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EXHIBIT 10.15
AGREEMENT FOR THE PURCHASE AND
SALE OF COMMERCIAL REAL ESTATE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF COMMERCIAL REAL ESTATE
("Agreement") is entered into as of December 12, 1997 ("Effective Date")
between THE BOARD OF PENSION COMMISSIONERS OF THE CITY OF LOS ANGELES
("Seller") and UNITED INVESTORS REALTY TRUST, a Texas real estate investment
trust ("Buyer").
1. SALE OF PROJECT. Subject to the terms and conditions provided in this
Agreement, Seller agrees to sell and Buyer agrees to purchase all of Seller's
right, title and interest in and to the following described property
(collectively, the "Project"):
1.1 PROPERTY. The real property which is described on EXHIBIT A
attached hereto (the "Property").
1.2 BUILDING. The building which is located on the Property,
together with all other structures, fixtures and improvements owned by Seller
and located on the Property (the "Building").
1.3 EQUIPMENT. The items of equipment, furniture and other
personal property owned by Seller and located on the Property and used in
connection with the operation of the Property, excluding only those items
listed on EXHIBIT B attached hereto (the "Equipment").
1.4 LEASES. The leases, reservation agreements, other occupancy
agreements entered into by Seller with third parties for the use or occupancy
of space within the Building that are in effect as of the date of Seller's
execution of this Agreement and are listed in the schedule attached hereto as
EXHIBIT C (identifying the Tenants at the Project and providing certain
information with respect to the Leases delivered by Seller in accordance with
Section 4.7) or which are hereafter made in accordance with the provisions of
Section 5.1 (the "Leases").
1.5 SECURITY DEPOSITS. All security deposits, advance rentals and
similar deposits held by Seller at Closing in connection with the Leases (the
"Security Deposits").
1.6 SERVICE CONTRACTS. All service, maintenance and other
contracts entered into by Seller which relate to the maintenance or operation
of the Building or the Property that are in effect as of the date of Seller's
execution of this Agreement and listed in the schedule attached hereto as
Exhibit F or which are hereafter made in accordance with the provisions of
Section 5.1 (the "Service Contracts").
1.7 TRADE NAME. The name "Xxxxx Park Centre" to the extent of any
proprietary rights of Seller therein.
2. PURCHASE PRICE. The purchase price to be paid by Buyer to Seller for
the Project is $15,200,000.00 (the "Purchase Price"). The Purchase Price will
be paid by Buyer in the following manner:
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2.1 XXXXXXX MONEY DEPOSIT. Within two business days after the
later of the date Buyer or Seller signs this Agreement, Buyer agrees to deposit
the sum of $100,000.00 with Chicago Title - Dallas Direct, having its
principal office at 000 X. Xx. Xxxx, Xxxxx 000, Xxxxxx, XX 00000 (the "Title
Company"), as xxxxxxx money and as a deposit toward payment of the Purchase
Price (the "Xxxxxxx Money Deposit"). The Xxxxxxx Money Deposit shall be
deposited in a federally insured interest-bearing account. All interest earned
thereon shall become part of the Xxxxxxx Money Deposit. If the purchase and
sale hereunder are consummated in accordance with the terms and conditions
hereof, the Xxxxxxx Money Deposit shall be applied to the Purchase Price at the
Closing (as defined below). In all other events, the Xxxxxxx Money Deposit
shall be disposed of by the Title Company as provided elsewhere in this
Agreement.
2.2 FUNDS AT CLOSING. At Closing, Buyer shall pay to Seller the
balance of the Purchase Price, which balance shall be paid in cash, by bank
cashier's check or other certified funds.
3. TITLE MATTERS.
3.1 PERMITTED EXCEPTIONS. Seller shall transfer and convey its
right, title and interest in the Project to Buyer subject to the exceptions,
restrictions and encumbrances listed on EXHIBIT D attached hereto (the
"Permitted Exceptions").
3.2 TITLE COMMITMENT AND SURVEY. Seller shall, no later than ten
days after the Effective Date, deliver to Buyer a title commitment issued by
the Title Company to insure title to the Property and improvements thereon in
the name of Buyer and in the amount of the Purchase Price (the "Title
Commitment"). The Title Commitment shall contain the express commitment of the
Title Company to issue a Texas Form T-1 Owner's Policy of the Title Insurance.
The Title Commitment shall be accompanied by legible (if available) copies of
all instruments listed in the Title Commitment as exceptions to title to the
Property. At Closing, Seller shall cause the Owner's Policy of Title Insurance
to be issued to Buyer pursuant to the Title Commitment. If Buyer desires any
extended coverage, such coverage shall be at Buyer's sole cost. Seller shall
deliver to Buyer as soon as it is available a copy of the most recent survey of
the Property within Seller's possession, updated to within six weeks of the
Effective Date (the "Survey").
3.3 DEFECTS OF TITLE. Except for the Permitted Exceptions, Buyer
shall have the right to object to any defect of title which appears in the
Title Commitment or Survey and which prevents the title to the Project from
being indefeasible or which materially adversely affects the use or value of
the Project (a "defect of title"). Any objection to a defect of title must be
in writing and must be received by Seller no later than ten days after Buyer
has received the Title Commitment and the Survey. Notwithstanding the
foregoing, if a defect of title not revealed in the Title Commitment or the
Survey is revealed in such documents only after the expiration of the
Inspection Period and such defect is not caused by Buyer, Buyer shall have
until ten days after the date of its discovery of the defect of title or the
date of Closing, whichever is earlier, to provide Seller with notice of its
objection to the defect of title. Buyer's failure to provide Seller with
written notice of an objection to any title matter appearing in the Title
Commitment or Survey within such periods of time shall be deemed to be a
waiver by Buyer of any objection it might otherwise have; and all such title
matters shall become additional "Permitted Exceptions." If
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Seller receives timely written notice from Buyer of a defect of title, Seller
shall have the right, in its sole discretion, to exercise any of the following
options, within 15 days of Seller's receipt of Buyer's objections to title: (a)
correct or cure the defect of title, (b) obtain title insurance over the defect
of title through title policy endorsement or otherwise, or (c) notify Buyer
that Seller does not intend to cure or insure over the defect of title. Seller
shall have the right, in its sole discretion, to extend the date of Closing for
a period of time not to exceed fifteen days in which to attempt to correct or
cure a defect of title. If Seller is unable or unwilling to cure or insure
over a defect of title, Buyer shall have the right to either (a) terminate this
Agreement and its obligations hereunder, or (b) waive its objection to the
defect of title. If Buyer elects to terminate this Agreement, Seller shall
return the Xxxxxxx Money Deposit to Buyer and neither party shall have any
further obligation hereunder. If Buyer elects to waive its objection to the
defect of title, the title matter objected to shall thereafter be considered a
"Permitted Exception." A defect of title, regardless of its disposition under
this Section, shall not result in a reduction of the Purchase Price.
4. INSPECTION.
4.1 INSPECTION PERIOD. Buyer shall have until Tuesday, December
30, 1997 (the "Inspection Period") in which to make such examinations, studies,
tenant credit checks, appraisals, inspections, engineering, environmental and
insurance underwriting tests and investigations (the "Inspections") of the
Project at Buyer's sole cost and expense as Buyer may deem advisable. Such
Inspections shall include review of the Property Information as defined in
Section 4.7. If written notice of any unsatisfactory condition, signed by
Buyer, is not received by Seller on or before the end of the Inspection Period,
the physical condition of the Project shall be deemed to be satisfactory to
Buyer, and all of Buyer's contingencies under this Agreement shall be deemed to
be waived. If written notice of any unsatisfactory condition other than the
environmental condition of the Property (which is covered in Section 4.3),
signed by Buyer, is given to Seller prior to the end of the Inspection Period,
then this Agreement shall terminate automatically, the Xxxxxxx Money Deposit
shall be returned to Buyer, and the parties shall have no further obligations
or liabilities under this Agreement except as specifically stated otherwise.
4.2 ACCESS TO THE PROPERTY. During the Inspection Period Buyer
and its designated agents shall have access to the Project during normal
business hours to conduct physical inspections of the Project, provided that
Seller has received at least 48 hours advance written notice prior to such
access. At Seller's election, Seller may have a representative present during
any such inspection. Neither Buyer nor any of its designated agents shall be
entitled to conduct any investigation that involves boring or penetration into
the Property or the Building, including but not limited to "Phase II"
environmental testing, without the express written consent of Seller, which
consent shall not be unreasonably withheld or delayed. In addition, if Buyer
conducts a Phase II test, the Buyer shall enter into the Access Agreement in
the form attached hereto as EXHIBIT K. Any request by Buyer to Seller for
permission to conduct any such intrusive testing shall be in writing and shall
be accompanied by a written scope of the intended work in sufficient detail to
allow Seller to reasonably evaluate the request. Buyer shall be exclusively
responsible for all costs and fees associated with its investigation and review
of the Property. Buyer agrees to conduct and to cause its representatives to
conduct their investigations in a manner that does not cause any damage, loss,
cost or expenses to, or claims against Seller or the Property. Buyer
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agrees to repair any damage or disturbance Buyer or its representatives shall
cause to the Property, and Buyer agrees to defend, indemnify and hold Seller
harmless from and against any and all liabilities and claims, including
reasonable attorneys' fees, arising by reason of performance of any of such
inspections. This indemnification shall survive termination of this Agreement.
4.3 SELLER'S RIGHT TO CURE. If (i) any Environmental Phase I Site
Assessment or Environmental Phase II Site Assessment obtained by Buyer with
respect to the Property reveals a Hazardous Substance (as defined below) on the
Property for which Seller is liable and recommends remediation in connection
therewith, and (ii) Buyer delivers a copy of such assessment to Seller prior to
the expiration of the Inspection Period, and (iii) Seller, within twenty (20)
days after its receipt of such assessment, delivers notice to Buyer stating
that Seller refuses to remediate such Hazardous Substance as described below,
then Buyer may either: (i) waive such matters and proceed to close the
transaction contemplated hereby; or (ii) terminate this Agreement by notice in
writing given to Seller within seven (7) days after Buyer receives Seller's
notice of its refusal to remediate, and receive a refund of the Xxxxxxx Money.
Notwithstanding the foregoing, Seller shall have the right, but not the
obligation, to perform such environmental remediation. If Seller elects to
perform such remediation, then: (i) Seller shall provide written notice to
Buyer, within twenty (20) days after Seller's receipt of such assessment,
stating that Seller shall perform such remediation, (ii) on the completion of
such remediation, Seller shall obtain and deliver to Buyer a Texas Risk
Reduction Standard No. 2 (commercial standard) certificate of completion from
the State of Texas under its voluntary cleanup program that includes a release
of liability from the State of Texas in favor of Buyer for remediation of areas
covered by the certificate, and (iii) prior to commencement of the remediation,
Seller shall escrow with the Title Company an amount equal to 125% of the
estimated cost of the remediation as determined by Seller's engineer who will
oversee the remediation. Buyer acknowledges that any remediation by Seller may
be performed after Closing, and that the Closing of this transaction shall
proceed without any delay in accordance with this Agreement notwithstanding any
need for any such remediation. Buyer shall permit Seller and its
representatives and contractors to enter the Property after Closing, after
reasonable prior notice to Buyer, for any such remediation. Except as
described in this Section 4.3, and notwithstanding the provisions of Section
4.1, Buyer hereby waives any right to terminate this Agreement and receive a
refund of the Xxxxxxx Money due to the presence or threat of any Hazardous
Substances on the Property or the surrounding area. If Buyer does not
terminate this Agreement pursuant to this Section 4.3, Buyer shall conclusively
be deemed to have accepted the environmental condition of the Property. The
provisions of this Section 4.3 shall survive the Closing.
For purposes of this Agreement, the term "Hazardous Substance" shall
mean and include those elements or compounds which are contained on the list of
hazardous substances adopted by the United States Environmental Protection
Agency and the list of toxic pollutants designated by the Congress or the
Environmental Projection Agency under the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund Amendment and Reauthorization
Act, the Resource Conservation and Recovery Act, the Federal Water Pollution
Control Act, the Federal Environmental Pesticides Act, the Clean Water Act, the
Clean Air Act, the Texas Natural Resources Code, the Texas Water Code, the
Texas Solid Waste Disposal Act, the Texas Hazardous Substances Spill Prevention
and Control Act, any so-called state, federal or locate "Superfund" or
"Superlien" statute, or any other statute, law, ordinance, code, rule,
regulation,
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order or decree regulating, relating to or imposing liability (including strict
liability) or standards of conduct concerning any substances that are hazardous
to human health.
4.4 INSURANCE. Prior to any entry by Buyer or any of its
representatives onto the Property, Buyer shall provide to Seller evidence
satisfactory to Seller (including a certificate of insurance with appropriate
endorsements) that Buyer has in force adequate liability and worker's
compensation insurance with a combined single limit of not less than Two
Million Dollars ($2,000,000), naming Seller, Xxxx Enterprises Colorado, Inc.,
and Transwestern Property Company ("Seller's Property Manager") as additional
insureds, to protect such additional insureds against any and all liability,
claims, demands, damages and costs (including reasonable attorneys' fees and
other litigation expenses) which may occur as a result of any activity of Buyer
or any of its representatives on the Property. In no event shall the amount of
insurance carried by Buyer limit or release Buyer's indemnification contained
in Section 4.2 above.
4.5 REPORTS. All information, irrespective of the form of
communication, provided to or obtained by Buyer or its officers, employees,
agents, contractors, representatives or advisors (collectively and
individually, "Buyer's Representatives"), whether prepared by or on behalf of
Seller, by third party consultants engaged by Buyer, Buyer's Representatives or
otherwise, in connection with Buyer's investigation of the Property, shall be
kept in strict confidence by Buyer and Buyer's Representatives. In the event
that Buyer does not complete the purchase of the Property for any reason, any
and all studies, reports and other documents provided to or obtained by Buyer
or Buyer's Representatives, excluding only financial reports and forecasts
generated internally by Buyer in connection with such investigation process,
together with any and all copies thereof, shall be deemed the property of and
shall immediately be delivered or returned to Seller without charge.
Notwithstanding any provision of this Agreement which refers to the termination
of this Agreement and the return of the Xxxxxxx Money Deposit to Buyer, such
Deposit shall not be returned to Buyer unless and until Buyer has fulfilled its
obligation to return to Seller the materials described in the preceding
sentence. This provision shall survive the termination of this Agreement.
4.6 TENANTS. In no event shall Buyer or Buyer's Representatives
be authorized to conduct any activities under this Agreement or otherwise which
would in any way interfere with or disturb any Tenant of the Property. Buyer
shall not communicate with any Tenant of the Property without Seller's express
written consent and Seller may have a representative present during any such
communication. Buyer's obligation to consummate the transaction contemplated
hereby is conditioned upon Buyer's receipt on or prior to Closing of each of
the following Tenant Estoppel Certificates in the form annexed hereto as
EXHIBIT D from: (i) the following Tenants, Palais Royal, Cinemark, Petco and
Walgreens (the "Anchor Tenants"), (ii) those Tenants that lease in the
aggregate at least 75% of the total remaining leased area of the Project (other
than the area leased by the Anchor Tenants) as of the date of this Agreement
(collectively, the "Minimum Tenant Estoppels"). Notwithstanding the foregoing,
however, if Buyer does not receive all the Minimum Tenant Estoppels by Closing
then Seller may, at its election in its sole discretion, substitute Seller's
certificate to such matters ("Landlord's Estoppel") in substantially similar
form as attached hereto as EXHIBIT L for any missing Minimum Tenant Estoppels
which exceed 40% of the total remaining leased area of the Project other than
the area leased by the Anchor Tenants. Seller may not substitute any Tenant
Estoppel Certificates for any Anchor Tenants.
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4.7 BOOKS. Beginning on December 1, 1997, and continuing through
the expiration of the Inspection Period, upon reasonable prior notice from
Buyer to Seller, Seller shall make available for Buyer's inspection at the
offices of Seller's Property Manager, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx, 00000, all records, books, encumbrances, pledges, pleadings,
law suits, leases, material contracts and agreements, and all other documents,
items and materials relating to the Project (except for any agreements between
Seller's Property Manager and Seller and except for any privileged
communications, appraisals, and internal valuations) that are in the files
maintained by Seller's Property Manager (to the extent and only to the extent,
that Seller's Property Manager actually possesses such materials or
information), including, without limitation, the following: any inventory of
personalty, permits and other governmental licenses, site plans, construction
drawings, mechanical, electrical, structural, soils, roof, asbestos,
environmental and similar building inspection reports, "as built" plans and
specifications relating to the Property and Building, ad valorem tax statements
for the Property, and any notices of appraised value (collectively the
"Property Information").
Seller has furnished to Buyer a list of all tenant leases, service
contracts, equipment leases, warranties, management, maintenance, or other
agreements affecting the Property of which Seller has knowledge (as defined in
Section 6.1 below), together with copies of same, which copies, to Seller's
knowledge (as defined in Section 6.1 below), are true and complete.
Seller hereby expressly disclaims any warranties regarding the
accuracy, completeness, analysis or conclusions of any reports or other
information contained in its files (including Seller's Property Manager's
files), except as otherwise expressly provided in Section 6.1.
4.8 SELLER'S ACCESS. For a period of three years after the
Closing, Buyer shall allow Seller and its agents and representatives access
without charge to all files, records and documents delivered to Buyer at or
prior to the Closing, upon reasonable advance notice and at all reasonable
times, to examine and make copies of any such files, records and documents, at
Seller's expense.
5. SELLER'S COVENANTS PENDING CLOSING.
5.1 SELLER'S COVENANTS. From the Effective Date until the Closing
Date, Seller agrees, with respect to the Project that it will:
5.1.1 Operate the Project in a manner consistent with
historical practices of Seller and in accordance with all applicable laws;
5.1.2 Promptly notify Buyer in writing of any litigation,
arbitration or administrative hearing before any court or governmental agency
concerning or affecting the Project which is instituted after the Effective
Date and which comes to Seller's knowledge;
5.1.3 Following the expiration of the Inspection Period,
not terminate or modify any Lease or commence any judicial action against any
Tenant other than in the normal course of business without the prior written
consent of Buyer, which consent shall not be unreasonably withheld;
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5.1.4 Following the expiration of the Inspection Period,
not execute any new lease or agree to the terms of any lease renewal without
the prior written consent of the Buyer, which consent shall not be unreasonably
withheld;
5.1.5 Promptly notify Buyer in writing of any written
notice received from a Tenant of its election to vacate its leased premises or
terminate its Lease, or of any election by Seller to terminate any Lease or
commence any judicial action against any Tenant;
5.1.6 Not sell, exchange, transfer, assign, convey or
encumber or otherwise dispose of all or any part of the Property or Building
(except for leases permitted thereunder) or any interest therein, nor shall
Seller remove any material piece of Equipment unless Seller shall replace the
removed items with similar items of comparable quality;
5.1.7 Maintain the Project in its existing condition and
repair, except for normal wear and tear and casualty loss;
5.1.8 Following the expiration of the Inspection Period,
not, without the prior written consent of the Buyer, which will not be
unreasonably withheld, enter into or modify any service, maintenance or
management agreement which is not terminable on or before the Closing date;
5.1.9 Following the expiration of the Inspection Period,
not, without the prior written consent of Buyer, which will not be unreasonably
withheld, consent to any assignment or sublease or other encumbrance by a
Tenant of its interest, or any part thereof, in its Lease, except as may be
required by the terms of the Lease; or
5.1.10 With respect to any item in this Section 5 for which
Buyer's consent is required, Buyer shall be deemed to have given its consent to
any request of Seller to which Buyer has not rejected, in writing to Seller,
within five business days of Buyer's receipt of Seller's written request for
such consent, which rejection shall have been accompanied by a reasonably
detailed description of the reasons for such rejection.
5.2 BUYER'S DISAPPROVAL OF NEW LEASES. In the event that Buyer
timely disapproves a request for consent for the execution of a new
commercially reasonable lease, or a commercially reasonable modification,
termination, or extension of an exiting lease for which its consent is required
under this Section 5, within five business days thereafter, Buyer shall deposit
with the Title Company the sum of $50,000.00 (the "Additional Deposit"). The
Additional Deposit shall be nonrefundable to Buyer and shall remain the sole
property of Seller, except only in the event of a default by Seller under this
Agreement. Notwithstanding the foregoing, if the Closing occurs, Buyer shall
receive a credit towards the Purchase Price in the amount of the Additional
Deposit.
6. REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. In connection with
the following provisions and as referenced elsewhere in this Agreement, Buyer
agrees that notice or knowledge of Seller shall refer only to the conscious
actual knowledge of Seller's Property Manager, which shall exclude matters that
Seller or Seller's Property Manager would otherwise be considered to
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have constructive notice, matters that it might be claimed that Seller or
Seller's Property Manager should have known or in the exercise of reasonable
due diligence should have known, or matters that would create in Seller or
Seller's Property Manager any duty of inquiry. It is agreed that notices
issued by agencies, courts or administrative bodies that have not been actually
received by Seller or Seller's Property Manger shall not be considered to be
matters of which Seller or Seller's Property Manager have knowledge. In making
the following warranties and representations, Seller or Seller's Property
Manager shall not be required to make any independent investigation, to compel
any third party to make disclosures, or to obtain any information from any
third party. No imputation of knowledge or notice may be made except as
expressly described herein. Seller shall be deemed to have conscious actual
knowledge and possession only of those documents, instruments, or information
as are actually in the files of Seller's Property Manager as of this date.
Notwithstanding the foregoing, however, Seller agrees to cooperate with Buyer
in obtaining information reasonably requested by Buyer if Buyer lacks standing
to request same from any entity or body which possesses same.
Seller hereby represents and warrants to Buyer that, except as
otherwise disclosed in any exhibit attached hereto or in the Property
Information:
6.1.1 Except as expressly provided, Seller has the full
right, power, and authority to sell and convey to Buyer the Project as provided
in this Contract and to carry out Seller's obligations hereunder, and all
requisite action necessary to authorize Seller to enter into this Contract and
to carry out Seller's obligations hereunder has been, or on the Closing Date
will have been, taken;
6.1.2 To Seller's knowledge there are no adverse or other
parties in possession of the Project, or of any part thereof as lessees,
tenants at sufferance, or trespassers, except Tenants referenced in Exhibit C
or which are hereafter made in accordance with the provisions of Section 5.1;
6.1.3 Seller has not received written notice from any
governmental agency or insurance underwriter of any violation with respect to
the Project, which violation remains uncorrected. Without limiting the
generality of the foregoing, Seller notes a minor perc spill which has been
corrected in accordance with the State of Texas voluntary cleanup program and
for which a Texas Risk Reduction Standard No. 2 (commercial standard)
certificate of completion has been issued;
6.1.4 Seller has not received written notice of any pending
condemnation action with respect to all or any portion of the Project;
6.1.5 To Seller's knowledge there is no litigation pending,
affecting the Project other than as incurred in the normal course of business
or with respect to which Seller's insurance underwriter(s) is responsible (and
as listed in Exhibit M attached hereto);
6.1.6 This contract represents a valid and binding
obligation of the Seller enforceable in accordance with its terms;
6.1.7 The Seller has fee simple title to the Project;
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6.1.8 Seller is not a foreign person or entity pursuant to
the Foreign Investment in Real Property Tax Act, or the Tax Reform Act of 1984.
6.2 LIMITED SURVIVAL OF SELLER'S WARRANTIES. Notwithstanding
anything to the contrary contained herein, it is understood and agreed that the
representations and warranties of Seller in this Agreement and any that may be
contained in any Landlord Estoppels that may be delivered by Seller to Buyer
pursuant to Section 4.6 hereof shall survive the Closing for a period of one
hundred eighty (180) days following the Closing Date, and Seller shall have no
liability of any kind whatsoever for any breach thereof except to the extent
that a claim is asserted by Buyer against Seller within such one hundred eighty
(180) day period. For purposes of the foregoing sentence, Buyer shall have
asserted a claim against Seller if, prior to the expiration of said 180-day
period, Buyer shall have served Seller with written notice of Buyer's intent to
file a claim, together with a reasonably precise description of the factual and
contractual basis for such claim and the names of three mediators acceptable to
Buyer for mediation, as required below. If any of the representations or
warranties of Seller contained in Section 6 hereof are determined at any time
prior to the Closing Date to be untrue or unfulfilled to any material extent,
then Buyer, as its sole and exclusive remedy, may terminate this Agreement by
providing written notice of such termination to Seller within three business
days of such determination, in which event the Xxxxxxx Money Deposit shall be
returned to Buyer and thereafter neither Seller nor Buyer shall have any
further liabilities or obligations one unto the other. Should Buyer determine
following Closing that any of the warranties or representations of Seller set
out in this Agreement or in the Landlord Estoppels are untrue, Buyer and Seller
agree to submit to mediation any dispute regarding such warranty as a
prerequisite to the filing of any suit or action. Failure to submit to
mediation shall entitle Seller to abatement and dismissal of any action filed
until the required mediation occurs. The parties shall attempt to agree on the
mediator to be named, but in the event they cannot agree, the Chief District
Judge of the United States District Court for the Southern District of Texas,
Houston Division acting in his individual and not judicial capacity shall be
requested to name the mediator. The fees of any mediator shall be paid
one-half by each of Seller and Buyer. The provisions of this Section 6.2 shall
survive the Closing hereof.
6.3 BUYER'S REPRESENTATIONS. Buyer's representations and
warranties shall survive the Closing and shall not be merged therein. Buyer
represents, warrants, covenants, and agrees with Seller, as of the Effective
Date, that:
6.3.1 Except as otherwise hereinafter expressly provided,
Buyer has the full right, power, and authority to purchase the Project from
Seller as provided in this Contract and to carry out Buyer's obligations under
this Agreement, and all requisite action necessary to authorize Buyer to enter
into this Agreement and to carry out Buyer's obligations hereunder has been, or
on the Closing Date will have been, taken;
6.3.2 This contract represents the valid and binding
obligation of Buyer, enforceable in accordance with its terms;
6.3.3 Buyer acknowledges that Buyer has been advised in
writing that Buyer should have an abstract covering the Property examined by an
attorney of Buyer's own selection or that Buyer should be furnished with or
obtain a policy of title insurance.
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7. CONDITIONS PRECEDENT TO BUYER'S AND SELLER'S PERFORMANCE.
7.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. Buyer shall not
be obligated to consummate the transaction described in this Contract unless:
7.1.1 Seller shall have performed, observed and complied in
all material respects with all the covenants, agreements and conditions
required by this Agreement to be performed, observed and complied with by
Seller prior to or as of the Closing Date.
7.1.2 All representations and warranties made by Seller
hereunder shall be true, complete and accurate in all material respects as of
the Closing Date subject to the provisions of Section 6.2 above;
7.1.3 The Title Company shall be irrevocably committed to
deliver following Closing the Owner's Title Policy in the form described in
Section 3.2;
7.1.4 The Tenant Estoppel Certificates and/or Landlord's
Estoppels prescribed under Section 4.6 have been delivered to Buyer which
Tenant Estoppel Certificates and Landlord Estoppels shall substantially confirm
the information set forth in the Leases delivered pursuant to Section 4.7 of
this Agreement, as they may be modified in accordance with the terms of this
Agreement;
7.1.5 There shall be no material adverse change in matters
reflected in the Title Commitment or Survey.
7.2 FAILURE OF BUYER'S CONDITIONS PRECEDENT. In the event any of
the aforesaid conditions precedent shall not have been satisfied or shall not
exist on the date of Closing, then, unless Buyer shall have waived in writing
the satisfaction or existence of such condition precedent, in its election and
in its sole and subjective discretion, Buyer shall not be obligated to close
the transactions contemplated hereby, and Buyer shall be entitled to receive a
return of the Xxxxxxx Money Deposit. If the failure of any condition precedent
constitutes a default by Seller under this Agreement, Buyer shall have the
remedies provided by Subsection 14.2 below; otherwise, upon receipt of the
Xxxxxxx Money Deposit by Buyer, Buyer and Seller shall both be relieved of any
further liability or obligation hereunder.
7.3 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. Seller shall not
be obligated to consummate the transaction described in this Contract unless:
7.3.1 All representations and warranties made by Buyer
hereunder shall be true, complete and accurate in all material respects as of
the Closing Date;
7.3.2 Buyer shall have performed, observed and complied in
all material respects with all the covenants, agreements and conditions
required by this Agreement to be performed, observed and complied with by Buyer
prior to or as of the Closing Date.
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7.4 FAILURE OF SELLER'S CONDITIONS PRECEDENT. In the event any of
the aforesaid conditions precedent shall not have been satisfied or shall not
exist on the date of Closing, then, unless Seller shall have waived in writing
the satisfaction or existence of such condition precedent, in its election and
in its sole and subjective discretion, Seller shall not be obligated to close
the transactions contemplated hereby, and if the failure of any condition
precedent constitutes a default by Buyer under this Agreement, Seller shall
have the remedies provided by Subsection 14.1 below.
8. CLOSING.
8.1 CLOSING DATE. The closing of the purchase and sale of the
Project (the "Closing") shall be held on the 30th day after the expiration of
the Inspection Period unless the parties agree in writing on an earlier date,
or unless extended by Seller in accordance with Section 3.3. The Closing shall
occur at 10:00 a.m. at the offices of the Title Company.
8.2 BUYER'S OBLIGATIONS AT CLOSING. In addition to delivery of
the balance of the Purchase Price as described in Section 2.2, Buyer shall
execute and deliver the following to Seller at Closing:
8.2.1 An Assignment and Assumption of Leases and Service
Contracts in the form attached hereto as EXHIBIT F, pursuant to which Buyer
shall assume Seller's obligations under the Leases (including Seller's
obligations with respect to the Security Deposits) and the Service Contracts.
8.2.2 Such affidavits, instruments or agreements that may
be required by the Title Company in its issuance of the policy of title
insurance pursuant to the Title Commitment.
8.2.3 A statement which reflects the settlements and
prorations provided for in Section 6.
8.2.4 A certificate from Buyer certifying to Seller that
neither Buyer, nor any current officer, director or principal of Buyer, nor any
person currently in control of or under common control with Buyer: (i) is now,
or has ever been an employee or a relative of an employee of Seller, or a
trustee, agent, fiduciary or consultant of Seller or any of Seller's subsidies
listed in Schedule 8.2.4 to be attached hereto; (ii) now has, or has ever been
a relative of any of the known interested parties listed in Schedule 8.2.4; or
(iii) now has, or has ever had any personal or private commercial or business
relationship or affiliation with any of the known interested parties listed on
Schedule 8.2.4.
8.3 SELLER'S OBLIGATIONS AT CLOSING. Provided that Buyer performs
its obligations at Closing as set forth in Section 8.2, Seller shall execute
and deliver the following to Buyer at Closing:
8.3.1 A Special Warranty Deed in the form attached hereto
as EXHIBIT G conveying the Property and Building to Buyer, subject to the
Permitted Exceptions.
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8.3.2 A Xxxx of Sale in the form attached hereto as EXHIBIT
H conveying the Equipment to Buyer.
8.3.3 A counterpart of the Assignment and Assumption of
Leases and Service Contracts in the form attached hereto as EXHIBIT F assigning
the Leases and Service Contracts to Buyer.
8.3.4 The original Leases, or, if any original Leases are
not in Seller's possession or control, copies of any such Leases certified by
Seller as being true and correct;
8.3.5 An affidavit, in the form, or substantially in the
form, attached as EXHIBIT I, in compliance with Section 1445 of the Internal
Revenue code of 1986, as amended, and any regulations promulgated thereunder,
stating under penalty of perjury the Seller's United States identification
number and that Seller is not a "foreign person" as that term is defined in
Section 1445, duly executed and acknowledged by Seller;
8.3.6 A notice of sale in the form, or substantially in the
form, attached as EXHIBIT J (the "Tenant Notice Letter") for each of the
Tenants, duly executed by Seller.
8.3.7 If applicable, a Municipal Utility District notice,
substantially in the form attached hereto as EXHIBIT N.
8.3.8 A statement which reflects the settlements and
prorations provided for in Section 9.
8.3.9 Keys to the Building and possession of the Property.
9. SETTLEMENT AND PRORATIONS. The following items shall be prorated or
settled between Buyer and Seller at Closing:
9.1 TAXES AND ASSESSMENTS. Real property taxes and real property
assessments for the Property and the Building for the year of Closing, payable
in the following calendar year, shall be apportioned between Seller and Buyer
as of the date of Closing. Such apportionment shall be computed on the basis
of the most recent assessed valuation and mill levy information, and shall
constitute a final settlement. Buyer understands that it shall be solely
responsible for payment of all special assessments against the Property or the
Building which are assessed for improvements to the Property or the surrounding
land which are installed after the date of execution of this Agreement.
9.2 RENTS. Base rents, escalation or reimbursement payments for
real estate and personal property taxes, insurance premiums, CAM or other
operating expenses and charges, payable with respect to the Project for the
month of Closing shall be prorated as of the Closing Date. Percentage rents
for each Tenant obligated therefor shall be pro-rated on the basis of the
number of days lapsed during the Tenant's percentage rent period as of the
Closing Date and not on the basis of the amount of the Tenant's sales which
accrued during such percentage rent period as of the Closing Date. Such
prorations may not be capable of determination at the Closing Date, in which
event, such prorations shall be made within 90 days after Closing; provided,
however,
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that to the extent any Tenant required to pay percentage rent is not required
to report its sales within said 90-day period, then such proration shall be
made within thirty days following receipt by Buyer of such sales report. All
rents received by Seller under the Leases which are attributable to the period
of time prior to the date of Closing will be retained by Seller. All rents
received by Seller under the Leases which are attributable to the period of
time commencing as of the date of Closing and thereafter will be paid or
credited to Buyer. With respect to any Tenant ("Delinquent Tenant") who owes
rent and other charges which at Closing are more than 10 business days past
due, such past due rents and other charges ("Delinquencies") shall not be
prorated. Buyer shall remit such Delinquencies, if any, if, as and when
collected by Buyer. If a payment is received by Buyer from a Delinquent
Tenant, such payment shall be applied by Buyer first to the most recent rent
then due from such Tenant to Buyer, if any, then to any Delinquencies that are
owed to Seller. The right to receive and to collect all rents and profits,
delinquent or otherwise, shall be assigned by Seller to Buyer at Closing,
except that Seller shall retain the right to collect all Delinquencies from any
Tenants of the Project, including the right to xxx any such Delinquent Tenant
in a collection action; provided, however, that following the Closing, Seller
shall not have any right to commence or pursue any eviction action against any
Delinquent Tenant. Buyer agrees to use reasonable efforts to collect all such
rents on Seller's behalf.
9.3 SECURITY DEPOSITS. Seller, at its option, shall either (a)
deliver funds in an amount equal to the Security Deposits to Buyer at Closing,
or (b) have the amount of the Security Deposits credited against the Purchase
Price. In either event, Buyer shall be deemed to have accepted a transfer of
the Security Deposits from Seller at Closing.
9.4 LEASING COMMISSIONS. Seller shall be responsible for the
payment of all leasing commissions and referral fees relating to Leases entered
into prior to the Effective Date, other than those commissions or fees due or
payable as a result of the exercise of renewal options or other options or
rights under existing Leases which are exercised on or after the Effective Date
or as a result of any Leases executed on or after the Effective Date and any
renewal, expansion or other modification of Leases executed on or after the
Effective Date, in each case, in accordance with this Agreement, which shall be
Buyer's responsibility (provided that each of those Leases which are in effect
on the date of this Agreement are listed on EXHIBIT C to this Agreement or are
otherwise disclosed to Buyer in writing prior to the end of the Inspection
Period). Buyer shall reimburse Seller at the Closing to the extent Seller has
paid any such leasing commissions or referral fees which are the responsibility
of Buyer. Each party agrees to indemnify, defend and hold the other harmless
from and against any and all liability for leasing commissions, referral fees
and other costs and expenses owed by that party under this Section.
9.5 TENANT IMPROVEMENTS AND OTHER EXPENSES. Seller shall be
responsible for the payment of all tenant improvement expenses (including all
hard and soft construction costs, whether payable to the contractor or to the
tenant), tenant allowances, moving expenses and other out-of-pocket costs which
are the obligation of the landlord under the Leases entered into prior to
Effective Date, except as set forth in the following sentence with respect to
renewal options or expansion options under those Leases. Buyer shall be
responsible for the payment of all such tenant improvement expenses, tenant
allowances, moving expenses and other out-of-pocket costs which are the
obligation of the landlord under (A) existing Leases relating to the renewal
periods or additional space under renewal options or expansion options under
the existing
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Leases exercised on or after the Effective Date (provided those Leases are
listed on EXHIBIT C) or (B) the Leases entered into on or after the Effective
Date. Buyer shall reimburse Seller at the Closing to the extent Seller has
paid any such expenses which are the obligation of Buyer. Seller shall in no
event be obligated to pay for any change orders or additions to the tenant
improvements or changes in the scope of the work or the specifications agreed
to by Buyer and issued on or after the Closing Date.
9.6 PAYMENTS UNDER SERVICE CONTRACTS. All amounts due and payable
under the Service Contracts through the date of Closing shall be paid by
Seller. All payments due and payable under the Service Contracts during the
period of time from and after the date of Closing shall be paid by Buyer. For
purposes of the foregoing sentences, all payments due and payable under the
Service Contracts shall be determined by prorating the amount of the contract
over the term of the Service Contract or the period to which such payment
applies. So, for example, if a Service Contract has a term of thirty days with
a payment of $300 to be paid on the first day of the term of the Service
Contract, then the $300 payment shall be treated as if it is due and payable at
$10/day over the term of the Service Contract. Seller shall receive a credit
for the portion of any prepaid amount under a Service Contract which is
attributable to the period of time after the date of Closing. All deposits
under any of the Service Contracts shall be retained by Seller as its exclusive
property or Seller may elect to assign such deposits to Buyer and receive a
credit for such amounts at Closing. Seller shall terminate its property
management agreement at the Project with TransWestern Property Company (the
"Seller's Property Manager") within thirty days of the Closing, and Seller
shall remain responsible for the payment of any fees owed to Seller's Property
Manager arising after the Closing.
9.7 PERSONAL PROPERTY AND SALES TAXES. All personal property
taxes assessed against the Equipment through the date of Closing shall be paid
by Seller. All personal property taxes assessed against the Equipment from and
after the date of Closing shall be paid by Buyer. Buyer shall pay all sales
and use taxes associated with sale of the Equipment by Seller to Buyer.
9.8 UTILITY CHARGES. All utility charges will be prorated as of
the date of Closing, and Seller shall pay all charges assessed through the date
of Closing if a final billing is available. If a final billing is unavailable,
Seller shall deposit with the Title Company an amount estimated by the Title
Company to be sufficient to pay the final billing when it becomes available,
with any excess amount to be refunded to Seller. Seller shall receive a credit
for the portion of any prepaid amount which is attributable to the period of
time after the date of Closing. All deposits paid to utilities shall be
retained by Seller as its exclusive property or Seller may elect to receive a
credit at Closing in the full amount of such deposits.
9.9 MISCELLANEOUS CLOSING COSTS. Seller shall pay the costs
associated with providing Buyer with the title insurance policy described in
subsection 3.2. All real estate recording and documentary fees payable in
connection with the purchase and sale of the Project shall be paid by Buyer.
Any fee for closing services which is charged by the Title Company shall be
shared equally by Seller and Buyer. Except as otherwise expressly provided in
this Agreement, Buyer and Seller shall pay their own fees and expenses incurred
in the preparation, execution and performance of their respective obligations
under this Agreement.
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10. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
10.1 DISCLAIMER. Except only as otherwise explicitly provided
elsewhere in this Agreement, Buyer is relying solely on its own inspection and
examination in purchasing the Project; and is purchasing the Project on an
"AS-IS" basis with all faults and defects now known or hereafter discovered by
Buyer. Neither Seller nor any of its agents or representatives make any
representation or warranty to Buyer as to (a) the suitability of the Project
for Buyer's intended use, (b) the profitability of the operation of the
Project, or (c) any tax consequences, favorable or otherwise, resulting from
Buyer's acquisition or operation of the Project; and all such representations
and warranties are hereby expressly disclaimed by Seller. Any representations,
warranties or statements made by any agent or representative of Seller may not
be relied upon by Buyer and do not constitute a part of this Agreement. Buyer
acknowledges that Buyer has been given a reasonable opportunity to inspect and
investigate the Property, all improvements thereon, the Leases and all other
aspects relating to the Property, and Buyer is acquiring the Property based
solely upon Buyer's own investigations and inspections thereof, except as
expressly set forth herein. Buyer further acknowledges:
10.1.1 Buyer has, or by the expiration of the Inspection
Period will have, with the assistance of such experts as Buyer has deemed
appropriate, made its own independent investigations and studies, including
without limitation, a physical and environmental inspection, with respect to
the Property and all aspects thereof and it will be relying entirely thereon
and on the advice of its counsel, advisors and consultants concerning the
transaction contemplated in this Agreement. Buyer is not relying and shall not
rely on any investigation, study, projection or other information, economic or
otherwise, prepared by or on behalf of Seller, and;
10.1.2 Buyer has, or by the expiration of the Inspection
Period will have, with the assistance of such experts as Buyer has deemed
appropriate, examined and investigated the status of all circumstances
concerning the zoning, land use controls, building code compliance,
environmental regulations and other matters with respect to the Property.
10.2 BUYER'S ASSUMPTION OF RISKS. Upon Closing, Buyer shall assume
the risk that adverse matters, including but not limited to, construction
defects and adverse physical and environmental conditions, may not have been
revealed by Buyer's investigations. Buyer releases Seller and all of Seller's
agents and employees from, and waives all claims, demands, causes of action
(including causes of action in tort), losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) of any and every kind or
character, known or unknown, for or attributable to, any latent or patent
structural, physical or environmental condition at the Property or Seller's
failure to disclose the same. The provisions of this Section 7 shall survive
the Closing or termination of this Agreement.
10.3 DPTA WAIVER. As to any claims or causes of action arising or
alleged to have arisen out of this Agreement or the subject matter hereof, to
the fullest extent allowed by Law Buyer hereby expressly waives all rights and
remedies under the Texas Deceptive Trade Practices Act (Texas Business and
Commerce Code Section 17.41 et seq.), other than Section 17.555 thereof.
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11. PUBLICITY AND CONFIDENTIALITY. The parties shall at all times keep
the transactions contemplated in this Agreement and any documents received from
each other pursuant to this Agreement confidential, except to the extent
necessary to (i) comply with applicable law and regulations, (ii) or to provide
information to such attorneys, accountants and other professionals as either
party deems necessary in connection with the transactions contemplated in this
Agreement. Any such disclosure to third parties shall indicate that the
information is confidential and should be so treated by the third party. No
press release or other public disclosure may be made by Buyer or Seller or any
of their agents concerning the transactions contemplated in this Agreement
except in a form approved by both Buyer and Seller. The provisions of this
Section 11 shall survive the Closing or termination of this Agreement.
12. LOSS OR CASUALTY. The Project shall be conveyed in its present
condition, ordinary wear and tear excepted. If the Project is damaged by fire
or other casualty prior to the time of Closing, then by delivery to Seller of
written notice of election within five days after receipt of written notice of
such damage or other casualty, Buyer may elect to either (a) terminate this
Agreement, or (b) to continue this Agreement in full force and effect, in which
case Seller shall assign to Buyer at Closing any and all insurance proceeds
resulting from such damage to the Project, not exceeding, however, the total
purchase price, and Buyer shall take title to the Project subject to such
damage. Notwithstanding the foregoing, in the event that the cost to repair
any such damage or other casualty is reasonably estimated by Seller to be less
than Three Hundred Thousand Dollars ($300,000), and provided further that
insurance proceeds are made available to Buyer, then Buyer shall have no right
to terminate this Agreement, Seller shall assign to Buyer at Closing any and
all insurance proceeds, and Buyer is entitled to a credit of any deductible
amount arising under Seller's insurance policy, and Buyer shall take title to
the Property subject to such damage or other casualty. If Buyer fails to
deliver written notice to Seller of Buyer's election hereunder within said
five-day period, Buyer shall be deemed to have elected to continue the
Agreement in full force and effect. Buyer shall be entitled to re-inspect the
Project prior to Closing to determine whether any event of casualty has
occurred since the last inspection by Buyer during the Inspection Period.
13. CONDEMNATION. If, between the date of this Agreement and Closing, any
portion of the Project is taken in condemnation, the parties agree as follows:
13.1 UNESSENTIAL PORTION OF PROJECT. If the portion of the Project
be taken in condemnation is not essential to the continued use of the Project,
the Agreement shall continue in full force and effect. In such event, the
Purchase Price shall be paid by Buyer at Closing without reduction, but Seller
shall assign its right, title and interests in and to any award and shall remit
to Buyer all awards received by Seller as a result of the condemnation.
13.2 ESSENTIAL PORTION OF PROJECT. If the portion of the Project
taken in condemnation is essential to the continued use of the Project, Buyer
and Seller shall both have the option to terminate this Agreement and their
respective obligations hereunder. The option to terminate contained in this
subsection must be exercised by written notice to the other party no later than
five days after the party first becomes aware of the condemnation. If either
party exercises its option to terminate in accordance with this subsection, the
Title Company shall return the Xxxxxxx Money Deposit to Buyer and neither party
shall have any further obligation hereunder. If neither
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party exercises its option to terminate as provided in this subsection, the
Agreement shall continue in full force and effect. In such event, the Purchase
Price shall be paid by Buyer at Closing without reduction, but Seller shall
assign its right, title and interests in and to any award and shall remit to
Buyer all awards received by Seller as a result of the condemnation.
14. DEFAULT AND REMEDIES. In the event of default by either party under
this Agreement, Buyer and Seller agree as follows:
14.1 DEFAULT BY BUYER. If Buyer shall default in the performance
of its obligations hereunder to purchase the Project, Seller shall have the
right to terminate this Agreement and to retain the Xxxxxxx Money Deposit as
its sole and exclusive remedy.
14.2 DEFAULT BY SELLER. If Seller shall default in the performance
of its obligations hereunder to sell the Project, Buyer shall have the right to
either (a) terminate this Agreement and to obtain the return of the Xxxxxxx
Money Deposit, or (b) enforce this Agreement through an action for specific
performance. Buyer hereby waives its right to recover damages from Seller,
including without limitation any loss of profits, consequential damages,
punitive damages or any other damages or losses suffered by Buyer in connection
with this Agreement. Notwithstanding the foregoing sentence, in the event that
Seller conveys the Project to a third party in breach of the terms of this
Agreement, and such conveyance occurs without Buyer's knowledge such that Buyer
is unable to enforce the Agreement through an action for specific performance,
then, and only in such circumstance, Buyer shall be entitled to xxx Seller for
damages.
15. BROKERS. Seller represents and warrants to Buyer that no broker or
finder has been engaged by Seller other than Xxxxx & Xxxxx ("Broker") in
connection with any of the transactions contemplated by this Agreement. Seller
agrees to pay Broker a commission pursuant to a separate agreement between
Seller and Broker. Broker shall be solely responsible for paying a portion of
its commission to Aegis Realty Group, Inc. (San Antonio, Texas) ("Tenant's
Broker"), in accordance with an agreement between the two. Seller further
represents and warrants that no other person or entity now claims or will claim
any commission, finder's fee or other amounts by, through, under or as a result
of any relationship with Seller because of such transactions. Buyer represents
and warrants to Seller that Buyer has not engaged or dealt with any broker or
finder, other than Tenant's Broker, in connection with any of the transactions
contemplated by this Agreement. Buyer further represents that, other than
Tenant's Broker, no person or entity claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Buyer because of such transactions. Each party agrees to
hold the other party harmless from and against any and all costs, expenses,
claims, losses or damages, including reasonable attorneys' fees, resulting from
any breach of the representations and warranties contained in this Section.
This hold harmless provision shall survive the closing or termination of this
transaction.
16. ASSIGNMENT. Buyer shall not have the right to assign all or any part
of its interest or rights under this Agreement without the prior written
consent of Seller except that Buyer may assign this Agreement to a title
holding company in which Buyer owns a majority equity interest. Except as
provided herein, any attempted assignment by Buyer without such prior written
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consent, including assignments that would otherwise occur by operation of law,
shall be without force or effect as against Seller.
17. MISCELLANEOUS.
17.1 NOTICES. All notices required or permitted under this
Agreement shall be given by registered or certified mail, postage prepaid, or
by hand delivery or recognized overnight delivery service, or by telecopy (so
long as the original follows by regular mail or other form of delivery
permitted hereunder within five business days) directed as follows:
If intended for SELLER, to: The Board of Pension Commissioners of the
City of Los Angeles
c/x Xxxx Enterprises Colorado, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy in each case to: Holland & Xxxx LLP
000 00xx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and a copy in each case to: Xxxxxx, Xxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and a copy in each case to: Chicago Title - Dallas Direct
000 X. Xx. Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If intended for BUYER, to: United Investors Realty Trust
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx Xxxxx, Chief Operating
Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy in each case to: Xxxxx X. Xxxxxxx, Esq.
United Investors Realty Trust
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and a copy in each case to: Xxxxx, Xxxxxxx & Xxxxxxxx, P.C.
Attn: Xxxxxx X. Xxxxxxx, Esq.
8th Floor Texas Commerce Bank Bldg.
000 Xxxx Xxxx
Xx Xxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any notice delivered by mail in accordance with this paragraph shall be deemed
to have been duly given three days after the same is deposited in any post
office or postal box regularly maintained by the United States. Any notice
which is hand delivered or delivered by recognized overnight delivery service
shall be effective upon receipt by the party to whom it is addressed. Any
notice which is delivered by telecopy shall be effective upon receipt by the
sending party of written confirmation of receipt by the receiving telecopy
machine at the numbers shown above. Either party, by notice given as above,
may change the address or telecopy numbers to which future notices should be
sent.
17.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, executors, personal representatives, successors and permitted assigns.
Notwithstanding the foregoing, the provisions of this subsection shall not be
deemed to be a consent by Seller to any assignment of any interest or right of
Buyer under this Agreement, whether by operation of law or otherwise.
17.3 ENTIRE AGREEMENT. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between Seller and Buyer, and
may not be modified in any manner except by an instrument in writing signed by
both parties.
17.4 HEADINGS. The section and subsection headings contained in
this Agreement are inserted only for convenient reference and do not define,
limit or proscribe the scope of this Agreement or any exhibit attached hereto.
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17.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts which together shall constitute one and the same instrument.
Facsimile signatures hereon shall for all purposes be regarded as originals;
however, the parties shall deliver original signed copies within five days of
delivery of by facsimile.
17.6 UNENFORCEABLE PROVISIONS. If any provision of this Agreement,
or the application thereof to any person or situation shall be held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to persons or situations other than those to which it shall have been
held invalid or unenforceable, shall continue to be valid and enforceable to
the fullest extent permitted by law.
17.7 TIME OF THE ESSENCE. Time is strictly of the essence with
respect to each and every term, condition, obligation and provision of this
Agreement, and the failure to timely perform any of the terms, conditions,
obligations or provisions hereunder by either party shall constitute a breach
of and a default under this Agreement by the party so failing to perform. In
calculating any period of time provided for in this Agreement, the number of
days allowed shall refer to calendar and not business days. If any day
scheduled for performance of any obligation hereunder shall occur on a weekend
or holiday, the time period allowed and day for performance shall be continued
to the next business day.
17.8 WAIVERS. No waiver by either party of any provision hereof
shall be effective unless in writing or shall be deemed to be a waiver of any
other provision hereof or of any subsequent breach by either party of the same
or any other provision.
17.9 ATTORNEYS' FEES AND COSTS. In the event of litigation between
Seller and Buyer arising out of the enforcement of or a default under this
Agreement, the prevailing party shall be entitled to judgment for court costs
and reasonable attorneys' fees in an amount to be determined by the court.
17.10 GOVERNING LAW; CONSTRUCTION OF AGREEMENT. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Texas. Exclusive venue for all matters arising hereunder shall lie in Xxxxxx
County, Texas. Seller and Buyer and their respective counsel have reviewed,
revised and approved this Agreement. Accordingly, the normal rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
17.11 CONSIDERATION. Notwithstanding any other provision of this
Agreement, in the event that this Agreement is terminated for any reason and
Seller is not entitled to retain the Xxxxxxx Money Deposit, then $200.00 of the
Xxxxxxx Money Deposit shall be paid to Seller by Buyer as consideration for the
options given to Buyer in this Agreement.
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This AGREEMENT FOR THE PURCHASE AND SALE OF COMMERCIAL REAL ESTATE has
been executed as of the date first appearing above.
SELLER:
THE BOARD OF PENSION COMMISSIONERS
OF THE CITY OF LOS ANGELES
By: /s/ [ILLEGIBLE]
------------------------------
Its: General Manager
-----------------------------
BUYER:
UNITED INVESTORS REALTY TRUST,
a Texas real estate investment trust
By: /s/ [ILLEGIBLE]
------------------------------
Its: VP & COO
-----------------------------
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