
All other terms and provisions of your lease shall remain in full force and
effect.
Sincerely,
Xxxx Xxxxxxx Realty Income Fund Limited Partnership,
a Massachusetts limited partnership
By:
--------------------------------
33
-6-
AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------
AMENDMENT made and entered into this _____ day of January, 1999, by and
between XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP, a Massachusetts
limited partnership (herein "Seller") and MG DEVELOPMENT COMPANY, a California
general partnership (herein "Buyer");
WITNESSETH THAT:
WHEREAS, Seller and Buyer executed a Purchase and Sale Agreement dated
December 16, 1999 (the "Agreement"), pursuant to which Seller has agreed to sell
and Buyer has agreed to purchase the premises known as Warner Plaza Shopping
Center as more fully described in the Agreement; and
WHEREAS, Buyer and Seller wish to amend the terms of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth the Agreement is amended as follows:
1. DATE OF CLOSING. The Date of Closing pursuant to Section 4 of the
Agreement is hereby extended from February 12, 1999 to February 19,
1999.
2. FINANCING CONTINGENCY. The Financing Contingency pursuant to Section
5A of the Agreement is hereby extended from January 29, 1999 to
February 5, 1999.
3. OPTION TO EXTEND. Buyer shall continue to have the option, exercisable
by written notice delivered to Seller, to extend the Date of Closing
to March 4, 1999. Such extension of the Date of Closing shall be
exercised by Buyer no later than February 18, 1999 and pursuant to
Section 4 of the Agreement.
4. MISCELLANEOUS. Except as hereby amended, Buyer and Seller hereby
ratify, confirm and adopt the Agreement as amended by this Amendment.
Time remains of the essence.
5. AMENDMENT. All of the other terms and conditions of the Agreement not
modified or amended hereby, including without limitation Section 21
thereof, shall remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed in counterparts, which
together will constitute one original, and may be executed by fax.
6
34
-7-
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed as of the day and year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME
FUND LIMITED PARTNERSHIP, a
Massachusetts limited partnership
By: Xxxx Xxxxxxx Realty Equities, Inc.
By:
--------------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
BUYER:
MG DEVELOPMENT COMPANY
By:
-------------------------------------
Name:
Title:
7
35
-8-
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
-----------------------------------------------
SECOND AMENDMENT made and entered into as of this 18th day of February,
1999, by and between XXXX XXXXXXX REALTY INCOME FUND LIMITED PARTNERSHIP, a
Massachusetts limited partnership (herein "Seller") and MG DEVELOPMENT COMPANY,
a California general partnership (herein "Buyer");
WITNESSETH THAT:
WHEREAS, Seller and Buyer executed a Purchase and Sale Agreement dated
December 16, 1999, as amended by an Amendment to Purchase and Sale Agreement
dated January ___, 1999 (collectively, the "Agreement"), pursuant to which
Seller has agreed to sell and Buyer has agreed to purchase the premises known as
Warner Plaza Shopping Center as more fully described in the Agreement; and
WHEREAS, Buyer and Seller wish to amend the terms of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth the Agreement is amended as follows:
1. DATE OF CLOSING. The Date of Closing pursuant to Section 4 of the
Agreement is hereby extended from February 19, 1999 to March 22, 1999.
2. EXTENSION. Buyer shall deposit the Extension Fee as provided in
Section 4 of the Agreement with the Title Company within two (2)
business days of the full execution of this Second Amendment.
3. APPROVAL DATE. Buyer acknowledges that the Approval Date has expired
and that it has performed its due diligence for the Property and
waives its right to object pursuant to Sections 5, 5A and 9.3 of the
Agreement.
4. MISCELLANEOUS. Except as hereby amended, Buyer and Seller hereby
ratify, confirm and adopt the Agreement as amended by this Second
Amendment. Time remains of the essence.
5. AMENDMENT. All of the other terms and conditions of the Agreement not
modified or amended hereby, including without limitation Section 21
thereof, shall remain in full force and effect.
6. COUNTERPARTS. This Second Amendment may be executed in counterparts,
which together will constitute one original, and may be executed by
fax.
8
36
-9-
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed as of the day and year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME
FUND LIMITED PARTNERSHIP, a
Massachusetts limited partnership
By: Xxxx Xxxxxxx Realty Equities, Inc.
By:
-------------------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
BUYER:
MG DEVELOPMENT COMPANY
By:
-------------------------------------
Name:
Title:
9
