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EXHIBIT 2.3
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (the "First Amendment") is made and entered into as of March 18,
1997, by and between Jagee Properties, Inc., a Kansas corporation ("Seller"),
and The Price Reit, Inc., a Maryland corporation ("Original Buyer").
A. Original Buyer and Seller are parties to that certain Purchase
and Sale Agreement and Escrow Instructions dated February 13, 1997 ("Purchase
Agreement"). Buyer has heretofore assigned all of its right, title and interest
in and to the Purchase Agreement to Price/Baybrook, Ltd., a Texas limited
partnership ("Buyer").
B. Buyer and Seller desire to amend the Purchase Agreement as set
forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
legally bind themselves and their respective successors and permitted assigns,
Seller and Buyer do hereby amend the Agreement as follows:
1. The Purchase Price is hereby amended to be, and shall
hereafter be deemed to be, Eight Million Five Hundred Six Thousand Two Hundred
Fifty Dollars ($8,506,250.00).
2. Notwithstanding anything to the contrary set forth in the
Purchase Agreement: (a) all rents and other income with respect to the
Property shall be prorated as of March 1, 1997; (b) in addition to Seller's
other obligations under the Purchase Agreement, Seller shall cause to be paid
at the Closing all rent payable by Bereans from March 1, 1997 to December 15,
1997 as if Bereans had no free rent period, and (c) in addition to Seller's
other obligations under the Purchase Agreement, Seller shall pay at the Closing
certain non-reimbursable expenses. The total credit due to Buyer resulting
from the credits described in the foregoing paragraphs (a) -(c) shall be
$221,250.00.
3. Capitalized terms not otherwise defined herein shall have the
meanings given them in the Purchase Agreement.
4. Except as modified herein, all terms, conditions and covenants
of the Purchase Agreement shall remain in full force and effect. This First
Amendment may be executed in multiple counterparts, all of which when taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the date first above written.
SELLER:
JAGEE PROPERTIES, INC.
By:___________________________
Its:__________________________
BUYER:
PRICE/BAYBROOK, LTD., a Texas limited
partnership
By: PRICE/TEXAS, INC., its general
partner
By:___________________________
Its:__________________________
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PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
By and Between
JAGEE PROPERTIES, INC.,
a Kansas corporation,
as Seller
THE PRICE REIT, INC.
a Maryland corporation,
as Buyer
and
SAFECO LAND TITLE COMPANY,
as Escrow Holder
February 13, 1997
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ARTICLE I PROPERTY 1
1.1 Land 1
1.2 Appurtenances 1
1.3 Improvements 1
1.4 Leases and Rents 2
1.5 Personal Property 2
1.6 Intangible Property 2
ARTICLE II ESCROW; PURCHASE PRICE 2
2.1 Opening of Escrow 2
2.2 Purchase Price 3
2.3 Payment of Purchase Price 3
2.4 Xxxxxxx Money Deposit 3
2.5 Investment of Deposit 3
2.6 Deposit as Liquidated Damages 3
ARTICLE III TITLE TO PROPERTY 4
3.1 Title 4
3.2 Other Conveyance Documents 4
ARTICLE IV CONDITIONS TO CLOSING 5
A. Buyer's Conditions to Closing 5
4.1 Non-Foreign Status of Seller 5
4.2 Review and Approval of Title and Survey 5
4.3 Review and Approval of Other Matters 5
4.4 Service and Other Contracts 6
4.5 Physical Characteristics of the Property 7
4.6 Governmental Permits, Approvals and Regulations 7
4.7 Representations and Warranties 7
4.8 Impairment of Property 7
4.9 Approval 7
4.10 Objections to Title or Survey 7
4.11 Objections to Property or Other Matters 8
4.12 Tenant Matters 8
4.13 REA Estoppels 9
4.14 Occupancy 9
4.15 Delivery of Documents 9
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B. Seller's Conditions to Closing 9
4.16 Delivery of Documents and Purchase Price 9
ARTICLE V CLOSING, RECORDING AND TERMINATION 9
5.1 Deposit with Escrow Holder and Escrow Instructions 9
5.2 Closing 9
5.3 Delivery by Seller 10
5.4 Delivery By Buyer 11
5.5 Other Instruments 11
5.6 Prorations 11
5.7 Costs and Expenses 13
5.8 Closing and Recordation 13
5.9 Termination of Agreement 13
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER 14
6.1 Authority 14
6.2 Title 14
6.3 The Leases 14
6.4 No Litigation or Adverse Events 15
6.5 Compliance With Laws 15
6.6 No Defaults in Other Agreements 15
6.7 Eminent Domain 15
6.8 Licenses, Permits, CO's, Zoning, etc. 15
6.9 Taxes and Assessments 15
6.10 Environment 15
6.11 Physical Condition 17
6.12 Employees 17
6.13 Mechanic's Liens 17
6.14 Operating Statements 17
6.15 Disclosure 17
6.16 No Leases of Property or Assets 17
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF BUYER 18
7.1 Representations and Warranties of Buyer 18
ARTICLE VIII POSSESSION, DESTRUCTION AND CONDEMNATION 18
8.1 Possession 18
8.2 Loss, Destruction and Condemnation 18
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ARTICLE IX MAINTENANCE AND OPERATION OF THE PROPERTY;
COVENANTS 20
9.1 Maintenance 20
9.2 Leases and Other Agreements 20
9.3 Encumbrances 21
9.4 Consents and Notices 21
9.5 Audit Cooperation 21
ARTICLE X MISCELLANEOUS 21
10.1 Notices 21
10.2 Brokers and Finders 22
10.3 Successors and Assigns 22
10.4 Amendments 23
10.5 Continuation and Survival of Indemnities, Representations,
Warranties and Post-Closing Obligations 23
10.6 Interpretation 23
10.7 Governing Law 23
10.8 Merger of Prior Agreements 23
10.9 Attorneys' Fees 23
10.10 Notice of Termination 23
10.11 Specific Performance; Damages 24
10.12 Relationship 24
10.13 Counterparts 24
10.14 Time of the Essence 24
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INDEX TO SCHEDULES
Schedule A Legal Description of the Land
Schedule B Form of Deed
Schedule C Form of Assignment and Assumption of Leases and Rents
Schedule D Form of Xxxx of Sale
Schedule E Form of Assignment of Contracts, Intangible Property,
Warranties and Guarantees
Schedule F Form of Non-Foreign Certificate
Schedule G Form of Tenant Estoppel Certificate
Schedule H Rent Roll
Schedule I List of Contracts
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DEFINITIONS
The following is a list of defined terms used herein and the sections
in which such terms are defined.
Term Section
---- -------
AGREEMENT INTRODUCTION
APPROVED CONTRACTS 4.4
APPURTENANCES 1.2
ASSIGNMENT OF INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES 1.6
ASSIGNMENT OF LEASES AND RENTS 1.4
XXXX OF SALE 1.5
BUYER INTRODUCTION
BUYER APPROVAL 4.9
CLOSING 5.2
CLOSING DATE 5.2
CODE 4.1
CONTRACTS 4.4
DEED 1.1
XXXXXXX MONEY DEPOSIT 2.4
ENDORSEMENTS 3.1
ESCROW HOLDER INTRODUCTION
EXTENDED COVERAGE TITLE POLICY 3.1
IMPROVEMENTS 1.3
INTANGIBLE PROPERTY 1.6
LAND 1.1
LEASES 1.4
MAJOR LEASE 4.8
RENT SUPPORT AGREEMENT 4.13
NON-FOREIGN CERTIFICATE 4.1
OUTSIDE CLOSING DATE 5.2
PERSONAL PROPERTY 1.5
PERMITTED EXCEPTIONS 4.10
PHASE I REPORT 4.5
PROPERTY 1.6
PURCHASE PRICE 2.2
REAL PROPERTY 1.6
RENT ROLL 6.3
RENTS 1.4
REVIEW PERIOD 4.11
SELLER INTRODUCTION
STANDARD COVERAGE TITLE POLICY 5.7
SURVEY 4.2(C)
TITLE COMPANY 3.1
TITLE REPORT 4.2(A)
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PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("AGREEMENT")
is made and entered into as of February ________, 1997, by and between JAGEE
PROPERTIES, INC., a Kansas corporation authorized to do business in Texas under
the name "JaGee Real Properties, Inc." ("SELLER"), THE PRICE REIT, INC., a
Maryland corporation ("BUYER"), and SAFECO LAND TITLE COMPANY ("ESCROW
HOLDER"), with reference to the following facts:
A. Seller is the owner of the Property, as hereinafter defined.
B. Buyer desires to purchase from Seller and Seller desires to
sell to Buyer the Property, all on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the mutual
agreements herein set forth, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer, and where
appropriate Escrow Holder, agree as follows:
ARTICLE I
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby
agrees to purchase from Seller, subject to the terms and conditions set forth
herein, the following:
1.1 Land. That certain real property (the "LAND") described in
Schedule A hereto, all of which shall be conveyed to Buyer pursuant to a
special warranty deed in the form of Schedule B hereto (the "DEED");
1.2 Appurtenances. Seller's interest in all rights, privileges
and easements appurtenant to and for the benefit of the Land, including,
without limitation, all minerals, oil, gas and other hydrocarbon substances on
and under the Land, as well as all development rights, air rights, water, water
rights and water stock relating to the Land and any other easements,
rights-of-way or appurtenances owned by Seller and used in connection with the
beneficial operation, use and enjoyment of the Land, the Leases, the Rents, the
Improvements, the Intangible Property, or any other appurtenance, together with
all rights of Seller in and to public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx,
alleys and passageways, sidewalks, driveways, parking areas and areas adjacent
thereto or used in connection therewith (open or proposed, in front of or
abutting the Land), and all rights of Seller in any land lying in the bed of
any existing or proposed street adjacent to the Land, all strips or gores of
land adjoining the Land, and any awards made or to be made and any unpaid award
for damage to the Land by reason of any change of grade of any such street,
road, avenue, alley or passageway (all of which are collectively referred to as
the "APPURTENANCES");
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1.3 Improvements. All improvements and fixtures owned by Seller
and located or to be located on the Land, including, without limitation, all
buildings and structures owned by Seller and presently located on the Land or
to be located thereon on the Closing Date, all apparatus, equipment and
appliances owned by Seller and presently located on the Land and used in
connection with the operation or occupancy thereof, such as heating and air
conditioning systems and facilities used to provide any utility services,
parking services, refrigeration, ventilation, garbage disposal, recreation or
other services thereto, and Seller's interest in all landscaping and leasehold
improvements of tenants, if any, which become the property of the owner of the
Land (all of which are collectively referred to as the "IMPROVEMENTS");
1.4 Leases and Rents. The landlord's rights under all leases,
occupancy agreements and other similar agreements to which Seller is a party or
by which it is bound, together with all modifications, extensions and renewals
thereof, and any guarantees of any of the foregoing with respect to or demising
any part of the Land, Appurtenances or Improvements (the "LEASES"), all income,
receipts, funds and revenues of any kind whatsoever payable with respect to the
period after the Closing Date (defined below) to Seller under the Leases or
otherwise with respect to all or any portion of the Land, Appurtenances or
Improvements (the "RENTS"), all of which Leases and Rents shall be transferred
and assigned to Buyer pursuant to an instrument in the form of Schedule C
hereto (the "ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS");
1.5 Personal Property. All tangible personal property owned by
Seller and located or to be located on, or situated or to be situated in and
used in connection with, the Land and/or the Improvements ("PERSONAL
PROPERTY"), all of which Personal Property shall be transferred and assigned to
Buyer pursuant to an instrument in the form of Schedule D hereto (the "XXXX OF
SALE"); and
1.6 Intangible Property. All of the interest of Seller in (i) any
intangible personal property which relates to and is reasonably required for
the operation and functioning of the Land, Improvements or Personal Property
generally, and (ii) any and all warranties, guarantees, permits, contracts and
other rights owned by Seller relating to the ownership, operation or
functioning of all or any part of the Property, as defined below (including
without limitation all third party guarantees and warranties, express or
implied, in connection with the construction of the Improvements) (all of which
are collectively referred to as the "INTANGIBLE PROPERTY"), all of which shall
be assigned to Buyer pursuant to one or more (as determined by Buyer)
assignments in the form of Schedule E hereto (the "ASSIGNMENT AND ASSUMPTION OF
CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES").
All of the items described in Sections 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6
above are hereinafter collectively referred to as the "PROPERTY." The items
described in Sections 1.1, 1.2, and 1.3 above are hereinafter referred to
collectively as the "REAL PROPERTY."
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ARTICLE II
ESCROW; PURCHASE PRICE
2.1 Opening of Escrow. Escrow Holder shall open and maintain an
escrow account for this Agreement (the "ESCROW"), which Escrow shall be deemed
to be open on the date (the "OPENING DATE") on which two (2) fully executed
copies of this Agreement and the Xxxxxxx Money Deposit, as set forth below, are
delivered to Escrow Holder. Escrow Holder shall promptly give notice to Buyer
and Seller of the Opening Date, which date shall in no event occur later than
three (3) business days after the execution of this Agreement by Buyer and
Seller.
2.2 Purchase Price. The purchase price for the Property shall be
Eight Million Three Hundred Thousand Dollars ($8,300,000.00) (the "PURCHASE
PRICE"). The Purchase Price shall be allocated among Land, Improvements,
Personal Property and Intangible Property as Seller and Buyer shall reasonably
determine.
2.3 Payment of Purchase Price. The Purchase Price shall be paid
by Buyer into the Escrow at the Closing by wire transfer of immediately
available funds in accordance with wiring instructions to be provided by Escrow
Holder; provided, however, that Buyer shall adjust the funds to be wired
pursuant to this Section 2.3 for the following: (i) the amount of credits due
to Buyer, or debits due from Buyer (as the case may be) for prorations
hereunder, and (ii) the amount of the Xxxxxxx Money Deposit (hereinafter
defined) plus earnings thereon.
2.4 Xxxxxxx Money Deposit. Concurrently with the delivery of two
(2) fully executed copies of this Agreement with Escrow Holder, Buyer shall
deposit with Escrow Holder the sum of One Hundred Thousand Dollars
($100,000.00) (the "XXXXXXX MONEY DEPOSIT") in the form of a check or wire
transfer. The Xxxxxxx Money Deposit shall become nonrefundable after the end
of the Review Period, unless this Agreement terminates other than due to a
default of Buyer hereunder; provided, however, that such Xxxxxxx Money Deposit
(i) shall not be released to Seller until the Closing, or until such time as
this Agreement terminates solely due to a default of Buyer hereunder, and (ii)
shall, at such time, be released to Seller only if Seller is not then in
default hereunder.
2.5 Investment of Deposit. Escrow Holder shall place the Xxxxxxx
Money Deposit in an interest-bearing account with a bank or savings
association, the deposits of which are federally insured, as Buyer may select.
All interest on the Xxxxxxx Money Deposit shall accrue for the benefit of Buyer
until the Closing. Notwithstanding the foregoing, however, in the event of any
default by Buyer hereunder, all interest earned on such account shall accrue to
the benefit of Seller. Seller shall not be responsible for, nor bear the risk
of loss of, the Xxxxxxx Money Deposit, and shall not be responsible for the
rate of return thereon.
2.6 Deposit As Liquidated Damages. IF THE SALE OF THE PROPERTY AS
CONTEMPLATED HEREUNDER IS NOT CONSUMMATED SOLELY BECAUSE OF A DEFAULT UNDER
THIS AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER SHALL PROMPTLY PAY OVER TO
SELLER THE XXXXXXX MONEY DEPOSIT, IF ANY,
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THEN BEING HELD BY ESCROW HOLDER, AND SELLER SHALL RETAIN THE XXXXXXX MONEY
DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL
DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR SIGNATURES BELOW, THE
PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE XXXXXXX MONEY DEPOSIT HAS BEEN
AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S
DAMAGES. THEREFORE, IF BUYER BREACHES THIS AGREEMENT AND WRONGFULLY FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED HEREIN, SELLER SHALL BE
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE XXXXXXX MONEY DEPOSIT. ON
RECEIPT AND RETENTION BY SELLER OF THE XXXXXXX MONEY DEPOSIT, THIS AGREEMENT
SHALL TERMINATE AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITY
HEREUNDER, EXCEPT WITH REGARD TO ANY OBLIGATIONS HEREUNDER THAT SURVIVE THE
TERMINATION HEREOF. THE PARTIES FURTHER ACKNOWLEDGE THAT THE XXXXXXX MONEY
DEPOSIT HAS BEEN AGREED UPON AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE
EVENT OF A DEFAULT ON THE PART OF BUYER EXCEPT WITH REGARD TO ANY OBLIGATIONS
HEREUNDER THAT SURVIVE THE TERMINATION HEREOF.
Seller:
------
Dated: February 13, 1997
-------------------
JAGEE PROPERTIES, INC., a Kansas corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxx, President
Buyer:
-----
THE PRICE REIT, INC.
Dated: February 12, 1997 By: /s/ XXXXXX XXXXXXXX
------------------- --------------------------------------
Its: SR. EXEC. V.P.
-------------------------------------
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ARTICLE III
TITLE TO PROPERTY
3.1 Title. At the Closing, Seller shall convey to Buyer fee
simple title to the Real Property, subject to the Permitted Exceptions (defined
below), pursuant to the Deed. In furtherance thereof, Seller shall cause
Safeco Land Title Company, as issuing agent for Chicago Title Insurance Company
(the "TITLE COMPANY"), to issue an Owner's Policy of Title Insurance on the
standard form as promulgated by the Texas Department of Insurance in the full
amount of the Purchase Price, insuring fee simple title to the Land and
Improvements in Buyer, with the survey exception deleted (except for "shortages
in area") at Buyer's expense, subject only to (i) the lien of real property
taxes for the then applicable fiscal year, to the extent not yet due and
payable, (ii) the lien of supplemental taxes imposed by reason of transfer on
or after the Closing, and (iii) the Permitted Exceptions (the "TITLE POLICY").
Notwithstanding anything to the contrary in this Agreement, Seller shall convey
the Appurtenances to Buyer without warranty of title.
3.2 Other Conveyance Documents. At the Closing, Seller shall (i)
assign the Leases and Rents to Buyer pursuant to the Assignment and Assumption
of Leases and Rents; (ii) transfer title to the Personal Property to Buyer
pursuant to the Xxxx of Sale, and (iii) transfer and assign to Buyer all of
Seller's rights in and to the Intangible Property pursuant to the Assignment of
Contracts, Intangible Property, Warranties and Guarantees; such title and
rights to be free of any liens, encumbrances or interests of third parties
other than the Permitted Exceptions.
ARTICLE IV
CONDITIONS TO CLOSING
A. Buyer's Conditions to Closing.
The complete satisfaction as of the expiration of the Review Period
(or such other date as may be specified herein) with respect to those matters
described in Sections 4.2-4.6 and 4.9-4.10 hereof, and as of the Closing Date
with respect to the balance of the following conditions, is a condition
precedent to Buyer's obligation to purchase the Property:
4.1 Non-Foreign Status of Seller. Seller's execution and delivery
to Buyer, on the Closing Date, of Seller's certificate in the form attached
hereto as Schedule F (the "NON-FOREIGN CERTIFICATE") stating, under penalty of
perjury, that (a) Seller is not a "foreign person" for the purposes of Section
1445 of the Internal Revenue Code of 1986, as amended (the "CODE"), and that
withholding of tax will not be required thereunder, and (b) withholding is not
required under the provisions of any state laws in connection with the
contemplated transfer of the Property by Seller to Buyer.
4.2 Review and Approval of Title and Survey. There shall be no
exceptions to title to the Property other than the Permitted Exceptions. In
connection with Buyer's review of title and related matters, Seller shall, at
its sole cost and expense unless otherwise specified herein,
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and as soon as practicable, but in no event later than fourteen (14) days after
the Opening Date, deliver to Buyer or cause Escrow Holder to deliver to Buyer
the following:
(a) A current commitment for title insurance for the
Property, issued by the Title Company, accompanied by legible record
copies of all of the documents referred to in the Title Report (the
"TITLE REPORT"); and
(b) Copies of all existing easements, covenants,
restrictions, agreements or other documents which affect the ownership
of or title to the Property and which are not disclosed by the Title
Report for the Property, if any, but which are known to Seller and
which would encumber the Property after the closing.
4.3 Review and Approval of Other Matters. In connection with
Buyer's review of other matters, Seller shall deliver to Buyer or cause to be
delivered to Buyer, at Seller's sole cost and expense, within fifteen (15) days
after the Opening Date, true, complete and correct copies of the following
items:
(a) A current survey of the Property in the form of an
Urban Land Survey, Condition II, as outlined by the most recent
edition of the Manual of Practice for Land Surveying in Texas,
certified to Buyer and in a form reasonably required by Buyer
consistent with the standards for a Condition II Survey (the
"SURVEY");
(b) Copies of all soils and hazardous materials reports,
termite reports, roofing reports, engineering studies, topographical
maps, appraisals and other reports, studies, maps and analyses with
respect to the Property, to the extent in Seller's possession;
(c) Copies of all approvals, permits and licenses from
all governmental authorities relating to the Property, to the extent
in Seller's possession;
(d) Copies of all correspondence, documents and
certificates from all governmental authorities with respect to the
Property to the extent in Seller's possession, including, but not
limited to, with respect to the zoning, building and platting status
of the Property;
(e) Copies of all service contracts relating to the
Property to the extent in Seller's possession;
(f) Copies of the real property tax bills, personal
property tax bills and assessed value notices for the Property for the
1996 and 1997 tax years;
(g) Copies of all tenant leases, proposed tenant leases,
rent rolls and sales reports relating to the Property;
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(h) Copies of all plans and construction drawings for all
buildings constructed or to be constructed on the Property and all
permits relating thereto to the extent in Seller's possession; and
(i) Copies of all insurance policies maintained by Seller
with respect to the Property for calendar years 1996 and 1997.
4.4 Service and Other Contracts. Buyer's review and approval, in
its sole and absolute discretion, of all utility contracts, water and sewer
service contracts, service contracts, warranties, permits, soils reports, and
other contracts or documents of any nature relating to the Property or any
portion thereof (the "CONTRACTS"; those Contracts which Buyer approves in
writing prior to the end of the Review Period (and prior to the Closing Date in
the case of contracts not entered into or delivered to the Buyer until after
the expiration of the Review Period) shall be referred to as the "APPROVED
CONTRACTS"). Buyer's remedy if it disapproves any Contract(s) shall be (i) to
the extent such disapproved Contract(s) can be terminated without penalty or
payment, to compel the Seller to terminate such disapproved Contract(s) on or
prior to the Closing, which Seller hereby agrees to do at its sole cost and
expense if so requested by Buyer, or (ii) to the extent Seller cannot terminate
such disapproved Contract(s), Buyer shall have the option, which must be
exercised within ten (10) days of Buyer's receipt of Seller's notice to Buyer
that Seller cannot terminate such disapproved Contract(s), or Closing
(whichever is earlier), (a) to waive Buyer's disapproval of the Contract(s) and
purchase the Property as otherwise contemplated in this Agreement, and Seller
shall convey the Property to Buyer, or (b) to terminate this Agreement by
written notice to Seller and Escrow Holder, whereupon any and all right and
obligations of Buyer and Seller hereunder shall terminate and within five (5)
days after Buyer has provided notice to Escrow Holder, Escrow Holder shall
deliver to Buyer the Xxxxxxx Money Deposit, together with interest thereon.
4.5 Physical Characteristics of the Property. Buyer's review and
approval, in its sole and absolute discretion, of (a) an environmental
assessment (which shall, without limiting the scope of the report, contain an
assessment of asbestos and radon affecting the Property) by an environmental
consultant of Buyer's choice and at Buyer's cost (the "PHASE I REPORT"), and
(b) the results of Buyer's physical inspection and testing of the Property, or
any portion thereof (which testing shall be conducted at Buyer's expense, and
may include, but shall not be limited to, testing for the presence of asbestos,
PCBs, as defined below, and other Hazardous Materials, as defined below,
including without limitation the performance of core sampling, drilling and
other intrusive testing outside of the Improvements or inside improvements
without interference with the tenants), of the structural, mechanical,
electrical and other physical or environmental characteristics of the Property,
including any tenant improvements or other construction installed or to be
installed as of the Closing Date. To the extent not prohibited by the Leases,
Seller shall allow Buyer reasonable access to the Property to perform any
physical inspection thereof which Buyer reasonably deems appropriate; provided,
however, that Buyer shall repair any damage caused by such inspections, shall
restore the Property to the condition existing prior to such inspection and
shall indemnify and hold harmless Seller against any loss or claim arising out
of personal injury or physical damage to property directly caused by Buyer or
its agents during any
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such inspection, which obligations shall survive the termination of this
Agreement and shall continue for a period of one year from the date of this
Agreement.
4.6 Governmental Permits, Approvals and Regulations. Buyer shall
have confirmed that all governmental permits and approvals with respect to the
Property relating to the zoning, entitlements, construction, operation, use or
occupancy of the Property or any portion thereof, are in full force and effect.
4.7 Representations and Warranties. All of Seller's
representations and warranties contained herein or made in writing by Seller
shall have been true and correct in all material respects when made and shall
be true and correct in all material respects as of the Closing Date except as
to items which Seller has informed Buyer as provided in Section 4.11., as
though made at, and as of, the Closing Date, and Seller shall have executed and
delivered all documents and complied with all of Seller's covenants and
agreements contained in or made pursuant to this Agreement.
4.8 Impairment of Property. No material adverse change shall have
occurred in the condition or ownership of the Property or any part thereof from
and after the conclusion of the Review Period. As of the Closing no part of
the Property, or any interest of Seller therein, shall be encumbered by any
lien, pledge, security interest, financing or due and unpaid charge, tax or
other imposition (other than Permitted Exceptions and items which will be
removed on or prior to the Closing Date), or damaged and not repaired to
Buyer's satisfaction or taken in condemnation or other like proceeding and no
such proceeding shall be pending or threatened, except as otherwise provided in
Section 8.2 hereof. There shall have occurred no material adverse change in
the financial condition of any tenant under any of the Leases demising five
thousand (5,000) square feet or more of the Improvements (each, a "MAJOR
LEASE") from that reported to Buyer on or prior to the conclusion of the Review
Period, and there shall be no default, or event that with the giving of notice
or the passage of time or both would constitute a default, under any Major
Lease unless such an event of default is disclosed in a Tenant Estoppel that
Buyer approves.
4.9 Approval of Buyer's Board of Directors. This Agreement and
the transactions contemplated hereby shall have been approved by Buyer's board
of directors (the "BUYER APPROVAL") on or before the expiration of the Review
Period.
4.10 Objections to Title or Survey. Buyer shall have until the
expiration of fifteen (15) business days from the later to occur of (i)
delivery of the Title Report and (ii) delivery of the Survey, to notify Escrow
Holder and Seller in writing of Buyer's disapproval of the condition of title.
Buyer shall give Seller and Escrow Holder written notice outlining in detail
any title items objected to and specifying Buyer's desired cure. Seller shall
have five (5) business days after receipt of Buyer's notice to advise Buyer and
Escrow Holder, in writing, as to whether Seller shall cure said objections
prior to the Closing (and should Seller fail to advise Buyer of Seller's
objection within such five (5) business day period, Seller shall be deemed to
have elected to refuse to cure said objections). In the event that Seller
elects not to cure such objections, or
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elects to cure such objections and fails or refuses to cure said objections,
Buyer shall have the option, which must be exercised within three (3) business
days of Buyer's receipt of Seller's response or deemed response, or Closing
(whichever is earlier), (a) to waive Buyer's objections and purchase the
Property as otherwise contemplated in this Agreement, notwithstanding such
objections, in which event the subject matter of such waived objections shall
be included within Permitted Exceptions, and Seller shall convey the Property
to Buyer, subject to the Permitted Exceptions, or (b) to terminate this
Agreement by written notice to Seller and Escrow Holder, whereupon any and all
right and obligations of Buyer and Seller hereunder shall terminate and within
five (5) days after Buyer has provided notice to Escrow Holder, Escrow Holder
shall deliver to Buyer the Xxxxxxx Money Deposit, together with interest
thereon; provided, however, that if Buyer fails to notify Seller and Escrow
Holder in writing, within three (3) business days of Buyer's receipt of
Seller's response or deemed response, as set forth above, then Buyer shall be
deemed to have waived Buyer's objections. All exceptions to title to, and/or
encumbrances against, the Property shown on the Title Report or Survey but not
objected to by Buyer, and those items referred to in items (i) and (ii) of the
second sentence of Section 3.1 hereof, shall be deemed "PERMITTED EXCEPTIONS";
provided, however, that Seller covenants to remove all monetary encumbrances
(other than those with respect to the liens referred to in items (i) and (ii)
of the second sentence of Section 3.1 hereof) affecting the Property or any
portion thereof prior to Closing, and Seller further agrees that no monetary
encumbrances other than the liens referred to in items (i) and (ii) of the
second sentence of Section 3.1 hereof shall be Permitted Exceptions.
4.11 Objections to Property or Other Matters. To the extent Seller
becomes aware that there is a change in any of the matters described in this
Article IV.A, or any such matters first become available or are supplemented
after the date hereof, Seller shall immediately inform Buyer of such change in
circumstances and deliver any such new or supplemental information to Buyer.
If Seller delivers that information to Buyer, Seller shall not be deemed to
have breached any representation or warranty related to the information
provided, but only to the extent of such information provided. Buyer shall
have until March 10, 1997 (the "REVIEW PERIOD"), to notify Seller in writing
either (i) of any objections Buyer has to the physical or financial state of
the Property, to the Phase I environmental report, to any contracts or leases
relating to the Property, to any item delivered (or not delivered) by Seller to
Buyer, or to any other matter covered by this Article IV.A other than Title or
Survey, or to notify Seller that Buyer has been unable to obtain the Buyer
Approval, the Tenant Estoppels or the REA Estoppels provided that Buyer shall
have until the Closing Date to approve the items specified in Sections 4.1, 4.7
and 4.8 hereof, or (ii) that such conditions are either satisfied or waived.
If Buyer delivers written notice to Seller prior to the end of the Review
Period that it elects to terminate this Agreement due to Buyer's uncured
objections, then this Agreement shall terminate and any and all right and
obligations of Buyer and Seller hereunder shall terminate, and within five (5)
days after Buyer provides notice of such termination to Escrow Holder, Escrow
Holder shall pay to Buyer the Xxxxxxx Money Deposit, together with interest
thereon. If Buyer does not give notice to Seller of termination due to its
uncured objections prior to the end of the Review Period, Buyer shall be
conclusively deemed to have waived any right to object and all conditions to
Buyer's obligations set forth in this Article IV other than the items specified
in Sections 4.1, 4.7, 4.8 and 4.14.
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4.12 Tenant Matters. Buyer shall have received and approved
written estoppel statements, in substantially the form as that attached hereto
as Schedule G, from each of the tenants under the Major Leases, and tenants
holding leases upon not less than eighty-five percent (85%) of the remaining
gross leasable area in the Property. Each such estoppel statement shall be in
form and substance acceptable to Buyer. Buyer shall have 5 days after the date
of Buyer's receipt of each such "TENANT ESTOPPEL" to notify Seller of any
objection Buyer may have regarding such estoppel, and in the event Buyer fails
to so notify Seller, Buyer shall be deemed to have approved such estoppel.
4.13 REA Estoppels. Buyer shall have received and approved such
written estoppel statements from each holder of a reciprocal easement agreement
affecting the Property as Buyer shall reasonably require. Each such estoppel
statement shall be in form and substance reasonably acceptable to Buyer. Buyer
shall have 5 days after the date of Buyer's receipt of each such "REA Estoppel"
to notify Seller of any objection Buyer may have regarding such estoppel, and
in the event Buyer fails to so notify Seller, Buyer shall be deemed to have
approved such estoppel.
4.14 Delivery of Documents. The due and timely delivery by Seller
of executed documents required by this Agreement, including without limitation
all of the documents and items specified in Section 5.3 below.
The foregoing conditions contained in this Article IV.A (except to the
extent otherwise provided in Article IV.B hereof) are intended solely for the
benefit of, and may be waived by, Buyer.
B. Seller's Conditions to Closing.
The following conditions are conditions precedent to Seller's
obligation to sell the Property:
4.15 Delivery of Documents and Purchase Price. Buyer's due and
timely performance of its obligations under this Agreement and its execution
and delivery of all documents and items to be executed and delivered by Buyer
(including without limitation the Purchase Price) pursuant to this Agreement,
including without limitation all of the documents and items specified in
Section 5.4 below.
The foregoing conditions contained in this Article IV.B are intended
solely for the benefit of Seller (except to the extent otherwise provided in
Article IV.A hereof).
ARTICLE V
CLOSING, RECORDING AND TERMINATION
5.1 Deposit with Escrow Holder and Escrow Instructions. Promptly
after execution of this Agreement, the parties hereto shall deliver two (2)
fully executed copy of this Agreement
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to the Escrow Holder and this instrument shall serve as the escrow instructions
to the Escrow Holder for consummation of the purchase and sale contemplated
hereby. Seller and Buyer agree to execute such additional and supplementary
escrow instructions as may be appropriate to enable the Escrow Holder to comply
with the terms of this Agreement; provided, however, that in the event of any
conflict between the provisions of this Agreement and any supplementary escrow
instructions, the terms of this Agreement shall control.
5.2 Closing.
(a) The Closing Date shall occur no later than March 25,
1997 (the "OUTSIDE CLOSING DATE"). The Closing and the Closing Date
shall not have occurred until the Purchase Price shall have been paid
by Buyer to Escrow Holder as provided herein. The "CLOSING" shall be
deemed to have occurred on the date that all of the events specified
in Section 5.8 of this Agreement shall have occurred. The "CLOSING
DATE" shall be the date on which the Closing occurs.
(b) In the event the Closing does not occur on or before
the Outside Closing Date, subject to any extension to the Outside
Closing Date contemplated by Article VIII hereof, the Escrow Holder
shall, unless it is notified by Buyer to the contrary within five (5)
days after such date, return to the depositor thereof all items (other
than the Xxxxxxx Money Deposit, which shall be disbursed in accordance
with Section 2.6 hereof) which may have been deposited with Escrow
Holder hereunder. Any such return shall not, however, relieve either
party hereto of any liability it may have for its wrongful failure to
close. Buyer shall, within five (5) days after the termination of
this Agreement in accordance with the terms hereof, return to Seller
all documents and materials delivered to Buyer hereunder by or on
behalf of Seller.
5.3 Delivery by Seller. At the Closing, Seller shall deposit with
the Escrow Holder, for the benefit of Buyer, or deliver directly to Buyer the
following:
(a) The Deed and the Assignment and Assumption of Leases
and Rents, each duly executed and acknowledged by Seller, in
recordable form, and ready for recordation in the official records of
the jurisdiction in which the Land is located (the "OFFICIAL
RECORDS");
(b) The Xxxx of Sale duly executed by Seller;
(c) A certificate from the office of the county clerk of
the county in which the Land is located and of the county in which
Seller's principal office is located, together with a certificate from
the Office of the Secretary of State of the State of Texas, each dated
within thirty (30) days after the Closing Date, listing, as of the
date of such certificate, all filings against Seller in said offices
under the Commercial Code of Texas which would be a lien on any of the
Personal Property, or a report from a recognized
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UCC reporting service acceptable to Buyer as to those matters,
together with fully executed termination statements with respect to
such filings;
(d) Originals or copies of any warranties and guaranties
in Seller's possession received by Seller and to be assigned to Buyer,
from any contractors, subcontractors, suppliers or materialmen in
connection with any construction, repairs or alterations of the
Improvements or any tenant improvements;
(e) The Assignment and Assumption of Contracts,
Intangible Property, Warranties and Guarantees, duly executed by
Seller and acknowledged, assigning all of Seller's interest in the
Intangible Property, together with written terminations of any
Contracts which are not Approved Contracts;
(f) Originals or copies of all certificates of occupancy,
licenses and permits for the Improvements in Seller's possession;
(g) All existing as-built plans and specifications for
the Improvements in the possession of Seller;
(h) A closing statement prepared by Escrow Holder in form
and content consistent with this Agreement and otherwise reasonably
satisfactory to Buyer and Seller;
(i) The Non-Foreign Certificate, duly executed by Seller;
and
(j) Complete originals of the Leases with respect to the
Property and copies of all records in Seller's possession, books of
account, ledgers, statements and other business records relating to
the operation of the Property and/or the administration of the Leases,
in whatever mode maintained, including information contained on
computer disks; and
(k) A letter to each Tenant stating that the Property has
been sold, that Buyer is assuming the obligations of the landlord
under the Lease arising after the Closing Date, the amount (if any) of
security deposit and escrow for reimbursable expenses which have been
transferred to and assumed by Buyer, and Buyer's address for purposes
of rent payments and notices (the "TENANT NOTICE LETTERS").
Buyer may waive compliance on Seller's part under any of the foregoing
items by an instrument in writing.
5.4 Delivery By Buyer. Buyer shall execute and deliver to Escrow
Holder, for the benefit of Seller, or directly to Seller;
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(a) The Assignment and Assumption of Leases and Rents,
duly executed and acknowledged by Buyer;
(b) The Assignment and Assumption of Contracts,
Intangible Property, Warranties and Guarantees, duly executed by Buyer;
(c) The Tenant Notice Letter, duly executed by Buyer; and
(d) such other documents and instruments as may be required to
the close the transactions contemplated hereby, which documents and
instruments shall be in form and substance reasonably acceptable to
Buyer. After Buyer's or Escrow Holder's receipt of all of the items
specified in Section 5.3 hereof, after the complete satisfaction or
waiver of all of the conditions precedent to Buyer's obligations
hereunder, and after the expiration of the Review Period, Buyer shall
deliver the Purchase Price to Escrow Holder as provided in Section 2.2
above.
5.5 Other Instruments. Seller and Buyer shall each deposit such
other instruments as are reasonably required by Escrow Holder or otherwise
required to close the escrow and consummate the purchase of the Property in
accordance with the terms hereof.
5.6 Prorations. At Closing, the parties shall prorate (with Buyer
being deemed to be the owner of the Property for the date of the Closing) as of
the date on which the Closing occurs, on the basis of the actual number of days
in the calendar month in which the Closing occurs, the following with respect
to the Property:
(a) Rents. All rents and other receipts actually
received for the month in which the Closing occurs shall be prorated
as of the Closing. Seller shall retain title to all rents and other
receipts attributable to the period of time prior to the Closing Date.
Buyer shall use reasonable efforts after the Closing to collect
delinquent rents for the period up to the Closing; provided, however,
that all collections shall be applied first to periods commencing
after the Closing, and then to periods prior to the Closing.
Percentage Rents (if any) for 1996 shall remain the property of
Seller, and Percentage Rents (if any) for 1997 shall be prorated by
dividing the total Percentage Rents received by 365, with Seller
receiving that per diem amount multiplied by the number of days in
1997 prior to the Closing Date, and Seller's share shall be delivered
to Seller by Buyer within five (5) business days after receipt thereof
by Buyer. All security deposits collected under the Leases shall be
transferred to and assumed by Buyer.
(b) Pass-Through Charges. Seller represents to Buyer
that Seller currently collects from each tenant under the Leases the
following categories of expenses (each category billed separately to
each tenant), as more fully described in each Lease (collectively, the
"PASS-THROUGH EXPENSES"):
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(i) Real estate taxes, recurring assessments,
improvement lien assessments, and personal property taxes on
all or portions of the Property (the "TAXES");
(ii) General public liability, casualty, and
certain other types of insurance (the "INSURANCE"); and
(iii) Utilities (including gas, water, sewer,
electricity, telephone and other utilities supplied to the
Property), expenses related to Contracts, and certain other
expenses incurred in connection with the management,
maintenance and repair of the Property (the "CAM EXPENSES").
Seller shall remain liable for all Pass-Through Expenses for
1996, and shall reconcile the actual expenses incurred for Pass-
Through Expenses for 1996 with the amounts received from each tenant.
If Seller has collected from tenants more than the actual Pass-
Through Expenses for 1996, then Seller shall deliver such excess to
Buyer at Closing (or as soon thereafter as those expenses are
reconciled). If the actual Pass-Through Expenses for 1996 are greater
than the amounts collected by Seller, then Seller shall retain the
right to recover the deficiency from the tenants of the Property in
accordance with the terms of the respective leases, and Buyer shall
reasonably cooperate with Seller in that regard (but shall not be
required to incur any expense in those efforts).
Each category of Pass-Through Expense for 1997 shall be
prorated in the manner set forth below. Except in regard to Taxes
(which is addressed in subsection (c) below), Seller shall remain
liable for all Pass-Through Expenses for 1997 attributable to periods
of time prior to the Closing Date. If, for any category of
Pass-Through Expenses, Seller has collected from tenants more than the
actual Pass-Through Expenses incurred for or attributable to the
period of time in 1997 up to (but not including) the Closing Date,
then Seller shall deliver such excess to Buyer at Closing. If, for
any category, the actual Pass-Through Expenses for 1997 up to (but not
including) the Closing Date are greater than the amounts collected by
Seller, then (subject to the requirements of the last sentence of
subsection (c) below) Seller shall retain the right to recover the
deficiency from the tenants of the Property in accordance with the
terms of the respective leases, and Buyer shall reasonably cooperate
with Seller in that regard (but shall not be required to incur any
expense in those efforts).
(c) Taxes. Real estate taxes, recurring assessments,
improvement lien assessments, and personal property Taxes, if any, on
all or any portion of the Property, based on the regular and
supplemental tax bills for the calendar year in which the Closing
occurs (or, if such tax xxxx has not been issued as of the date of
Closing the regular and supplemental tax xxxx for the calendar year
preceding that in which the Closing occurs) shall be prorated as of
the Closing. If any supplemental real estate taxes are levied for any
period preceding the Closing, the parties will, immediately after the
Closing or the issuance of the supplemental real estate tax xxxx
(whichever last occurs), prorate between themselves, in cash, without
interest and to the date of the Closing Date, the supplemental real
estate taxes
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shown by such xxxx. The Taxes having been prorated, the Buyer shall
assume the obligation to pay all Taxes for 1997. Seller may retain
from any amounts collected from tenants the portion of taxes for which
it is responsible, and shall deliver to Buyer at Closing any excess
amounts. If the amounts collected by Seller are insufficient to pay
for Seller's share of taxes for 1997, then (subject to the last
sentence of this subsection) Seller shall retain the right to recover
the deficiency from the tenants of the Property in accordance with the
terms of the respective leases, and Buyer shall reasonably cooperate
with Seller in that regard (but shall not be required to incur any
expense in those efforts). Before Seller may initiate collection
action against a tenant on any deficiency to which it is entitled
under subsections (b) or (c) of this Section 5.5, Seller shall give
Buyer written notice of the deficiency and shall give Buyer a
reasonable period of time (not less than 90 days, unless that delay
would unreasonably jeopardize collection) to collect the deficiency
from the tenant, and Buyer shall use reasonable efforts in collecting
the deficiency.
(d) Utilities. All utilities, including gas, water,
sewer, electricity, telephone and other utilities supplied to the
Property shall be read as of the Closing Date. Seller shall pay,
prior to the Closing Date, all such amounts for which a xxxx has been
received or for which payment is otherwise due prior to the Closing
Date, and Buyer shall be credited, and Seller shall be debited, with
an amount equal to all utility charges for the period from the date
such bills were issued or such payments were due until the Closing
Date. Seller shall be credited for the amount of any deposits made by
Seller for utility services which have not been refunded to Seller and
which are assigned to Buyer on or prior to the Closing Date.
(e) Service Contracts. Amounts payable under Approved
Contracts shall be prorated on an accrual basis. Seller shall pay,
prior to the Closing Date, all such amounts for which a xxxx has been
received or for which payment is otherwise due prior to the Closing
Date, and Buyer shall be credited, and Seller shall be debited, with
an amount equal to all amounts accrued under the Approved Contracts
from the date such bills were issued or such payments were due until
the Closing Date. Seller shall deliver to Escrow, for the benefit of
Buyer, evidence of the cancellation or termination of all Contracts
other than Approved Contracts, and Seller shall be responsible for all
such cancellation costs.
(f) Other Items. All other proratable items, including
without limitation licenses and permits and other income from, and
expenses associated with, the Property shall be prorated between Buyer
and Seller as of the Closing.
Buyer and Seller's obligation to prorate shall survive the Closing for
a period of two (2) years (unless within such time Buyer or Seller makes a
claim against the other party to this Agreement with respect to such obligation
to prorate, in which case such obligation shall survive without limitation),
and Buyer and Seller shall use good faith efforts to conclude prorations with
respect to percentage Rent and common area maintenance charges as soon as
practicable after the determination of the amounts thereof.
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5.7 Costs and Expenses. Seller and Buyer shall each bear and pay
one-half (1/2) of the fees of Escrow Holder. Seller shall pay for the cost of
the Survey, the cost of a standard coverage title policy in the full amount of
the Purchase Price insuring fee simple title to the Land and Improvements in
Buyer (the "STANDARD COVERAGE TITLE POLICY"), all legal fees and costs incurred
by Seller, and other fees and charges which are typically borne by sellers in
Richardson, Texas. Buyer shall pay for the amount of the difference in cost
between the Standard Coverage Title Policy and the Extended Coverage Title
Policy, the cost of the Endorsements, its out-of-pocket expenses, all due
diligence, all legal fees and costs incurred by Buyer in connection herewith,
and other fees and charges which are typically borne by buyers in Richardson,
Texas. The cost of any recordation fees and documentary or other transfer
taxes applicable with respect to the sale of the Real Property, all sales tax,
if any, applicable with respect to the sale of the Personal Property and/or the
Intangible Property, and any other fees and charges shall be borne by Seller
and Buyer as such fees and charges are typically borne by buyers and sellers in
Richardson, Texas.
5.8 Closing and Recordation. Provided that Escrow Holder has
received all of the items required to be delivered pursuant to this Article V
(or a waiver from the party for whose benefit such item is being delivered) and
that it has not received prior written notice from Buyer that Buyer has elected
to terminate its rights and obligations hereunder pursuant to Article IV,
Article VIII and/or Section 5.9, and provided that Buyer has received either
the Extended Coverage Title Policy or the irrevocable commitment of Title
Company to provide it with the Extended Coverage Title Policy immediately after
recordation of the Deed, Escrow Holder is authorized and instructed (a) with
respect to the Property, to cause the Title Company to record the documents
delivered to the Escrow Holder in accordance with recording instructions set
forth in a letter to be delivered to Escrow Holder and Title Company by Buyer
(or if no such letter is received prior to the Closing, in accordance with
customary practice), (b) to deliver those other documents and instruments
delivered into Escrow to the party for whose benefit such documents or
instruments were made and (c) to deliver the Purchase Price, as adjusted
pursuant to Section 5.6 hereof upon receiving confirmation of recording of the
Deed.
5.9 Termination of Agreement.
(a) Failure of Buyer's Conditions. If any one or more of
the conditions to Buyer's obligations, as set forth in Article IV.A,
Section 5.3 or elsewhere in this Agreement, is not either fully
performed, satisfied or waived in writing (or deemed waived as
provided herein) on or before the Closing Date or such earlier date as
provided elsewhere herein, then Buyer may elect, by written notice as
provided in Section 10.10 hereof, to terminate this Agreement, in
which case neither party shall have any further obligation to the
other, except for those which survive the termination of this
Agreement. Nothing in this paragraph shall be construed to limit any
of Buyer's rights or remedies at law or equity in the event of a
default by Seller.
(b) Failure of Seller's Conditions. If any one or more
of the conditions to Seller's obligations, as set forth in Article
IV.B, Section 5.4 or elsewhere in this
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Agreement, is not either fully performed, satisfied or waived in
writing (or deemed waived as provided herein) on or before the Closing
Date or such earlier date as provided elsewhere herein, then Seller
may elect, by written notice as provided in Section 10.10 hereof, to
terminate this Agreement and neither party shall have any further
obligation to the other, except for those which survive the
termination of this Agreement.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
As an inducement to Buyer to enter into this Agreement and the
consummation of the transaction contemplated hereby, Seller hereby represents
and warrants to and agrees with Buyer both as of the date hereof and again as
of the Closing Date, and as of all dates and times in between (except as
specifically provided to the contrary herein), as set forth below. As used
herein and elsewhere in this Agreement, the term "Seller's actual knowledge"
shall mean the actual knowledge of each of Xxxxxxx X. Xxxxxx and Bedford
Xxxxxxx, without any duty of investigation of any kind. Seller hereby
represents and warrants that the foregoing persons are the persons employed by
Seller or Seller's manager with executive, managerial or daily supervisory
responsibility with respect to the Property.
6.1 Authority. Seller is duly organized and validly existing
under the laws of the jurisdiction of its organization, is duly qualified to
conduct business and own real property in the State of Texas, and has all
requisite power to own the Property and to carry on its business related to the
Property as presently conducted. The execution, delivery and performance of
this Agreement and all other agreements contemplated hereby has been or will be
duly and validly authorized by all necessary action of Seller and the Agreement
and all other agreements contemplated thereby are and will be valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights and general principles of
equity.
6.2 Title. Seller holds fee simple title to the Property, and to
Seller's actual knowledge, such fee simple title is free and clear of all
liens, encumbrances, security interests, charges, adverse claims and other
exceptions to title, except for the Leases, Contracts, matters of record,
matters disclosed by the Survey and the matters to be disclosed in the Title
Report.
6.3 The Leases. A list of the current Leases is set forth in the
rent roll attached hereto as Schedule H (the "RENT ROLL"). The Rent Roll is
true, complete and correct in all respects and except for the Leases set forth
in the Rent Roll, the Contracts described in Exhibit "I" attached to this
Agreement, matters of record, matters disclosed by the Survey and the matters
to be disclosed in the Title Report, there are no other leases, licenses or
other agreements affecting the occupancy of the Property. With respect to each
Lease: (i) to Seller's actual knowledge, the Lease is in full force and effect,
and constitutes the valid and binding legal obligation of Seller and the
respective tenant, enforceable against each of them in accordance with its
terms; (ii) except as indicated on the Rent Roll, there are no understandings,
oral or written, between
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the parties to the Lease which in any manner vary the obligations or rights of
either party; (iii) except as indicated on the Rent Roll, there is no default
by Seller under the Lease, and to Seller's actual knowledge, by the tenant
under the Lease; and (iv) no rent or additional rent under the Lease has been
paid for more than thirty (30) days in advance of its due date.
6.4 No Litigation or Adverse Events. Other than the bankruptcy
proceedings of Color Tile Supermart, Inc., Seller has received no written
notice of, and to Seller's actual knowledge, there are no, pending or
threatened investigations, actions, suits, proceedings or claims against or
affecting Seller, the Property, or any tenant (as it relates to the Property)
at law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, agency, or instrumentality,
domestic or foreign. Seller has received no written notice of, and to Seller's
actual knowledge, there are no, pending or threatened investigations, actions,
suits, proceedings or claims against or affecting any adjacent property at law
or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, agency, or instrumentality,
domestic or foreign which, if adversely decided, would have a materially
negative impact on the value of the Property.
6.5 Compliance with Laws. Seller has not received any written
notice that Seller is not in compliance in all material respects with all
applicable laws, ordinances, rules and regulations (including without
limitation those relating to zoning and the Americans With Disabilities Act)
applicable to the ownership or operation of the Property. Seller has not
received from any insurance company or Board of Fire Underwriters any written
notice, which remains uncured, of any defect or inadequacy in connection with
the Property or its operation.
6.6 No Defaults in Other Agreements. To Seller's actual
knowledge, neither Seller nor any other party is in material default under any
Contract affecting the Property, and no event exists which, with the passage of
time or the giving of notice or both, will become a material default thereunder
on the part of the Seller or any other party thereto. To Seller's actual
knowledge, Seller is in compliance in all material respects with the terms and
provisions of the covenants, conditions, restrictions, rights-of-way or
easements affecting the Property.
6.7 Eminent Domain. To Seller's actual knowledge, there is no
existing or proposed or threatened eminent domain or similar proceeding, or
private purchase in lieu of such a proceeding which would affect the Property
in any material way.
6.8 Environment. (i) Seller has no actual knowledge of, and has
received no written notice that, Seller has engaged in any operations or
activities upon, or any use or occupancy of the Property, or any portion
thereof, for the purpose of or in any way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal of any Hazardous Materials (whether legal or illegal, accidental or
intentional) on, under, in or about the Property, or transported any Hazardous
Materials to, from or across the Property, except in all cases in material
compliance with Environmental Requirements and only in the course of legitimate
business operations at the Property (which shall not include any business
primarily or substantially devoted to the handling, manufacture, treatment,
storage, use, generation, release, discharge, refining, dumping or disposal of
Hazardous Materials); (ii) to Seller's actual knowledge, no tenant, occupant or
user of the Property, nor any other person, has engaged in or
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permitted any operations or activities upon, or any use or occupancy of the
Property, or any portion thereof, for the purpose of or in any material way
involving the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping or disposal of any Hazardous Materials
(whether legal or illegal, accidental or intentional) on, under, in or about
the Property, or transported any Hazardous Materials to, from or across the
Property, except in all cases in material compliance with Environmental
Requirements and only in the course of legitimate business operations at the
Property (which shall not include any business primarily or substantially
devoted to the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping or disposal of Hazardous Materials);
(iii) to Seller's actual knowledge, no Hazardous Materials are presently
constructed, deposited, stored, or otherwise located on, under, in or about the
Property except in all cases in material compliance with Environmental
Requirements and only in the course of legitimate business operations at the
Property (which shall not include any business primarily or substantially
devoted to the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping or disposal of Hazardous Materials); (iv)
to Seller's actual knowledge, no Hazardous Materials have migrated from the
Property upon or beneath other properties; and (v) to Seller's actual
knowledge, no Hazardous Materials have migrated or threaten to migrate from
other properties upon, about or beneath the Property.
As used herein:
"ENVIRONMENTAL REQUIREMENTS" shall mean all applicable present
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, of
all governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (i) all requirements, including
but not limited to those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes whether
solid, liquid or gaseous in nature, into the air, surface water, ground water
or land, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances, materials, or
wastes, whether solid, liquid or gaseous in nature; and (ii) all requirements
pertaining to the protection of the health and safety of employees or the
public.
"HAZARDOUS MATERIALS" shall mean (i) any flammable, explosive or
radioactive materials, hazardous wastes, toxic substances or related materials
including, without limitation, substances defined as "hazardous substances,"
"hazardous materials," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C.,
Section 2601 et seq.; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 et seq.; and in the regulations adopted and publications
promulgated pursuant to said laws; (ii) those substances listed in the United
States Department of Transportation Table (49 C.F.R. 172.101 and
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amendments thereto) or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 C.F.R. Part 302 and amendments thereto);
(iii) those substances defined as "hazardous wastes," "hazardous substances" or
"toxic substances" in any similar federal, state or local laws or in the
regulations adopted and publications promulgated pursuant to any of the
foregoing laws or which otherwise are regulated by any governmental authority,
agency, department, commission, board or instrumentality of the United States
of America, the State of Kansas or any political subdivision thereof, (iv) any
pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials,
or substances within the meaning of any other applicable federal, state, or
local law, regulation, ordinance, or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended; (v) petroleum or any by-products thereof; (vi) any
radioactive material, including any source, special nuclear or by-product
material as defined at 42 U.S.C. Sections 2011 et seq., as amended, and in the
regulations adopted and publications promulgated pursuant to said law; (vii)
asbestos in any form or condition; and (viii) polychlorinated biphenyls.
6.9 Mechanic's Liens. All bills and claims for labor performed
and materials furnished to or for the benefit of the Property currently due and
contracted for by Seller have been paid in full or will be paid prior to
Closing in the ordinary course of business, and at the Closing there will not
be, and to Seller's actual knowledge there are not presently, any mechanic's or
materialmen's liens (whether or not perfected) on or affecting the Property as
a result of labor performed or materials furnished and contracted for by the
Seller.
6.10 Operating Statements. To Seller's actual knowledge the
financial statements delivered by Seller to Buyer fairly present the profit or
loss from the management and operation of the Property for the periods covered
thereby and, in all material respects, accurately reflect all rents and other
gross receipts, and all amounts paid by Seller for electricity, water, sewer,
other utility services, insurance, fuel, maintenance and repairs (whether
capitalized or expensed), real estate taxes, payroll and payroll taxes and all
other operating and other expenses associated with the Property.
6.11 No Leases of Property or Assets. Except as may be disclosed in
the Contracts delivered to the Buyer, no material portion of the Personal
Property or fixtures with respect to the Property (other than fixtures owned or
installed by tenants) is leased by the Seller as lessee.
The representations and warranties set forth in this Article VI shall
survive the execution and delivery of this Agreement, the delivery of the Deed
and transfer of title to the Property for a period of eighteen (18) months from
the Closing Date (unless within such time Buyer makes a specific written claim
against Seller with respect to such representation or warranty, in which case
such representation or warranty, as to the specific claim made, shall survive
without limitation).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
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7.1 Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Seller as follows: Buyer is a corporation duly
organized under the laws of the State of Maryland; subject to receipt of the
Buyer Approval, this Agreement and all documents executed by Buyer which are to
be delivered to Seller at the Closing are and as of the Closing Date will be
duly authorized, executed and delivered by Buyer, and are and as of the Closing
Date will be legal, valid and binding obligations of Buyer, and do not and as
of the Closing Date will not violate any provisions of any agreement or
judicial order to which Buyer is a party or to which it is subject.
ARTICLE VIII
POSSESSION, DESTRUCTION AND CONDEMNATION
8.1 Possession. Possession of the Property shall be delivered to
Buyer on the Closing Date, subject to the Permitted Exceptions and the Leases
described on the Rent Roll or otherwise approved by Seller. Without limiting
any other provisions of this Agreement, Seller shall afford authorized
representatives of Buyer reasonable access to the Property for the purposes of
determining Seller's compliance herewith (provided that Seller or Seller's
agent shall be allowed to accompany Buyer in any visit to the Property Buyer
may make for the purposes of determining such compliance); however, in no event
shall such right give rise to any obligation of Buyer to determine compliance
or noncompliance.
8.2 Loss, Destruction and Condemnation.
(a) Definition of Material Damage. For the purposes of
this Section 8.2, damage to the Property is material if (i) the actual
cost of repairing or replacing the damaged portions of the
Improvements on the Property exceeds $100,000.00, or (ii) if it would
take longer than sixty (60) days to perform such repair or replacement
using reasonably diligent efforts, or (iii) if any lessee has the
right to xxxxx any rent under its lease as a result of such damage and
there is not full rental interruption coverage with respect thereto
available to Buyer through and after the Closing Date until the date
that is sixty (60) days beyond the estimated date of reconstruction,
or (iv) if any lessee has a right to terminate its lease as a result
of such damage.
(b) Effect of Non-Material Damage to Improvements. If
prior to the Closing the Improvements on the Property are damaged by
casualty and such damage is not material, (i) this Agreement may not
be terminated by reason of such casualty (provided that this does not
waive Buyer's other termination rights under this Agreement) and (ii)
Seller will, at Buyer's option, either (a) cause the damaged portion
of the Improvements to be repaired at Seller's sole cost and expense
within sixty (60) days after the date of such damage or (b) reduce the
Purchase Price by an amount equal to the actual, reasonable and
necessary cost of repairing or replacing the damaged portions of the
Improvements. Seller will notify Buyer within five (5) days (but in
any event prior to the Closing Date) of Seller's receipt of knowledge
of any casualty which occurs after the date of this Agreement and on
or prior to the Closing Date.
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(c) Effect of Material Damage to Improvements. If prior
to the Closing the Improvements are damaged by casualty and such
damage is material, Seller shall notify Buyer in writing of such
casualty as soon as practicable. Within ten (10) days after the
occurrence of such casualty, Seller will as soon as is practicable,
commence restoration of the damaged Improvements, and shall complete
such restoration in compliance with all laws and the representations
and warranties set forth herein and shall restore such Improvements
their condition prior to the occurrence of the casualty promptly (but
in no event more than sixty (60) days thereafter), and the Closing
Date shall be extended (but in no event by more than sixty (60) days)
until such damaged Improvements are complete; provided, however, if
Seller's mortgagee does not release portions of the insurance proceeds
attributable to such casualty to Seller, then Seller may terminate
this Agreement by written notice to Buyer, in which event the Xxxxxxx
Money Deposit shall be returned to Buyer and neither party shall have
any further obligation to the other, except those that expressly
survive the termination of this Agreement. If Seller does not
commence or complete such restoration within such time period, then
Buyer may elect pursuant to a writing delivered to Seller and Escrow
Holder to (i) continue this Agreement, provided, however, that Seller
shall assign to Buyer at the Closing any insurance proceeds to which
Seller is entitled with respect to such damage (in which event the
Purchase Price shall be reduced by the amount of any deductible with
respect thereto); or (ii) terminate this Agreement, in which case
Buyer shall have no further rights and obligations to the Seller under
this Agreement (but Buyer shall retain its rights and remedies against
Seller) and Escrow Holder shall immediately return the Xxxxxxx Money
Deposit (with interest thereon) to Buyer. Buyer's failure to have
elected any of these options within the time allotted therefor shall
be deemed to be an election of option (ii).
(d) Definition of Material Taking. For the purposes of
this Section 8.2, a taking or threatened taking by eminent domain or
similar proceedings shall be deemed material if (i) the value of that
portion of the Property to be so taken exceeds $100,000.00, (ii) the
portion of the Property taken includes any material access to the
Property or any material portion of the parking area (and a material
portion includes, without limitation, any taking which would cause the
parking ratio to fall below the minimum ratio required by applicable
law or any Lease); (iii) Buyer determines that the Property so
affected is materially and adversely affected by such taking or
threatened taking, (iv) any lessee has the right to xxxxx any rent
under its lease as a result of such taking or threatened taking, or
(v) any lessee has the right to terminate its lease as a result of
such taking or threatened taking.
(e) Effect of Non-Material Taking. If prior to the
Closing there is a taking or threatened taking of a portion of the
Property which is not material, (i) this Agreement may not be
terminated and (ii) Seller will assign to Buyer at the Closing all of
Seller's rights in and to any condemnation award with respect to such
non-material taking, and there will be no reduction in the Purchase
Price. Seller will deliver written notice to Escrow Holder and Buyer
within one (1) day after Seller receives notice of or otherwise
becomes aware of any taking or threatened taking affecting the
Property.
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(f) Effect of Material Taking. If prior to the Closing
there is a taking or threatened taking of a material portion of the
Property or all of it, Seller shall notify Buyer in writing of such
taking or threatened taking, and within ten (10) days after Buyer's
receipt of such notice, Seller and Buyer shall endeavor to agree upon
whether the Property shall be purchased by Buyer, and any reduction in
the Purchase Price, and any assignment of any condemnation award with
respect to such taking. If within such ten (10) day period Buyer and
Seller have not reached a mutually acceptable agreement as to those
matters, Buyer within ten (10) days thereafter may elect in writing to
(i) continue this Agreement subject to the taking or threatened taking
with an assignment of all of Seller's rights to condemnation awards,
severance damages, payments-in-lieu thereof or the like; or (ii)
terminate this Agreement, in which case Buyer and Seller shall have no
further rights or obligations to one another under this Agreement
except for those which expressly survive the termination of this
Agreement, and Escrow Holder shall immediately return the Xxxxxxx
Money Deposit (with interest thereon) to Buyer. Buyer's failure to
have elected any of these options within the time period allotted
therefor shall be deemed to be an election of option (ii).
(g) Extension of Outside Closing Date. Upon the
occurrence of any damage to the Property, the Outside Closing Date
shall be extended to the date upon which Seller is required hereunder
to have such damage repaired, but in no event shall any such extension
extend the Outside Closing Date to a date which is more than sixty
(60) days after the date of such damage to the Property.
ARTICLE IX
MAINTENANCE AND OPERATION OF THE PROPERTY;
COVENANTS
9.1 Maintenance. In addition to Seller's other obligations
hereunder, Seller shall, upon and after the date of this Agreement and to and
including the Closing Date, at Seller's sole cost and expense, maintain the
Property in the ordinary course of business consistent with past practice, pay
all taxes, assessments, fines, penalties, charges and other operating expenses,
and shall make all repairs, maintenance and replacements of the Improvements
and any Personal Property and otherwise operate the Property in its ordinary
and customary manner, and otherwise in the same manner as before the making of
this Agreement, the same as though Seller were retaining the Property. Seller
shall not make any material alterations to the Property without first receiving
Buyer's prior written consent thereto except as required by the Leases or
applicable law.
9.2 Leases and Other Agreements. Seller shall not, on or after
the date of this Agreement and on or prior to the Closing Date, enter into any
Lease pertaining to the Property except pursuant to the terms and conditions
set forth in this Section 9.2. At any time prior to the Closing Date, in the
event that Seller intends to enter into a lease with respect to any portion of
the Property, Seller shall deliver to Buyer a complete copy of the proposed
lease, financial information as to the proposed lessee (with credit reports),
and copies of all brokerage agreements (or a detailed list of all brokerage
obligations) with respect to such lease. Buyer shall review and
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approve or disapprove of such lease within ten (10) days after the receipt of
all of the foregoing materials. If all such materials are delivered to Buyer
on or prior to ten (10) days prior to conclusion of the Review Period, and if
(a) such lease (and any brokerage commissions with respect thereto) was
negotiated by Seller in good faith and is on market terms, (b) the proposed
lessee is creditworthy as determined by Buyer in its reasonable judgment, (c)
the proposed use of the premises under such Lease is compatible with the other
uses in the Property and is not inconsistent with the general leasing policies
of Buyer, as determined by Buyer in its reasonable judgment, and (d) the terms
and conditions of such Lease and any brokerage commissions payable with respect
thereto are otherwise acceptable to Buyer in its reasonable discretion, then
Buyer shall approve such lease and if and when the Closing occurs, Buyer shall
assume all obligations under such lease to pay for or construct tenant
improvements and shall assume and pay, as and when due, all brokerage
commissions with respect to such lease which commissions were disclosed to and
approved by Buyer. In the event that Buyer does not affirmatively approve in
writing such lease within such ten (10) day period, then Buyer shall be deemed
to have disapproved such lease and as long as this Agreement remains effective
Seller shall not enter into such lease. Seller's sole remedy with respect to
any such disapproval shall be to terminate this Agreement, by written notice to
Buyer not later than five (5) days later the expiration of such ten (10) day
period, in which case the Xxxxxxx Money Deposit, with all interest thereon,
shall be refunded to Buyer and this Agreement, and each party's obligations
hereunder, shall terminate. Notwithstanding the foregoing, after the
conclusion of the Review Period, in no event shall Seller enter into any lease
with respect to the Property without Buyer's prior written consent, which will
not be unreasonably withheld or delayed. After the date hereof, without
Buyer's prior written consent (which will not be unreasonably withheld), in no
event shall Seller enter into any agreement or contract with respect to the
Property (other than a lease, which shall be governed by the foregoing
provisions) which is not terminable on thirty (30) days' prior notice (without
premium or penalty).
9.3 Encumbrances. Seller shall not, in between the date of this
Agreement and the Closing Date, mortgage, encumber or suffer to be encumbered
all or any portion of the Property, which encumbrances would survive the
Closing Date, without the prior written consent of Buyer.
9.4 Consents and Notices. Seller and Buyer shall cooperate with
each other and exercise commercially reasonable efforts to obtain as of the
Closing Date, all consents from, and provide all notices to, any third party
and any governmental or regulatory authority which are required pursuant to any
Contract or any applicable laws as a condition to or in connection with the
execution, delivery or performance of this Agreement or other documents and
instruments contemplated thereby.
9.5 Audit Cooperation. Until the date that is one (1) year after
the Closing Date, Seller hereby agrees to cooperate with Buyer in producing
Buyer's audited financial statements for the Property for such periods as may
be requested by Buyer. Such cooperation shall include, without limitation, the
execution and delivery by Seller to Buyer's auditors of such confirmations and
letters as such auditors may reasonably require.
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9.6 Access to Information. Seller shall provide to Buyer access
to Buyer's records and information regarding the Property (other than
attorney-client privileged information and information relating to other offers
to purchase the Property or financing of the Property), which Buyer may review
and make copies of at Buyer's expense. Buyer may contact Seller's insurance
agent and tenants of the Property directly to obtain information regarding the
Property.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and personally delivered or sent by United
States mail, registered or certified mail, postage prepaid, return receipt
requested, or by electronic facsimile transmission, or sent by Federal Express
or similar nationally recognized overnight courier service, and addressed as
follows, and shall be deemed to have been given upon the date of delivery (or
refusal to accept delivery) at the address specified below as indicated on the
return receipt or air xxxx:
If to Seller: JaGee Properties, Inc.
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, President
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxxx, P.C.
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
If to Buyer: The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
with a copy to: The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxx
Fax No.: (000) 000-0000
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with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
If to Escrow
Holder: Safeco Land Title Company
000 Xxxx Xxxxxx
Xxxxx X-00
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: (000) 000-0000
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid.
10.2 Brokers and Finders. Buyer and Seller each hereby represents
and warrants that no broker was involved in this Agreement or the transactions
contemplated hereby except for Ranchview Investments, Inc. and Xxxxxxx &
Wakefield of Texas, Inc., whose commissions are to be paid by Seller if and
only if the Closing occurs and Seller receives the Purchase Price. In the
event of a claim for a broker's fee, finder's fee, commission or other similar
compensation in connection herewith other than as set forth above, (i) Buyer,
if such claim is based upon any agreement alleged to have been made by Buyer,
hereby agrees to indemnify, defend, protect and hold Seller harmless against
any and all liability, loss, cost, damage or expense (including reasonably
attorneys' and paralegals' fees and costs) which Seller may sustain or incur by
reason of such claim and (ii) Seller, if such claim is based upon any agreement
alleged to have been made by Seller, hereby agrees to indemnify, defend,
protect and hold Buyer harmless against any and all liability, loss, cost,
damage or expense (including reasonable attorneys' and paralegals' fees and
costs) which Buyer may sustain or incur by reason of such claim. The
provisions of this Section 10.2 shall survive the Closing or earlier
termination of this Agreement.
10.3 Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns, except that neither Seller's nor Buyer's interest under this
Agreement may be assigned, encumbered or otherwise transferred whether
voluntarily, involuntarily, by operation of law or otherwise, without the prior
written consent of the other; provided, however, that Buyer may assign,
encumber or otherwise transfer Buyer's interest under this Agreement, without
the prior written consent of Seller (which will not be unreasonably withheld,
conditioned or delayed), to any subsidiary or affiliate of Buyer, provided,
however, that such assignment shall not release Buyer from its obligations
under this Agreement or any obligations of the purchaser created under any
agreements executed in connection with this Agreement. There shall be no third
party beneficiaries to this Agreement.
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10.4 Amendments. This Agreement may be amended or modified only by
a written instrument executed by the party or parties asserted to be bound
thereby.
10.5 Continuation and Survival of Indemnities, Representations,
Warranties and Post-Closing Obligations. Except as provided in the last
paragraph of Article VI of this Agreement, all indemnities, representations and
warranties by, and all of the post-closing obligations, if any, of, the
respective parties contained herein or made in writing pursuant to this
Agreement or any other instrument delivered by Seller or Buyer pursuant hereto
are intended to and shall remain true and correct and binding as of the time of
Closing and shall survive the execution and delivery of this Agreement, the
delivery of the Deed and transfer of title.
10.6 Interpretation. Whenever used herein, the term "including"
shall be deemed to be followed by the words "without limitation." Words used in
the singular number shall include the plural, and vice-versa, and any gender
shall be deemed to include each other gender. The captions and headings of the
Articles and Sections of this Agreement are for convenience of reference only,
and shall not be deemed to define or limit the provisions hereof.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
10.8 Merger of Prior Agreements. This Agreement (including the
exhibits hereto) constitutes the entire agreement between the parties with
respect to the purchase and sale of the Property specifically described herein
and supersedes all prior and contemporaneous (whether oral or written)
agreements and understandings between the parties hereto relating to the
specific subject matter hereof.
10.9 Attorneys' Fees. In the event of any action or proceeding at
law or in equity between Buyer and Seller (including an action or proceeding
between Buyer and the trustee or debtor in possession while Seller is a debtor
in a proceeding under the Bankruptcy Code (Title 11 of the United States Code)
or any successor statute to such Code) to enforce or interpret any provision of
this Agreement or to protect or establish any right or remedy of either Buyer
or Seller hereunder, the unsuccessful party to such action or proceeding shall
pay to the prevailing party all costs and expenses, including without
limitation reasonable attorneys' and paralegals' fees and expenses (including
without limitation fees, costs and expenses of experts and consultants),
incurred in such action or proceeding and in any appeal in connection therewith
by such prevailing party, together with all costs of enforcement and/or
collection of any judgment or other relief. If such prevailing party shall
recover judgment in any such action, proceeding or appeal, such costs, expenses
and attorneys' and paralegals' and others' fees shall be included in and as a
part of such judgment.
10.10 Notice of Termination. If either Buyer or Seller elects to
terminate this Agreement, it will submit to Escrow Holder and the other party
hereto a notice of termination in duplicate. If Escrow Holder receives a
notice of termination, it is instructed to mail and fax one copy to the other
such party within one (1) business day. If Escrow Holder has not received
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a written objection from the other party within five (5) business days after
mailing and faxing the copy, Escrow Holder is to (i) comply with the
instructions contained in the notice of termination, (ii) pay cancellation
charges out of any funds on deposit in this Escrow, (iii) return the Xxxxxxx
Money Deposit (and interest thereon) to Buyer, and (iv) cancel this Agreement.
10.11 Specific Performance; Damages. The parties understand and
agree that the Property is unique and for that reason, among others, Buyer will
be irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly, in the event of any breach or default in or of this
Agreement or any of the warranties, terms or provisions hereof by Seller, Buyer
shall have the right to demand and have specific performance of this Agreement.
The foregoing shall not limit or otherwise diminish the other remedies
available to Buyer at law or equity, including, without limitation, the right
to recover damages.
10.12 Relationship. It is not intended by this Agreement to, and
nothing contained in this Agreement shall, create any partnership, joint
venture, financing arrangement or other agreement between Buyer and Seller. No
term or provision of this Agreement is intended to be, or shall be, for the
benefit of any person, firm, organization or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any
right or cause of action hereunder.
10.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
10.14 Time of the Essence. Time is of the essence in this Agreement
and with respect to all of its terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Seller, Buyer, and Escrow Holder have executed
this Agreement as of the date first above written.
BUYER: THE PRICE REIT, INC.
By: /s/ XXXXXX XXXXXXXX
--------------------------------------
Printed Name: XXXXXX XXXXXXXX
----------------------------
Title: SR. EXEC. V.P.
-----------------------------------
SELLER: JAGEE PROPERTIES, INC.
By: /s/ XXXXXXX XXXXXX
--------------------------------------
Xxxxxxx Xxxxxx, President
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CONSENT OF ESCROW COMPANY
The undersigned Escrow Company agrees to (i) accept the foregoing
Agreement, (ii) be Escrow Holder under the Agreement, and (iii) be bound by the
Agreement in the performance of its duties as Escrow Holder; however, the
undersigned will have no obligations, liability or responsibility under (a)
this consent or otherwise, unless and until the Agreement, fully signed by the
parties, has been delivered to the undersigned, or (b) any amendment to the
Agreement materially affecting undersigned's obligations thereunder unless and
until the amendment is accepted by the undersigned in writing.
Dated: ___________________
SAFECO LAND TITLE COMPANY
By: _____________________________________
Escrow Officer
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SCHEDULE A
LEGAL DESCRIPTION OF THE LAND
The land described as Tract 1 below, save and except the land described as
Tract 2.
TRACT ONE
Being part of LOT 1, of K-Mart Plaza, an Addition to the City of Xxxxxxxxxx,
Xxxxxx County, Texas according to the Map thereof recorded in Volume 93244,
Page 249, of the Map records of Dallas County, Texas; and being more
particularly described by metes and bounds as follows:
Being a tract of land situated in the Xxxxxxx Xxxxxx Survey, Abstract No. 573,
Dallas County, Texas, and being in the City of Richardson, Texas, and being a
part of that tract of land conveyed to Xxxxxxxxx Hand, Xxxxx and Xxxxxxxx by
deed dated May 6, 1968, said tract being more particularly described as follows:
BEGINNING at a point in the North line of Xxxxxxxx Road (140 ft. R.O.W.) said
point being North 89 degrees 38 minutes West a distance of 879.10 feet from the
Westline of the Xxxx Road (60 ft. R.O.W.), said point also being the Southwest
corner of K-Mart Plaza, an Addition to the City of Richardson, Texas;
THENCE North 0 degrees 36 minutes East a distance of 505.60 feet to an iron rod
for a corner;
THENCE in a Northeasterly direction with a circular curve to the left having a
central angle of 18 degrees 46 minutes 35 seconds and a radius of 1,255.87
feet, a distance of 411.56 feet to a point for a corner;
THENCE South 89 degrees 38 minutes East a distance of 502.3 feet to an iron rod
for a corner;
THENCE South 0 degrees 36 minutes West a distance of 515.0 feet along the West
line of Xxxx Road to an iron rod for a corner;
THENCE North 89 degrees 38 minutes West a distance of 164.74 feet to an iron
rod for a corner;
THENCE South 0 degrees 36 minutes West a distance of 150.0 feet to an iron rod
for a corner;
THENCE North 89 degrees 38 minutes West a distance of 714.36 feet along the
North line of Xxxxxxxx Road to the POINT OF BEGINNING and containing 12.058
acres of land, more or less.
40
TRACT TWO
BEING a parcel of land in the Xxxxxxx Xxxxxx Survey, Abs. No. 573 and being a
part of Xxx 0, X-XXXX XXXXX, an addition to the City of Richardson, Texas, as
shown by plat recorded in Volume 71238, Page 2505, and later in Volume 93244,
Page 0249, Deed Records of Dallas County, Texas, and being more particularly
described as follows:
COMMENCING at a 5/8 inch iron rod found in the north line of Xxxxxxxx Road (a
140 foot right-of-way) said point being the most southerly southeast corner of
said Xxx 0, X-XXXX XXXXX and also being the southwest corner of Xxx 0, X-XXXX
XXXXX as recorded in Volume 71238, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx;
THENCE North 00 deg. 50 min. 12 sec. East a distance of 150.00 feet to a 1/2
inch iron rod found for the southeasterly inside corner, of said Xxx 0, X-XXXX
XXXXX, and also being the northwest corner of said Xxx 0, X-XXXX XXXXX;
THENCE South 89 deg. 23 min. 48 sec. East along the North lineof said Xxx 0,
X-Xxxx Xxxxx, a distance of 10.18' to an iron rod set for the most southerly,
southwest corner hereof and being the POINT OF BEGINNING;
THENCE North 00 deg. 36 min. 12 sec. a distance of 34.24 feet to a PK nail set
for an inside corner;
THENCE North 83 deg. 23 min. 48 sec. West a distance of 27.79 feet to a PK nail
set for the most southerly southwest corner hereof;
THENCE North 00 deg. 36 min. 12 sec. East a distance of 60.70 feet to an "X"
out set for the northwest corner hereof;
THENCE South 89 deg. 23 min. 48 sec. East a distance of 182.80 feet to an "X"
out for the northeast corner hereof and being in the new dedicated right-of-way
line of Alamo Road (a variable width right-of-way) as shown in the plat recorded
in Volume 71238, Page 2505;
THENCE South 00 deg. 52 min. 13 sec. West along the west line of Alamo Road a
distance of 94.94 feet to a P.K. nail found for the southwest corner hereof, and
also being the northeast corner of said Xxx 0 X-XXXX XXXXX;
THENCE North 89 deg. 23 min. 48 sec. West a distance of 154.57 feet to the
POINT OF BEGINNING and containing 16,383 square feet or 0.3761 acres of land.
41
SCHEDULE B
TEXAS SPECIAL WARRANTY DEED
FORM SUBJECT TO COMMENTS FROM LOCAL COUNSEL
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
================================================================================
TEXAS SPECIAL WARRANTY DEED
THIS Special Warranty Deed (this "DEED") is made this ____ day of
_____________, 1997, by JAGEE PROPERTIES, INC., a Kansas corporation authorized
to do business in the State of Texas under the name "JaGee Real Properties,
Inc." ("Grantor") in favor of THE PRICE REIT, INC., a Maryland corporation
("Grantee"). Mailing address of Grantee is 000 Xxxxx Xxxxxxx Avenue, Fourth
Floor, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH, that Grantor, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration to Grantor duly paid, the
receipt and sufficiency of which are hereby acknowledged, does by these
presents GRANT, BARGAIN, SELL and CONVEY unto Grantee and Grantee's successors
and assigns, the following described property (the "Property"):
(A) That certain real property described in Exhibit A
hereto (the "LAND"); and
(B) All improvements and fixtures owned by Seller and
located or to be located on the Land, including, without limitation, all
buildings and structures presently owned by Seller and located on the Land, all
apparatus, equipment and appliances owned by Seller and presently located on
the Land and used in connection with the operation or occupancy thereof, such
as heating and air conditioning systems and facilities used to provide any
utility services, parking services, refrigeration, ventilation, garbage
disposal, recreation or other services thereto, and Seller's interest in all
landscaping and leasehold improvements of tenants, if any, which become the
property of the owner of the Land (the "IMPROVEMENTS");
SUBJECT TO only such matters as may be set forth in any title
insurance policy received by Buyer concurrently herewith (the "PERMITTED
EXCEPTIONS"). Taxes having been prorated, Grantee assumes the obligation to
pay all ad valorem taxes and assessments for 1997.
TO HAVE AND TO HOLD the Property with all and singular the tenements,
hereditaments and appurtenances thereto belonging or in any wise appertaining,
unto Grantee and
42
Grantee's successors and assigns, forever, Grantor hereby covenanting that the
Property is free and clear from any encumbrance done or suffered by Grantor
except as set forth above, and that Grantor will warrant and defend title to
the Property unto Grantee and Grantee's successors and assigns forever against
the claims and demands of persons claiming or to claim the same by, through or
under Grantor, but not otherwise, subject to the Permitted Exceptions.
For the same consideration, Grantor grants, bargains, sells and
conveys to Grantee, without any warranty of title, either express or implied,
all of Seller's interest in all rights, privileges and easements appurtenant to
and for the benefit of the Land, including, without limitation, all minerals,
oil, gas and other hydrocarbon substances on and under the Land, as well as all
development rights, air rights, water, water rights and water stock relating to
the Land and any other easements, rights-of-way or appurtenances owned by
Seller and used in connection with the beneficial operation, use and enjoyment
of the Land or the Improvements or any other appurtenance, together with all
rights of Seller in and to public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx, alleys
and passageways, sidewalks, driveways, parking areas and areas adjacent thereto
or used in connection therewith (open or proposed, in front of or abutting the
Land), and all rights of Seller in any land lying in the bed of any existing or
proposed street adjacent to the Land, all strips or gores of land adjoining the
Land, and any awards made or to be made and any unpaid award for damage to the
Land by reason of any change of grade of any such street, road, avenue, alley
or passageway.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be executed
and delivered as of the date first above written.
JAGEE PROPERTIES, INC.
By:______________________________________
Xxxxxxx X. Xxxxxx, President
STATE OF TEXAS Section
Section
COUNTY OF ___________ Section
This instrument was acknowledged before me on ___________, 1997, by
Xxxxxxx X. Xxxxxx, President of JaGee Properties, Inc., a Kansas corporation
authorized to do business in Texas under the name "JaGee Real Properties,
Inc.", on behalf of said corporation.
[ SEAL ]
__________________________________________
Notary Public, State of Texas
My Commission Expires: ___________________
43
SCHEDULE C
ASSIGNMENT AND ASSUMPTION OF LEASE AND RENTS
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
================================================================================
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, JAGEE PROPERTIES, INC., a Kansas corporation authorized to
do business in the State of Texas under the name "JaGee Real Properties, Inc."
("Assignor"), hereby assigns, sets over, transfers and delegates to THE PRICE
REIT, INC., a Maryland corporation ("Assignee"), all of the landlord's right,
title, interest, claim and estate in and to all leases, occupancy agreements
and similar agreements, together with all modifications, extensions and
renewals thereof, all security therefor, and all guaranties of any of the
foregoing (collectively, the "Leases") which demise all or an part of, or
interest in, the real property more particularly described on Exhibit A
attached hereto and incorporated herein (the "Land"), together with all income,
receipts, funds and revenues of any kind whatsoever payable on or after the
date of this Assignment to Assignor under the Leases or otherwise with respect
to the Land (the "RENTS").
Assignee hereby assumes all of Assignor's obligations under or with
respect to the Leases described on Exhibit B attached hereto, which obligations
arise out of and relate to the period commencing on the date hereof. Assignee
hereby agrees to indemnify, defend, protect and hold Assignee harmless from and
against any and all loss, claim, obligation, cost or expense (including without
limitation reasonable attorneys fees) relating to or in connection with any
obligations of the landlord under the Leases, which obligations arise out of
and relate to the period commencing on or after the date hereof. Assignor
hereby agrees to indemnify, defend, protect and hold Assignee harmless from and
against any and all loss, claim, obligation, cost or expense (including without
limitation reasonable attorneys fees) relating to or in connection with any
obligations of the landlord under the Leases, which obligations arise out of or
relate to the period prior to the date hereof.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Assignment shall be recoverable separately from and in addition to any
other amount included in such judgment,
44
and such attorneys' fees obligation is intended to be severable from the other
provisions of this Assignment and to survive and not be merged into any such
judgment.
This Assignment 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, Assignor and Assignee have executed this Agreement
effective as of this ______ day of _______________, 1997.
ASSIGNOR:
JAGEE PROPERTIES, INC.
By: ______________________________
Xxxxxxx X. Xxxxxx, President
ASSIGNEE:
THE PRICE REIT, INC.
By:_______________________
Its:
45
SCHEDULE D
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, JAGEE PROPERTIES, INC., a Kansas corporation authorized to
do business in the State of Texas under the name "JaGee Real Properties, Inc."
("Seller"), hereby transfers, conveys and assigns to THE PRICE REIT, INC., a
Maryland corporation ("Buyer"), and its successors and assigns forever, any and
all tangible personal property owned by Seller and located on or about and used
in connection with the real property more particularly described on Exhibit A
attached hereto and made a part hereof (the "Property") or any improvements
thereon, including but not limited to fixtures, furnishings, furniture, tools
machinery and/or equipment, operational instructions and/or specifications,
surveys, drawings, business records and the personal property listed on any
schedule attached hereto.
If any litigation between Seller and Buyer arises out of the
obligations of the parties under this Xxxx of Sale or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys, fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Xxxx of Sale shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Xxxx of Sale and to
survive and not be merged into any such judgment.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of this ______ day of __________, 1997.
JAGEE PROPERTIES, INC.
By:______________________________________
Xxxxxxx X. Xxxxxx, President
46
SCHEDULE E
ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY,
WARRANTIES AND GUARANTEES
THIS ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND
GUARANTIES (this "Assignment") is made as of the day of , 1997, by JAGEE
PROPERTIES, INC., a Kansas corporation authorized to do business in the State
of Texas under the name "JaGee Real Properties, Inc." ("Assignor"), in favor of
THE PRICE REIT, INC., a Maryland corporation ("Assignee").
RECITALS;
Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions dated as of February _____________________, 1997 by and between
Assignor, Assignee and Safeco Land Title Company (the "Agreement"), Assignee
has this day acquired from Assignor certain interests in land, buildings and
improvements more particularly described on Exhibit A attached hereto and made
a part hereof (the "Property"). Capitalized terms not otherwise defined herein
shall have the meanings given them in the Agreement.
In consideration of the acquisition of the Property by Assignee and
other good and valuable consideration, the mutual receipt and legal sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
Assignor hereby assigns, transfers and delegates to Assignee all of
Assignor's right, title and interest in and to the following (collectively, the
"Assigned Property"): (i) any intangible personal property which relates to
and is reasonably required for the operation and functioning of the Land,
Improvements or Personal Property, including without limitation all
transferable licenses and governmental approvals and permits of any nature
relating to the Property or the Improvements or any repairs or renovations to
such Improvements, and (ii) any and all warranties, guaranties, contracts and
other rights owned by Assignor relating to the ownership, operation or
functioning of all or any part of the Property (including without limitation
all third party guarantees and warranties, express or implied, in connection
with the construction of the Improvements and any deposits given by Assignor in
connection with the installation or provision of utility services, to the
extent such deposits have not been returned to Assignor as of the date hereof).
Assignee hereby assumes all of Assignor's obligations under or with respect to
the Contracts described on Exhibit B attached hereto, which obligations arise
out of and relate to the period commencing on the date hereof.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys, fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Assignment shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Assignment and to
survive and not be merged into any such judgment.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of the date set forth below.
ASSIGNOR:
JAGEE PROPERTIES, INC.
By:____________________________________
Xxxxxxx X. Xxxxxx, President
47
SCHEDULE F
CERTIFICATION OF NON-FOREIGN STATUS
(Foreign Investment in Real Property Tax Act)
Internal Revenue Code Section 1445 provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform THE PRICE REIT, INC. ("Transferee") that withholding
of tax is not required upon the disposition of a United States real property
interest by the undersigned ("Transferor"), Transferor hereby certifies and
declares as follows:
1. Transferor's U.S. tax identification/social security number
is: ______________________________________________________________;
2. Transferor's principal office address is 0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 00000; and
3. Transferor is not a foreign person (foreign corporation,
foreign partnership, foreign trust, foreign estate or non-resident alien), as
defined in the Internal Revenue Code and Income Tax Regulations.
Transferor acknowledges that this certification may be disclosed by
Transferee to the Internal Revenue Service and that any false statement
contained in this certification may be punished by fine or imprisonment or
both.
Transferor understands that Transferee is relying on this
certification to determine whether withholding is required by Transferee
pursuant to Internal Revenue Code Section 1445.
Under penalties of perjury, the undersigned signatory declares that:
I have examined this certification, to the best of my knowledge and belief it
is true and complete, and I am duly authorized to execute this certification on
behalf of Transferor.
Dated: __________________, 1997
JAGEE PROPERTIES, INC.
By:____________________________________
Its:
48
SCHEDULE G
TENANT ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of
_____________, 1997, is executed by ________________________ ("Tenant") in
favor of THE PRICE REIT, INC. ("Buyer").
R E C I T A L S
A. Buyer and JAGEE PROPERTIES, INC. ("Landlord"), have entered
into that certain Purchase and Sale Agreement and Escrow Instructions, dated as
of February ___, 1997 (the "Purchase Agreement"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
Xxxxxxxxxx, State of Texas, more particularly described on Schedule "A"
attached to the Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease
Agreement, dated as of ________________ (together with all amendments,
modifications, supplements, guarantees and restatements thereof, the "Lease"),
for a portion of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request
of Landlord, Tenant would execute and deliver an estoppel certificate
certifying the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has
requested that Tenant execute this Certificate.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as
follows:
AGREEMENT
Section 1. Lease.
Attached hereto as Exhibit "A" is a true, correct, and complete copy
of the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements. guarantees and restatements thereof:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 2. Leased Premises.
Pursuant to the Lease, Tenant leases those certain Premises (the
"Leased Premises") consisting of approximately ______________________
(______________) rentable square feet within the Property, as more particularly
described in the Lease. In addition, pursuant to the terms of the Lease,
Tenant has the [non-exclusive] right to use [___________ parking spaces/the
49
parking area] located on the Property during the term of the Lease. [Cross-out
the preceding sentence or portions thereof if inapplicable.]
Section 3. Full Force of Lease.
The Lease is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
Section 4. Complete Agreement
The Lease constitutes the complete agreement between Landlord and
Tenant for the Leased Premises and the Property.
Section 5. Acceptance of Leased Premises.
Tenant has accepted and is currently occupying the Leased Premises.
Section 6. Lease Term.
The term of the Lease commenced on _____________________ and ends on
_______________________, subject to the following options to extend:
________________________________________________________________________________
(If none, please state "None.")
Section 7. Purchase Rights.
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:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 8. Rights of Tenant.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of
the Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
Section 9. Rent.
50
(a) The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of ________________________ Dollars ($_________) per month. Tenant has
not received and is not, presently, entitled to any abatement, refunds,
rebates, concessions or forgiveness of rent or other charges, free rent,
partial rent, or credits, offsets or reductions in rent, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and over-head expenses
is ___________ percent (______%) and is currently being paid at the rate of
____________________________________ Dollars ($__________) per month, payable
to ______________________________________________.
(d) There are no existing defenses or offsets against rent due or
to become due under the terms of the Lease, and there presently is no default
or other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 10. Security Deposit.
The amount of Tenant's security deposit held by Landlord under the
Lease is _________________________________ Dollars ($_____________).
Section 11. Prepaid Rent.
The amount of prepaid rent, separate from the security deposit, is
__________________________________ Dollars ($_____________), covering the
period from ________ to ________.
Section 12. Insurance.
All insurance, if any, required to be maintained by Tenant under the
Lease is presently in effect.
Section 13. Pending Actions.
There are no actions, whether voluntary or otherwise, pending against
the Tenant (or any guarantor of the Tenant's obligations under the Lease)
pursuant to the bankruptcy or insolvency laws of the United States or any state
thereof.
51
Section 14. Landlord's Obligations
As of the date of this Certificate, Landlord has performed all
obligations required of Landlord pursuant to the Lease and no offsets.
counterclaims, or defenses of Tenant under the Lease exist against Landlord.
As of the date of this Certificate, no events have occurred that, with the
passage of time or the giving of notice, would constitute a basis for offsets,
counterclaims, or defenses against the Landlord, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(If none, please state "None.")
Section 15. Assignments by Landlord.
Tenant has received no notice of any assignment, hypothecation or
pledge of the Lease or rentals under the Lease by Landlord.
Section 16. Assignments by Tenant.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises except as permitted under the Lease.
The address for notices to be sent to Tenant is as set forth in the Lease.
Section 17. Environmental Matters.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a retail store or restaurant (if so
permitted by the Lease) or otherwise used in accordance with all applicable
laws.
Section 18. Notification by Tenant.
From the date of this Certificate and continuing until the earlier to
occur of (i) March 31, 1997 and (ii) Buyer's acquisition of title to the
Property, Tenant agrees to immediately notify Buyer, in writing, at the
following address, on the occurrence of any event or the discovery of any fact
that would make any representation contained in this Certificate inaccurate:
The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Avenue
Fourth Floor
Los Angeles, CA 90036
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
52
Tenant makes this Certificate with the knowledge that it will be
relied upon by Buyer in agreeing to purchase the Property. In the event that
Buyer acquires the Property, nothing in this Section 18 shall limit Tenant's
obligations under the Lease.
Tenant his executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
TENANT
__________________________________
By:_______________________________
Name:
Its:
53
SCHEDULE H
RENT ROLL
Attached.
SCHEDULE H
54
XXXXXXXXXX PLAZA SHOPPING CENTER
LEASE SYNOPSIS
===================================================================================================================================
TENANT SIZE TERM RENT OPTIONS PERCENTAGE COMMENCEMENT TENANT
(IN SQUARE RENT DATE REIMBURSEMENTS
FEET)
-----------------------------------------------------------------------------------------------------------------------------------
OfficeMax, Inc. 30,676 15 years yrs 1-15 @ $268,415 yrs 16-20 @ $283,753 none 11/1/96 Tenant pays all
yrs 21-25 @ $299,091 taxes, insurance,
yrs 26-30 @ $314,492 and CAM
-----------------------------------------------------------------------------------------------------------------------------------
North Hydraulics, Inc. 23,700 10 years yrs 1-2 @ $130,350 yrs 11-15 @ $177,250 3.5% 9/19/94 Tenant pays all
yrs 3-5 @ $154,050 yrs 16-20 @ $189,600 taxes, insurance,
yrs 6-7 @ $165,900 and CAM (CAM has
yrs 8-10 @ $171,825 a not-to-exceed
figure that
adjusts annually)
-----------------------------------------------------------------------------------------------------------------------------------
Bally's Fitness Center 29,322 15 years yrs 1-5 @ $205,254 yrs 16-20 @ $278,559 none 7/15/94 Tenant pays all
yrs 6-10 @ $227,246 yrs 21-25 @ $307,881 taxes, insurance,
yrs 11-15 @ $249,237 and CAM
-----------------------------------------------------------------------------------------------------------------------------------
Standex International 20,000 10 years yrs 1-5 @ $150,000 yrs 11-13 @ $180,000 none 2/1/97 Tenant pays all
Corp. d/b/a Berean yrs 6-10 @ $165,000 taxes, insurance
Stores and CAM
-----------------------------------------------------------------------------------------------------------------------------------
Color Tile Supermart, 4,731 20 years yrs 1-10 @ $25,200 yrs 21-25 @ .5 CPI 4% 5/23/80 Free-standing
Inc. yrs 11-20 @ $30,000 yrs 26-30 @ .5 CPI building; Tenant
pays all costs
-----------------------------------------------------------------------------------------------------------------------------------
McDonalds Corporation 2,975 20 years yrs 1-5 @ $42,500 yrs 21-25 @ $59,895 none 4/1/94 Ground lease;
yrs 6-10 @ $45,000 yrs 26-30 @ $65,884 Tenant pays all
yrs 11-15 @ $49,500 yrs 31-35 @ $72,473 costs
yrs 16-20 @ $54,450 yrs 36-40 @ $79,720
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx'x, Inc. d/b/a 4,175 20 years yrs 1-20 @ $70,500 yrs 21-25 @ $70,500 5% 1/1/84 Free-standing
Grandy's Country + .5 CPI building; Tenant
Cookin' yrs 26-30 @ $70,500 pays all costs
+ .5 CPI
===================================================================================================================================
Reference should be made to each lease for exact terms of renewal options,
calculation of percentage rent, reimbursement, and other matters.
55
EXHIBIT I
Listing of monthly service providers (noncontracted) for Richardson Plaza:
Mr. Sweeper
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000
(000) 000-0000
Contact: Xxxx Xxxxxxxx
Xxxxxxxx Landscape Service
X.X. Xxx 000
Xxxxx, Xxxxx 00000-0000
(000) 000-0000
Contact: Xxxxx Xxxxxxxx
