EXHIBIT 10.01
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered as of the
Effective Date (as hereinafter defined) by and between 1910 PP LIMITED
PARTNERSHIP., a Texas limited partnership ("Seller"), and TRIPLE NET PROPERTIES
LLC, A Virginia limited liability company ("Buyer").
For and in consideration of the mutual covenants and agreements contained
in this Contract and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows:
1. PURCHASE AND SALE: Seller agrees to sell and convey to Buyer, and Buyer
agrees to buy from Seller, the Property (hereinafter defined) for the
consideration and upon and subject to the terms, provisions and conditions
hereinafter set forth. The "property" means:
(a) The land situated at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx,
Xxxxx, more particularly described in Exhibit A to this Contract (the "Land"),
together with (i) the improvements situated on the Land commonly known as 0000
Xxxxxxx Xxxxx and all other structures, fixtures, buildings and improvements
situated on the Land (such buildings, structures, fixtures and improvements
being herein called the "Improvements"), (ii) any and all rights, titles,
powers, privileges, easements, licenses, rights-of-way and interests appurtenant
to the Land and the Improvements, (iii) all rights, titles, powers, privileges,
licenses, easements, rights-of-way and interests, if any, of Seller, either at
law or in equity, in possession or in expectancy, in and to any real estate
lying in the streets, highways, roads, alleys, rights-of-way or sidewalks, open
or proposed; in front of, above, over, under, through or adjoining tie Land and
in and to any strips or gores of real estate adjoining the Land, and (iv) all
rights, titles, powers, privileges, interests, licenses, easements and
rights-of-way appurtenant or incident to any of the foregoing, including,
without limitation, to the extent owned by Seller, all mineral, oil, gas and
other hydrocarbon substances on and under and that may be produced from the
Land, as well as all development rights, land use entitlements, air rights,
water, water rights, riparian rights, and water stock relating to the Land;
(b) All equipment, fixtures, appliance, inventory, and other personal
property of whatever kind or character owned by Seller and attached to or
installed or located on or in the Land or the Improvements (the "Personal
Property");
(c) All of Sellor's right, title and interest in and to all agreements,
leases and other agreements that relate to or affect the Land, the Improvements,
the Personal Property or the operation thereof, including, without limitation,
tenant leases ("Tenant Leases") and all security deposits actually paid to or
received by Seller in connection therewith (and not as of the Closing Date
returned to or forfeited by tenants under Tenant Leases), the service and
maintenance contracts, warranties, guaranties and bonds, but only to the extent
that the foregoing are assignable by Seller without any necessary third party
consent, or to the extent that all necessary third party consents to such
assignments have been obtained (provided that Seller shall not be obligated to
obtain such third party consents); and
(d) To the extent assignable at no cost to Seller, all intangible
personal property, if any, owned by Seller and related to the Land and the
Improvements, including, without limitation: the name "1910 Pacific Place".
2. CONTRACT SALES PRICE: The total purchase price for the Property (the
"Sales Price") shall be TWENTY-NINE MILLION NINE HUNDRED THOUSAND AND NO/100
DOLLARS ($29,900,000,00),
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payable in cash at Closing. Payment in cash means payment by wire transfer of
immediately available federal funds ("Immediately Available Funds").
3. XXXXXXX MONEY: Within two (2) Business Days (as hereinafter defined) of
the Effective Date, Buyer shall deliver to Chicago Title Insurance Corporation,
0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000-0000, Attention: Xxxxx Xxxxxx
(Phone: (000) 000-0000; email: XxxxxxX@xxx.xxx, the "Title Company"), as escrow
agent, TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000,00) (by
Immediately Available Funds) as xxxxxxx money (the "Initial Xxxxxxx Money"),
which funds shall be deposited and held by the Title Company in an interest
bearing account, and Buyer shall provide such information, including its federal
identification number, as is necessary to establish such account. Unless Buyer
has terminated this Contract, prior to the expiration of the Feasibility Period
(as hereinafter defined), Buyer shall place into escrow with the Title Company
an additional amount equal to SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($750,000.00) as additional xxxxxxx money ("Additional Xxxxxxx Money"). To the
extent delivered by Buyer, the Xxxxxxx Money and the Additional Xxxxxxx Money,
together with any interest thereon are collectively referred to as the "Xxxxxxx
Money." If Buyer does not timely deliver the Initial Xxxxxxx Money as provided
in this Section 3, this Contract shall be null and void, and neither party
shall have any rights or obligations hereunder. If Buyer has not otherwise
terminated this Contract in accordance with the terms hereof, Buyer's failure to
timely deliver the Additional Xxxxxxx Money shall constitute a default by Buyer.
If the transaction contemplated by this Contract is closed, then the Xxxxxxx
Money will be applied in payment of the Sales Price to be paid at Closing. In
the event the transaction is not closed, then the Title Company shall disburse
the Xxxxxxx Money in accordance with the provisions of this Contract.
4. CLOSING:
(a) The closing of the sale of the Property to Buyer (the "Closing")
shall take place at the Title Company on the date (the "Closing Date") which is
thirty (30) days after expiration of the Feasibility Period (hereinafter
defined).
(b) At the Closing, Seller shall deliver or cause to be delivered to
Buyer, at Seller's sole cost and expense (except as otherwise provided in this
Section 4.(b)), the following:
(i) A Special Warranty Deed, in the form attached hereto as
Exhibit B, duly executed and acknowledged by Seller, conveying good and
indefeasible title in fee simple to the Land and Improvements, free and
clear of any and all liens, encumbrances, easements and assessments,
except for Permitted Exceptions (hereinafter defined) and any others
approved by Buyer in writing;
(ii) A Xxxx of Sale, Assignment and Assumption Agreement (the "Xxxx
of Sale"), in the form attached hereto as Exhibit C, duly executed and
acknowledged by Seller;
(iii) An Assignment and Assumption Agreement (the "Assignment and
Assumption Agreement"), in the form attached hereto as Exhibit D, duly
executed and acknowledged by Seller;
(iv) The Refurbishment Agreement (as hereinafter defined) duly
executed by Seller;
(v) An Owner's Policy of Title Insurance (the "Owner's Title
Policy"), delivered in due course by the Title Company after Closing, to
be issued by the Title Company on the standard form in use in the State of
Texas, in the full amount of the Sales Price, dated as of the Closing
Date, insuring Buyer's fee simple title to the Land and Improvements to be
good and indefeasible subject only to
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Permitted Exceptions and others approved by Buyer in writing, and the
standard printed exceptions, provided, however;
(A) the exception as to area and boundaries may, at the
option and expense of Buyer, be deleted except for "any shortages in
area";
(B) the standard exception as to restrictive covenants shall
either be deleted or except only for any restrictive covenants that
are Permitted Exceptions;
(C) the exception as to standby fees and taxes shall be
limited to standby fees and taxes for the year of Closing and
subsequent years, and subsequent assessments for prior years due to
changes in land usage or ownership;
Any endorsements to the Owner's Title Policy shall also be at the sole
cost and expense of Buyer.
(vi) Possession of the Property, subject only to the Tenant Leases
and the Permitted Exceptions;
(vii) A non-foreign affidavit, in the form attached hereto as
Exhibit E, duly executed and acknowledged by Seller;
(viii) Originals Of any Estoppel Certificates (as hereinafter
defined);
(ix) Evidence of its capacity and authority for the closing of this
transaction; and
(x) Such other documents as may be reasonably required to close
this transaction, duly executed.
(c) At the Closing, Buyer Shall perform and deliver, at Buyer's sole
cost and expense, the following:
(i) The Sales Price in Immediately Available Funds (reduced by the
amount, if any, of the Xxxxxxx Money applied for that purpose);
(ii) The Assignment and Assumption Agreement duly executed and
acknowledged by Buyer;
(iii) Evidence of its capacity and authority for the closing of the
transaction contemplated herein;
(iv) The Refurbishment Agreement duly executed by Buyer;
(v) Notices to all tenants of the Property satisfying the
requirements of Section 93.007 of the Texas Property Code, in form and
substance acceptable to Seller informing tenants of the change in
ownership and any change in place for payment of rentals and
acknowledging that Buyer has received and is responsible for those
tenants' security deposits transferred to Buyer; and
(vi) Such other documents as may be reasonably required to close
this transaction, duly executed.
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(d) Seller shall pay: the premium for the Owner's Title Policy, except
the premium of the area and boundary modification (if any) and the cost of any
other endorsements shall be paid entirely by Buyer, 1/2 of any escrow fee; fees
for preparation of the conveyance documentation; Sellers attorneys' fees; any
costs of preparing the Existing Survey (as hereinafter defined) and other
expenses stipulated to be paid by Seller under other provisions of this
Contract. Buyer shall pay: survey fees (excluding the costs of preparing the
Existing Survey but including any costs to update or recertify the Existing
Survey), the costs of any endorsements related to the Owner's Title Policy,
including the modification of the survey exception, the cost of any mortgagee
policy of title insurance (including endorsements), 1/2 of any escrow fee;
Buyer's attorneys' fees; and other expenses stipulated to be paid by Buyer under
other provisions of this Contract.
(e) Assessments, current taxes, and maintenance fees shall be prorated
as of the Closing Date. If ad valorem taxes for the year of Closing are not
available on the Closing Date, then proration of taxes shall be made on the
basis of taxes assessed in the previous year, with a subsequent cash adjustment
of such proration to be made between Seller and Buyer, if necessary, when actual
tax figures are available. In making the prorations required by this Section 4,
the economic burdens and benefits of ownership of the Property for the Closing
Date shall be allocated to Buyer. The provisions of this Section 4(e) shall
survive the Closing.
(f) Utilities and other customarily prorated expenses, including,
without limitation, water, sewer, gas, electricity, trash removal, and fire
protection service, and any contracts or agreements for services to the Property
to be transferred to and assumed by Buyer, to the extent paid for by Seller or
required to be paid for by Seller for a period after Closing, shall be prorated
as of the Closing Date. Other expenses relating to the Property up to the
Closing Date and all periods prior thereto including those required by any
contract or agreement for my services to the Property and those incurred or
ordered by Seller or Seller's agents that are not to be transferred and assumed
by Buyer, including, without limitation, insurance and administrative expenses,
shall be paid for by Seller, and Buyer shall not be liable therefor. Seller
shall not assign to Buyer, and Buyer shall not be entitled to, any deposits held
by any utility company or other company servicing the Property; instead, such
deposits shall be returned to Seller, and Buyer shall arrange and bear all
responsibility to arrange with all utility companies to have accounts styled in
Buyer's name beginning on the Closing Date. The provisions of this Section 4(f)
shall survive the Closing.
(g) All rentals and other tenant charges and reimbursements shall be
prorated between Seller and Buyer as of midnight of the date prior to the
Closing Date ("Proration Date"). At the Closing, Seller shall pay to Buyer in
cash the amount of the security deposits (if any) actually paid to or received
by Seller under the Tenant Leases (and not as of the Closing Date returned to or
forfeited by Tenants under the Tenant Leases) and any prepaid rentals actually
paid to or received by Seller for periods subsequent to the Closing. All rentals
and other tenant charges and reimbursements received in respect to the month in
which the Closing Date occurs (the "Current Month") and Additional Rents (as
defined below) for the Current Month that have been received as of the Proration
Date shall be prorated on a per diem basis based upon the number of days in the
Current Month on or prior to the Proration Date (which shall be allocated to
Seller) and the number of days in the Current Month after the Proration Date
(which shall be allocated to Buyer). Rents and other tenant charges and
Additional Rents that have not been received as of the Proration Date shall not
be prorated on the Closing Date. All rentals and other tenant charges and
Additional Rents received by Buyer from a tenant after the Closing Date shall be
applied as follows: (i) first, to the payment of the actual reasonable third
party costs of collecting such amount; (ii) second, on account of any amounts
then currently due Buyer from such tenant for any periods subsequent to the
Proration Date; and (iii) third, on account of any amount then currently due
Seller from such tenant for any periods on or prior to the Proration Date. Buyer
shall (i) xxxx tenants for all rentals and other tenant charges and Additional
Rents, (ii) include all delinquent amounts in its normal xxxxxxxx, (iii) pursue
using reasonable and customary measures the collection of all amounts, and (iv)
reasonably cooperate with Seller in collecting any amounts due Seller (but shall
not be required to litigate or declare a default in any Tenant Lease).
Delinquent payments, if and when collected by Buyer, shall be paid to Seller to
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the extent of Seller's interest therein, and if not collected within sixty (60)
days after Closing, Seller shall have the right to collect same and to pursue an
action against any tenant owing delinquent rents and any other amounts to Seller
attributable to the period prior to the Closing Date to collect such amounts,
together with damages and the like as a result thereof (but in no event shall
Seller have any right to institute eviction proceedings with respect thereto).
After application as set forth above, Buyer shall remit to Seller within fifteen
(15) business days after the end of the calendar month of Buyer's receipt of
that portion of rentals and other tenant charges and Additional Rents received
after the Closing Date attributable to periods prior to the Closing Date.
Tenants of the Property may be obligated to pay, as additional rent, certain
escalations in base rent, parking charges and overtime HVAC charges and
pass-throughs of operating and similar expenses and taxes pursuant to the terms
of the Tenant Lease (collectively," Additional Rents"). Any operating cost
pass-throughs or other sums paid by Tenant to landlord as provided for in the
Tenant Leases (including, without limitation, real estate tax reimbursements
paid by tenants under the Tenant Leases) shall be apportioned as follows: (i)
all amounts paid to Seller prior to the Proration Date for the period prior to
the Closing Date shall be retained by Seller, and (ii) any amounts payable by
tenants but not yet collected through the Proration Date, which reimburse
landlord for charges accruing prior to the Closing Date, shall be paid by Buyer
to Seller within fifteen (15) business days after the end of each calendar
month; and (iii) all amounts payable by tenants to reimburse for charges
accruing for the period beginning on, and continuing after, the Closing Date
shall be retained by Buyer. Except for checks for the Current Month which shall
be retained by Seller based on Seller's period of ownership of the Property
during the Current Month, and of which any remainder shall be paid to Buyer
within fifteen (15) business days of Seller's receipt of such check, Seller
agrees that any checks received by Seller from tenants after the Closing shall,
within fifteen (15) business days be endorsed (without recourse) and delivered
to Buyer. As to any Additional Rents that are based on estimates and that are
subject to adjustment or reconciliation pursuant to the Tenant Leases after the
Closing Date, Seller and Buyer shall prorate such Additional Rents at the time
that such estimates are actually adjusted or reconciled pursuant to the terms of
the Tenant Leases, Buyer shall deliver bills to each tenant for Additional Rents
by no later than APRIL 1, 2004 and Buyer shall use commercially reasonable
efforts to pursue collection of such bills. Any amounts that may be due Seller
as a result of such re-prorations shall be paid by Buyer to Seller within
fifteen (15) business days after Buyer collects such amounts from the tenants,
and any amounts that may be due the tenants from Seller as a result of such
re-prorations shall be paid by Seller to Buyer within fifteen (15) business
days after written request therefor is delivered to Seller by Buyer (together
with reasonable evidence of the amount due the tenants). The provisions of this
Section 4 (g) shall survive the Closing.
(h) At the Closing, Seller shall deliver to Buyer (or make available at
the Property), to the extent in Seller's possession, originals of the Tenant
Leases, originals of the Elevator Contract (as hereinafter defined), originals
of the Lobby Contract (as hereinafter defined), copies of the tenant
correspondence files, keys, access codes, and originals of any other items which
Seller was required to furnish or make available pursuant to Sections 7 (b).
except for Seller's general ledger and other internal books or records which
shall be retained by Seller.
5. FEASIBILITY STUDY AND INSPECTION:
(a) Buyer is granted the right to conduct engineering and/or market and
economic feasibility studies of the Property and a physical inspection of the
Property, including studies or inspections to determine the existence of any
environmental hazards or conditions (collectively, the "Feasibility Study")
during the period (the "Feasibility Period") commencing on the Effective Date
and ending at 5:00 p.m., Dallas, Texas time thirty (30) days thereafter. With
Seller's permission, after Seller has received advance notice sufficient to
permit it to schedule in an orderly manner Buyer's examination of the Property
and to provide at least twenty-four (24) hours advance written notice to any
affected tenants, Buyer or its designated agents may enter upon
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the Property for purposes of analysis or other tests and inspections deemed
necessary by Buyer for the Feasibility Study; provided, however, Buyer is not
permitted to perform any intrusive testing, including, without limitation, a
Phase II environmental assessment or boring, without (i) submitting to Seller
the scope and inspections for such testing; and (ii) obtaining the prior written
consent of Seller which may be withheld in Seller's sole and absolute
discretion. Buyer shall not alter the physical condition of the Property without
notifying Seller of its requested tests, and obtaining the written consent of
Seller to any physical alteration of the Property. Seller understands that Buyer
intends to arrange an interview with the FDIC during the Feasibility Period.
Seller agrees to provide reasonable assistance in attempting to arrange the
interview with the FDIC; provided Buyer agrees that Buyer shall not conduct or
cause to be conducted any tenant interview unless a representative of Seller is
present throughout such interview. Provided Buyer provides at least two (2)
business days prior written notice to Seller, Seller shall cause a
representative to be reasonably available for the interview with the FDIC. Buyer
will exercise its best efforts to conduct or cause to be conducted all
inspections and tests in a manner and at times which will not unreasonably
interfere with any tenant's use and occupancy of the Property. If Buyer
determines, in its sole judgment, that the Property is not suitable for any
reason for Buyer's intended use or purpose, or is not in satisfactory condition,
then Buyer may terminate this Contract by written notice to Seller prior to
expiration of the Feasibility Period, in which case the Xxxxxxx Money will be
returned to Buyer, and neither party shall have any further right or obligation
hereunder other than as set forth herein with respect to rights or obligations
that survive termination. If the Contract is not terminated in the manner and
within the time provided in this Section 5, the condition provided in this
Section 5(a) and any and all objections with respect to the Feasibility Study
shall be deemed to have been waived by Buyer for all purposes. The Feasibility
Study shall be at Buyer's sole cost and expense.
(b) Buyer shall promptly restore the Property to its original condition
if damaged or changed due to the tests and inspections performed by Buyer, free
of any mechanic's or materialman's liens or other encumbrances arising out of
any of the inspections or tests, and shall provide Seller, at no cost to Seller,
with a copy of the results of any tests and inspections made by Buyer, excluding
any market and economic feasibility studies. Buyer shall keep confidential the
results of any tests and inspections made by Buyer, and shall not disclose said
results to any third parties; other than Buyer's advisors and other
representatives who need to know such information for the purpose of evaluating
the acquisition of the Property (collectively "Buyer Group"), and the Buyer
Group shall be informed to treat the such information confidentially and in
accordance with the terms and conditions of this Contract. BUYER HEREBY
INDEMNIFIES AND HOLDS SELLER HARMLESS FROM ALL CLAIMS, LIABILITIES, DAMAGES,
LOSSES, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES), ACTIONS AND CAUSES OF ACTION ARISING OUT OF OR IN ANY WAY RELATING TO THE
FEASIBILITY STUDY PERFORMED BY BUYER, ITS AGENTS, INDEPENDENT CONTRACTORS,
SERVANTS AND/OR EMPLOYEES, INCLUDING THOSE CAUSED BY OR IN ANY WAY CONTRIBUTED
TO BY THE NEGLIGENCE OF SELLER, ITS AGENTS, INDEPENDENT CONTRACTORS, SERVANTS
AND/OR EMPLOYEES; PROVIDED SUCH INDEMNITY SHALL NOT EXTEND TO THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SELLER, ITS AGENTS, INDEPENDENT
CONTRACTORS, SERVANTS AND/OR EMPLOYEES. Buyer further waives and releases any
claims, demands, damages, actions, causes of action or other remedies of any
kind whatsoever against Seller for property damages or bodily and/or personal
injuries to Buyer, its agents, independent contractors, servants and/or
employees arising out of the Feasibility Study or use in any manner of the
Property. Buyer shall procure and continue in force from and after the date
Buyer first enters the Property, and continuing throughout the term of this
Contract, Comprehensive General Liability Insurance with a combined single limit
of not less than One Million Dollars ($1,000,000) per occurrence, or Commercial
General Liability Insurance, with limits of not less than One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000) per event.
Seller and West World Management, Inc. shall be included as an additional
insured(s) under such comprehensive general liability or commercial general
liability coverage. Such insurance shall include: (i) personal injury liability
with employee and contractual exclusions removed; and (ii) a waiver of
subrogation in favor of Seller without exception for the negligence of any
additional insured. Buyer will not be permitted to come onto the Property unless
and until Buyer has provided to Seller a certificate of insurance evidencing
such coverage, the additional insured status of Seller,
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and such waiver of subrogation. The provisions of this Section 5(b) shall
survive the Closing or any termination of this Contract and are not subject to
any liquidated damage limitation on remedies, notwithstanding anything to the
Contrary in this Contract.
6. TITLE APPROVAL:
(a) Seller has previously delivered to Buyer and Buyer acknowledges
receipt of: (i) a Commitment for Title Insurance with copies of all recorded
instruments affecting the Property and recited as exceptions in said Commitment
for Title Insurance (collectively, the "Commitment") and (ii) the most current
survey of the Property in Seller's possession or control ("Existing Survey").
Buyer may, at Buyer's sole cost and expense, obtain an update of the Existing
Survey, If Buyer has an objection to items disclosed in the Commitment or the
Existing Survey, then Buyer will be entitled to give Seller written notice of
its objections tor a period of ten (10) Business Days following the Effective
Date. If Buyer gives timely written notice of its objections, then Seller may,
but shall not have any obligation to, cure such objections for a period of five
(5) days from the date. Seller receives Buyer's notice ("Seller's Cure Period").
Seller shall utilize reasonable diligence to cure any errors in the Commitment,
provided Seller shall not have any obligation to expend any money, to incur any
contractual or other obligations, or to institute any litigation in pursuing
such efforts other than to remove at Closing financing liens of an ascertainable
amount created by, through, or under Seller. If any objection is not satisfied
during Seller's Cure Period, then Buyer shall elect not later then five (5) days
after the expiration of Seller's Cure Period, but in any event on or before
expiration of the Feasibility Period, as its sole and exclusive remedy to
either (i) terminate this Contract, in which case the Xxxxxxx Money shall be
refunded to Buyer, and neither party will have any further rights or obligations
pursuant to this Contract, other man as set forth herein with respect to rights
or obligations that survive termination; or (ii) waive the unsatisfied objection
(which shall thereupon become a Permitted Exception) and proceed to Closing. Any
exception to title not objected to by Buyer in the manner and within the time
period specified in this Section 6(a) shall be deemed accepted by Buyer. The
phrase "Permitted Exceptions" means those exceptions to title set forth in the
Commitment or Existing Survey and that have been accepted or deemed accepted by
Buyer. The failure of Seller to deliver a Commitment or the Existing Survey
satisfying the requirements of this Section 5(a) will not under any
circumstances extend the period for review of the Commitment or Existing Survey
beyond the Feasibility Period, and Buyer's sole and exclusive remedy for any
such failure shall be to terminate this Contract prior to the expiration of the
Feasibility Period in accordance with the provisions of Section 5(a). Buyer
shall notify Seller in writing of any failure of the Commitment or Survey to
satisfy the requirements of this Section 6(a) within ten (10) days after the
Commitment and Survey are received by Buyer, and if Buyer fails to do So, then
they shall be deemed to satisfy such requirements.
(b) After the Effective Date, Seller shall not intentionally or
deliberately place on the Property any encumbrance (references to "encumbrance"
include any lien, encumbrance, or other exception to title) other than the
Permitted Exceptions. If prior to the Closing Date title to the Property becomes
subject to any encumbrance other than a Permitted Exception, then Seller may
(but shall not be obligated to) attempt to cure such encumbrance. If Seller is
unable or unwilling to cure any such encumbrance, then either Buyer may, as its
sole and exclusive remedy: (i) terminate this Contract by written notice to
Seller whereupon the Xxxxxxx Money shall be returned to Buyer, and neither party
will have any right or obligation hereunder other than as set forth herein with
respect to rights or obligations that survive termination; or (ii) proceed to
Closing without receiving any credit against or reduction of the Sales Price
whereupon Buyer shall be deemed to have accepted such encumbrance as an
exception to title (which shall thereupon become a Permitted Exception).
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7. SUBMISSION MATTERS:
(a) Seller shall within five (5) business days deliver to Buyer copies
of the following (the "Submission Matters"), to the extent (and only to the
extent) that such items are available and in Seller's actual possession:
(i) the Tenant Leases;
(ii) revenue and expense reports, or equivalent, in the form
prepared by the property manager for 2002 and 2003 ("Operating Reports");
(iii) the aged delinquency report(s) for the previous 24 months, in
the form prepared by the property manager;
(iv) copies of any service or maintenance contracts which are
currently in effect ("Service Contracts");
(v) Seller's most current Owner's Title Policy (with the amount of
the coverage removed);
(vi) Elevator Modernization Contract dated August 28, 2003 as
amended November 14, 2003 by and between Seller and Xxxxxxxxx Elevator
("Elevator Contract");
(vii) Lobby modernization plans prepared by Architeam, Architects
and Interior Designers ("Lobby Plans");
(viii) Parking Garage Lease Agreement dated as of May 31, 1953,
regarding the elm street garage ("Parking Agreement");
(ix) An inventory of the Personal Property;
(x) A rent roll as of a recent date in the form provided to Seller
by its property manager;
(xi) copies of all utility and tax (real and personal property)
bills for the current year and the immediately preceding year together
with the current tax assessment information; and
(xii) copies of any certificates of occupancy;
(b) Seller is currently in the process of finalizing the contract for
the modernization of the lobby of the Building in accordance with the Lobby
Plans ("Lobby Contract"). At least five (5) days prior to the expiration of the
Feasibility Period, Seller shall provide to Buyer a copy of the executed Lobby
Contract.
(c) In addition, Seller has or will cause to be made available to Buyer
for inspection at the Property the following (the "Additional Submission
Matters"), to the extent (and only to the extent) that such items are available
and in Seller's actual possession or control:
i) copies of any plans and specifications;
ii) maintenance records for the Property; and
iii) tenant correspondence files.
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(d) Any failure of Seller to timely deliver any of the Submission
Matters or make available any of the Additional Submission Matters will not
extend the Feasibility Period beyond the period prescribed in Section 5.(a)
hereof, and Buyer's sole and exclusive remedy on account of any such failure
will be to terminate this Contract prior to the expiration of the Feasibility
Period in accordance with the provisions of such Section 3.2. Seller makes no
representation or warranty, express or implied, as to the accuracy or
completeness of the information contained in the Submission Matters or the
Additional Submission Matters.
(e) The Submission Materials and the Additional Submission Matters
(together with any other information regarding the Property made available to
Buyer) are confidential and shall not be distributed or disclosed by Buyer to
any person or entity, except as may be required by law, provided that Buyer may
disclose the Submission Materials to the Buyer Group provided such parties are
made aware of the confidential nature of such information. If the transaction
evidenced hereby fails to close for any reason whatsoever, Buyer shall return to
Seller all copies of the Submission Materials which Seller or its agents may
have delivered to Buyer (together with any other information regarding the
Property made available to Buyer).
8. TENANT ESTOPPELS: It shall be a condition precedent to Buyer's obligations
to proceed to Closing that Seller shall have delivered to Buyer, no later than
three (3) days prior to the Closing Date, an estoppel certificate, in the form
of estoppel required under such tenants lease ("Estoppel Certificate") from the
Federal Deposit Insurance Corporation ("FDIC"). Seller shall not be in default
under this Agreement or have any liability to Buyer if Seller is unable to
obtain the Estoppel Certificate. In the event that Seller is unable to obtain
the required Estoppel Certificate, Buyer may, as its sole and exclusive remedy:
(i) terminate this Contract by written notice to Seller whereupon the Xxxxxxx
Money shall be returned to Buyer, and neither party will have any right or
obligation hereunder other than as set forth herein with respect to rights or
obligations that survive termination; or (ii) waive the requirement of such
Estoppel Certificate and proceed to Closing without receiving any credit against
or reduction of the Sales Price.
9. BROKER'S FEE: Buyer and Seller represent and warrant to each other that
no real estate commissions, finders' fees, or brokers' fees have been or will be
incurred in connection with the sale of the Property by Seller to Buyer, other
than Wicker & Associates ("Broker"). Seller shall pay a commission to Broker
pursuant to a separate agreement between Seller and Broker Such commission shall
be deemed earned and shall be due and payable only if, as and when the sale
contemplated by this Contract is consummated. Buyer and Seller shall indemnify,
defend and hold each other harmless from any claim, liability, obligation, cost
or expense (including attorneys' fees and expenses) for fees or commissions
relating to Buyer's purchase of the Property asserted against either party by
any broker or other person (other than the Broker) claiming by, through or under
the indemnifying party or whose claim is based on the indemnifying party's acts.
The terms and provisions hereof supersede in their entirety any prior agreements
or understandings of any kind or character between Seller and Broker with
respect to the payment of a commission, finder's fee or other sum in connection
with the sale of the Property. The provision of this Section 9 shall survive the
Closing or any termination of this Contract.
10. LIMITATION OF SELLER'S REPRESENTATIONS AND WARRANTIES:
(a) BUYER ACKNOWLEDGES THAT EXCEPT FOR ANY EXPRESS WARRANTIES AND
REPRESENTATIONS CONTAINED IN THIS CONTRACT OR ANY INSTRUMENT, DOCUMENT, OR
AGREEMENT TO BE DELIVERED TO BUYER AT CLOSING, BUYER IS NOT RELYING ON ANY
WRITTEN, ORAL, IMPLIED, OR OTHER REPRESENTATIONS, STATEMENTS, OR WARRANTIES BY
SELLER OR ANY AGENT OF SELLER OR ANY REAL ESTATE BROKER OR SALESMAN. ALL
PREVIOUS WRITTEN, ORAL, IMPLIED, OR OTHER STATEMENTS, REPRESENTATIONS,
WARRANTIES, OR AGREEMENTS, IF ANY, ARE MERGED HEREIN. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, SELLER SHALL NOT HAVE ANY LIABILITY TO BUYER, AND
9
BUYER SHALL RELEASE SELLER FROM ANY LIABILITY (INCLUDING, WITHOUT LIMITATION,
CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY), FOR,
CONCERNING, OR REGARDING: (A) THE NATURE AND CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE SUITABILITY THEREOF FOR ANY ACTIVITY OR USE;
(B) ANY IMPROVEMENTS OR SUBSTANCES LOCATED THEREON; OR (C) THE COMPLIANCE OF THE
PROPERTY WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY GOVERNMENT OR
OTHER BODY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13, SELLER HAS NOT MADE,
DOES NOT MAKE, AND EXPRESSLY DECLAIMS, ANY WARRANTIES, REPRESENTATIONS,
COVENANTS OR GUARANTEES, EXPRESSED OR IMPLIED, OR ARISING BY OPERATION OF LAW,
AS TO THE MERCHANTABILITY, HABITABILITY, QUANTITY, QUALITY, OR ENVIRONMENTAL
CONDITION OF THE PROPERTY OR ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR USE. BUYER AFFIRMS THAT IT: (I) HAS INVESTIGATED AND INSPECTED THE
PROPERTY AND IS FAMILIAR AND SATISFIED WITH THE PHYSICAL CONDITION OF THE
PROPERTY; AND (II) HAS MADE ITS OWN DETERMINATION AS TO THE MERCHANTABILITY,
QUANTITY, QUALITY, AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION,
THE POSSIBLE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR WASTE OR OTHER
ENVIRONMENTAL CONTAMINATION AND THE PROPERTY'S SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR USE. BUYER HEREBY ACCEPTS THE PROPERTY IN ITS PRESENT
CONDITION (INCLUDING ENVIRONMENTAL CONDITIONS) ON AN"AS IS," "WHERE IS," AND
"WITH ALL FAULTS" BASIS. BUYER FURTHER ACKNOWLEDGES THAT WITHOUT THIS
ACCEPTANCE, THIS SALE WOULD NOT BE MADE AND THAT EXCEPT AS EXPRESSLY SET FORTH
IN THE CONTRACT, AND WILL NOT UNDER ANY CIRCUMSTANCES HAVE, ANY OBLIGATION
WHATSOEVER TO UNDERTAKE ANY REPAIR, ALTERATION, REMEDIATION, OR OTHER WORK OF
ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. BUYER AND ITS SUCCESSORS
AND ASSIGNS HAVE, AND SHALL BE DEEMED TO HAVE, ASSUMED ALL RISK AND LIABILITY
WITH RESPECT TO THE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR WASTE OR OTHER
ENVIRONMENTAL CONTAMINATION ON OR WITHIN OR UNDER THE SURFACE OF THE PROPERTY,
WHETHER KNOWN OR UNKNOWN, APPARENT, NON-APPARENT OR LATENT, AND WHETHER EXISTING
PRIOR TO, AT, OR SUBSEQUENT TO, TRANSFER OF THE PROPERTY. EXCEPT AS EXPRESSLY
SET FORTH IN THIS CONTRACT, BUYER AND ITS SUCCESSORS AND ASSIGNS HEREBY RELEASE
SELLER OF AND FROM ANY AND ALL RESPONSIBILITY, LIABILITY, OBLIGATIONS, AND
CLAIMS, KNOWN OR UNKNOWN, INCLUDING, WITHOUT LIMITATION, ANY OBLIGATION TO TAKE
THE PROPERTY BACK OR REDUCE THE PRICE, OR ACTIONS FOR CONTRIBUTION OR INDEMNITY,
THAT BUYER OR ITS SUCCESSORS AND ASSIGNS MAY HAVE AGAINST SELLER OR THAT MAY
ARISE IN THE FUTURE, BASED IN WHOLE OR IN PART, UPON THE PRESENCE OF TOXIC OR
HAZARDOUS SUBSTANCES OR WASTE OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN
OR UNDER THE SURFACE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL
RESPONSIBILITY, LIABILITY, OBLIGATIONS, AND CLAIMS THAT MAY ARISE UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED 42 U.S.C.'9601 ET SEQ. BUYER FURTHER ACKNOWLEDGES THAT THE PROVISIONS
OF THIS DISCLAIMER AND RELEASE HAVE BEEN FULLY EXPLAINED TO BUYER AND THAT BUYER
FULLY UNDERSTANDS AND ACCEPTS SAME. THE PROVISIONS OF THIS DISCLAIMER AND
RELEASE SURVIVE CLOSING.
(b) Except as otherwise specifically stated in this Contract, Buyer
agrees that Seller shall not be responsible or liable to Buyer for any
construction defects, errors, omissions, or on account of any other conditions
affecting the Property, as Buyer is purchasing the Property AS IS, WHERE IS, and
WITH ALL FAULTS. Buyer or anyone claiming by, through or under Buyer, hereby
fully releases Seller, its employees, officers, directors, representatives,
attorneys and agents from any claim, cost, loss, liability, damage, expense,
demand, action or cause of action arising from or related to any construction
defects, errors, omissions, or other conditions affecting the Property. Buyer
further acknowledges and agrees that this release shall be given full force and
effect according to each of its expressed terms and provisions, including,
without limitation, those relating to unknown and suspected claims, damages and
causes of action. This covenant releasing Seller shall
10
be a covenant running with the Property and shall be binding upon Buyer, its
successors and assigns. Subject to consummation of this Contract, Seller hereby
assigns to Buyer, without recourse or representation of any nature, effective
upon Closing, any and all claims that Seller may have against any third party
for any such errors, omissions or defects in the Property. As a material
covenant and condition of this Contract, Buyer agrees that in the event of any
such construction defects, errors, omissions or on account of any other
conditions affecting the Property, Buyer shall look solely to Seller's
predecessors in title or to such contractors and consultants as may have
contracted for work in connection with the Property for any redress or relief.
Upon the assignment by Seller of its claims, Buyer releases Seller of all
rights, express or implied, Buyer may have against Seller arising out of or
resulting from any errors, omissions or defects in the Property. Buyer further
understands that some of Seller's predecessors in title may have filed petitions
under the bankruptcy code and Buyer may have no remedy against such
predecessors, contractors or consultants. This waiver and release of claims
shall survive the Closing.
11. DEFAULT:
(a) Seller's Remedies. If Buyer fails to perform its obligations
pursuant to this Contract at or prior to Closing for any reason except failure
by Seller to perform hereunder, or if prior to Closing any one or more of
Buyer's representations or warranties are breached in any material respect, then
Seller shall be entitled, as its SOLE and EXCLUSIVE remedy (except as provided
in Sections 5(b) and 9), to terminate this Contract and retain the Xxxxxxx Money
as liquidated damages and not as penalty, in full satisfaction of claims against
Buyer hereunder, Seller and Buyer agree that Seller's damages resulting from
Buyer's default are difficult, if not impossible, to determine, and the Xxxxxxx
Money is a fair estimate of those damages and has been agreed to in an effort to
cause the amount of such damages to be certain. Notwithstanding anything in this
Section 11(a) to the contrary, in the event of Buyer's default or termination of
this Contract, Seller shall have all remedies available at law or in equity if
Buyer or any party related to or affiliated with Buyer is asserting any Claims
or right to the Property that would otherwise delay or prevent Seller from
having clear, indefeasible and marketable title to the Property. If Closing is
consummated, then Seller shall have all remedies available at law or in equity
in the event Buyer fails to perform any obligation of Buyer under this Contract.
(b) Buyer's Remedies. If Seller fails to perform its obligations
pursuant to this Contract for any reason except failure by Buyer to perform
hereunder, or if prior to Closing any one or more of Seller's representations or
warranties are breached in any material respect, then Buyer shall elect, as its
SOLE and EXCLUSIVE remedy, to either: (i) terminate this Contract by giving
Seller timely written notice of such election prior to or at Closing and recover
the Xxxxxxx Money, together with Buyer's actual, third party, out of pocket
costs and expenses incurred in connection with Buyer's Feasibility Study, up to
a maximum cumulative reimbursement not to exceed $25,000.00; or (ii) enforce
specific performance; or (iii) waive said failure or breach and proceed to
Closing. Notwithstanding anything herein to the contrary, Buyer shall be deemed
to have elected to terminate this Contract if Buyer fails to deliver to Seller
written notice of its intent to file a claim or assert a cause of action for
specific performance against Seller on or before fifteen (15) business days
following the scheduled Closing Date or, having given such notice, fails to file
a lawsuit asserting such Claim or cause of action in Dallas County, Texas,
within two (2) months following the scheduled Closing Date. In no event or
circumstance shall Buyer be entitled to any consequential or punitive damages.
Buyer's remedies shall be limited to those described in this Section 11 (b).
12. ATTORNEYS' FEES: Any party to this Contract who is the prevailing party in
any legal proceeding against the other party brought under or with respect to
this Contract or transaction shall be additionally entitled to recover court
costs and reasonable attorneys' fees from the non-prevailing party.
11
13. REPRESENTATION AND WARRANTIES OF SELLER:
(a) Seller hereby represents and warrants to Buyer, which
representations and warranties shall be deemed made by Seller to Buyer as of the
Effective Date and also as of the Closing Date, that to Seller's current actual
knowledge, no special investigation or inquiry having been made:
(i) There are no parties in possession of any portion of the
Property except Seller and tenants under Tenant Leases;
(ii) To Seller's knowledge, neither Seller nor any tenant is in
default of any material obligation pursuant to the terms of the Tenant
Leases
(iii) Seller has, or on the Closing Date will have, the corporate
power and authority to sell and convey the Property as provided in this
Contract and to carry out Seller's obligations hereunder, and that all
requisite corporate action necessary to authorize Seller to enter into
this Contract and to carry out Seller's obligations hereunder has been, or
on the Closing Date will have been, taken;
(iv) To Seller's knowledge, the Operating Reports are true and
correct in all material respects;
(v) Seller has received no written notice from any government
agency having jurisdiction over the Land or Improvements that either
considers the construction of the Improvements or the operation or use of
the Property to be in violation of any law, ordinance, regulation or
order;
(vi) Without any other investigation or inquiry of any kind, except
as may be lawfully located on the Property, to Seller's knowledge, there
are no Hazardous Materials in, attributable to or affecting the Land or
Improvements. As used herein, a "Hazardous Material" means any hazardous,
toxic or dangerous waste, substance or material, pollutant or contaminant,
as defined for purposes of any Environmental Laws or any other federal,
state or local law, ordinance, rule, regulation or other enforcement
vehicle applicable to the Property, or any substance which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous, or any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated
biphenyls (PCBs), or radon gas, urea formaldehyde, asbestos or lead.
"Environmental Laws" means all federal, state and local laws, ordinances,
rules and regulations now or hereafter in force, as amended from time to
time, and all federal and state court decisions, consent decrees and
orders interpreting or enforcing any of the foregoing, in any way relating
to or regulating human health or safety, or industrial hygiene or
environmental conditions, or protection of the environment, or pollution
or contamination of the air, soil, surface water or groundwater, and
includes the Comprehensive Environmental Response, Compensation and
Liability Act of 1980,42 U.S.C.' 9601, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C.' 6901, et seq., and the Clean Water Act, 33
U.S.C.' 1251, et seq.;
(vii) There are no actions, suits or proceedings pending for which
Seller has received service of process, before or by any judicial,
administrative or union body, any arbiter or any governmental authority,
against or affecting Seller or the Property. Seller has not received any
written notice of a pending or threatened eminent domain or similar
proceeding that would affect the Land or Improvements;
(viii) Seller is not a "foreign person" as defined in Section 1445
of the Internal Revenue Code of 1986, as amended, and the Income Tax
Regulations thereunder;
(ix) Seller is not a person or entity described by Section 1 of the
Executive Order (No. 13,224) Blocking Property and Prohibiting
Transactions With Persons Who commit, Threaten to
12
Commit, or Support Terrorism, 66 Fed Reg, 49,079 (September 24, 2001), and
to Seller's knowledge does not engage in any dealings or transactions, and
is not otherwise associated, with any such persons or entities;
(x) To Seller's knowledge, there are no lease brokerage
agreements, leasing commission agreements or other agreements providing
for payments of any amounts for leasing activities or procuring tenants
with respect to the Property other than as disclosed in the Submission
Matters or as set forth in the Tenant Leases;
(xi) To Seller's knowledge, this Contract does not and the
transaction contemplated in this Contract will not violate any provision
of any agreement or judicial order to which Seller is a party or to which
Seller or the Property is subject;
(xii) To Seller's Knowledge, there is no litigation pending or
threatened with respect to the Property, or with respect to Seller which
impairs Seller's ability to perform its obligations under this Contract;
and
(xiii) Seller does not currently have any employees.
(b) Whenever the phrases "to Seller's actual knowledge," "to Seller's
knowledge," or "to the best of Seller's knowledge" or any similar phrase is used
herein, such phrases shall be deemed to mean the present, actual knowledge (as
opposed to the imputed knowledge), without inquiry or investigation, of such
fact or condition by Xxxxxxx X. X. Xxxxxxxx, (President of West World Holding,
Inc.), Xxxxxx Xxxxxxx Xxxx (Senior Vice President of West World Holding, Inc.
and asset manager with responsibility for the Property) and Xxxxxx Xxxxxxxxx
(Vice President of West World Management, Inc., the property manager),
(collectively if one or more "Seller's Representative"). The representations
and warranties contained in Section 13(a) are the representations and warranties
of Seller and in no event or circumstances will be construed as either the
individual representations and warranties of Seller's Representative or to
create any individual liability for Seller's Representative.
(c) It shall be a condition precedent to Buyer's obligations hereunder
that as of the date of Closing, all of Seller's representations and warranties
shall be true and correct in all material respects. If the representations and
warranties of Seller which to Sellers actual knowledge were true and correct
when made are not true and correct in all material respects on the date of
Closing, then Buyer may, at its option, (a) waive such condition and close this
transaction in accordance with the terms and provisions of this Contract or, (b)
terminate this Contract by notice in writing to Seller and receive back the
Xxxxxxx Money whereupon neither party shall have any further rights or
obligations pursuant to this Contract, other than as set forth herein with
respect to rights or obligations that survive termination.
(d) Subject to the provisions of Section 13 (c), the representations and
warranties of Seller made in Section 13(a) shall survive the Closing for a
period of six (6) months (the "Survival Period"). Buyer shall have the right to
bring an action against the Seller on the breach of a representation or warranty
hereunder, but only on the following conditions: (i) the Buyer first learns of
the breach after Closing and files such action within the Survival Period, and
(ii) Buyer shall not have the right to bring a cause of action for a breach of a
representation or warranty unless the damage to such party on account of such
breach (individually or when combined with damages from other breaches) equals
or exceeds Twenty-Five Thousand and No/100 Dollars ($25,000,00).
Furthermore, Buyer agrees that the maximum liability of Seller for the alleged
breach of any or all representations or warranties set forth in this Contract
is limited to Two Hundred Thousand and No/100 Dollars ($200,000.00). The
provisions of this Section 13(d) shall survive the Closing.
13
(e) If any representation or warranty above is known by Buyer prior to
Closing to be untrue and is not remedied by Seller prior to Closing, Buyer may
as Buyer's sole end exclusive remedy, either (i) terminate this Contract
whereupon the Xxxxxxx Money shall be refunded to Buyer, and neither party shall
have any further rights or obligations pursuant to this Contract, other than as
set forth herein with respect to rights or obligations that survive termination,
or (ii) waive its objections and close the transaction without any reduction or
credit against the Sales Price. The foregoing representations and warranties
shall not survive the Closing.
14. COVENANTS OF SELLER: From the Effective Date until Closing, Seller shall:
(a) Maintain and operate the Property in its current state and
condition, reasonable wear and tear and damage from casualty excepted.
(b) Continue all insurance policies relative to the Property in full
force and effect.
(c) Not remove any item of Personal Property from the Land or
Improvements unless replaced by a comparable item of Personal Property, except
for any dead landscaping, which Seller shall have no obligation to replace.
(d) Refrain from entering into any contracts, or other agreements
(excluding leases) regarding the Property (other than contracts in the ordinary
and usual course of business and which are cancelable by the owner of the
Property without penalty within thirty (30) days after giving notice thereof).
(e) Deliver or make available to Buyer copies of all new Leases entered
into after the date hereof and copies of all Proposals entered into after this
date (the "New Proposals"). Seller shall not without the prior written consent
of Buyer, which consent shall not be unreasonably withheld, conditioned or
delayed (except where such consent is deemed granted as provided in this
Agreement) (i) amend any Tenant Leases, (ii) cancel any Tenant Leases, or (iii)
execute any new leases; provided, however, that Seller shall be permitted to
enter into, and Buyer shall be deemed to have approved and consented to, any
lease agreement or amendment that is required pursuant to an existing Tenant
Lease or memorializes the exercise of an existing right or option under an
existing Tenant Lease. Buyer shall have five (5) days from its receipt of any
New Proposal to notify Seller in writing of its approval or rejection of any
such New Proposal. If no such notice is received by Seller within such period
then Buyer shall be deemed to have approved any such New Proposal. Seller shall
have the right to execute lease documents evidencing an Existing Proposal or a
New Proposal approved or deemed approved by Buyer as provided in this Agreement.
(f) Terminate, on or prior to the Closing Date, all Service Contracts
other than the Elevator Contract and the Lobby Contract.
(g) Terminate, on or prior to the Closing Date, the existing management
agreement for the Property with West World Management, Inc.
(h) Terminate, on or prior to the Closing Date, the existing lease for
the management office for the Property with West World Management, Inc.
(i) Provide Buyer with copies of (a) any default letters sent to or from
Tenants and, (b) any copies of correspondence received from a Tenant that it is
"going dark" or seeking to re-negotiate its lease and (c) notices of bankruptcy
filings received with respect to any Tenant.
(j) Perform Seller's material obligations under the Tenant Leases, in
accordance with seller' prior operations.
14
(k) Provide to Buyer copies of current rent rolls promptly following
receipt by Seller, in the form provided by Seller's property manager.
15. USE OF PROPERTY: Seller has not claimed the benefit of laws permitting
a special use valuation for the purposes of payment of ad valorem taxes on the
Property. If a previous owner claimed such benefit and, after the purchase is
closed, Buyer changes the use of the Property from its present use and the same
results in the assessment of additional taxes, such additional taxes will be the
obligation of the Buyer, notwithstanding that some or all of such additional
taxes may relate back to the period prior to Closing.
16. CONDEMNATION: If prior to the Closing Date condemnation proceedings are
commenced against any material portion of the Property, then this Contract
shall terminate and the Xxxxxxx Money shall be refunded to Buyer. A "material
portion of the Property" as used herein shall mean at least ten percent (10%) of
the square footage of the structural Improvements or which would permit the
termination of any Tenant Lease. If prior to the Closing Date condemnation
proceedings are commenced against less than a material portion of the Property,
then this Contract shall not terminate, but at Closing Seller shall assign to
Buyer any condemnation award and the Sales Price shall not be reduced.
17. DAMAGE TO PROPERTY : Seller agrees to give Buyer prompt notice of any fire
or other casualty affecting the Land, the Improvements or the Personal Property
between the Effective Date and the Closing.
(a) If prior to the Closing either (i) the Property is damaged by an
uninsured casualty and Seller is unwilling OF unable to repair such damage on or
prior to the Closing; or (ii) the Property is damaged by fire or other casualty
that would cost TWO-HUNDRED FIFTY-THOUSAND AND NO/100 DOLLARS ($250,000.00) or
more to repair, then in any such event, either Buyer or Seller may, at its
option, elect to terminate this Contract by written notice to the other party
within twenty (20) days after the date of Sellers' notice to Buyer of the
casualty or at the Closing, whichever is earlier, in which case the Xxxxxxx
Money shall be refunded to Buyer, and neither party shall have any further
rights or obligations hereunder, ether than as set forth herein with respect to
rights and obligations that survive termination. If neither Buyer not Seller
timely makes its election to terminate this Contract, then the Closing shall
take place as provided herein without reduction of the Sales Price (except for
the amount equal to Seller's deductible under its insurance policies), and there
shall be assigned to Buyer at the Closing all interest of Seller in and to any
casualty insurance proceeds, including, to the extent assignable the proceeds of
any business interruption or loss of rental insurance.
(b) If prior to the Closing there shall occur damage to the Property
caused by fire or other casualty that would cost less TWO-HUNDRED FIFTY-THOUSAND
AND NO/100 DOLLARS ($250,000.00) to repair, then in any such event, Buyer
shall have no right to terminate this Contract, but there shall be assigned to
Buyer at Closing all interest of Seller in and to any casualty insurance
proceeds that may be payable to Seller on account of any such occurrence,
including, to the extent assignable the proceeds of any business interruption or
loss of rental insurance and the Sales Price shall be reduced by an amount equal
to Seller's deductible under its insurance policies.
(c) Seller and Buyer both agree to use the Seller's insurance adjuster's
assessment to determine the amount of damages.
18. REPRESENTATIONS AND WARRANTIES OF BUYER: Buyer represents and warrants to
Seller, which representations and warranties shall be deemed made by Buyer to
Seller as of the Effective Date and also as of the Closing Date:
15
(a) Buyer has the full right, power and authority to purchase the
Property as provided in this Contract and to carry out Buyer's obligations
hereunder, and that all requisite action necessary to authorize Buyer to enter
into this Contract and to carry out Buyer's obligations hereunder has been
taken.
(b) Buyer is not a person or entity described by Section 1 of the
Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With
Persons Who commit, Threaten to Commit, or Support Terrorism, 66 Fed Reg, 49,079
(September 24, 2001), and to Buyer's knowledge does not engage in any dealings
or transactions, and is not otherwise associated, with any such persons or
entities.
Notwithstanding anything herein to the contrary, any breach by Buyer of
any of the foregoing representations or warranties shall constitute a default by
Buyer hereunder, and Seller may thereupon, at its option, terminate this
Contract by giving written notice thereof, in which event the Xxxxxxx Money
shall be paid to Seller as liquidated damages, and neither Buyer nor Seller
stall have any further rights or liabilities hereunder, except as otherwise
provided herein.
19. MISCELLANEOUS:
(a) All notices, demands, and requests and other communications required
or permitted hereunder shall be in writing and shall be deemed to be delivered
when actually received by telecopy or personal delivery or, if earlier and
regardless whether actually received or not, (i) upon deposit with a nationally
recognized overnight courier for next business day delivery, charges prepaid, or
(ii) upon three (3) business days following deposit in a regularly maintained
receptacle for the United States mail, registered or certified, postage prepaid,
in either such event to be addressed to the addressee as follows:
If to Seller:
Xxxxxxx X.X. Xxxxxxxx
President
West World Holding, Inc.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxxx
West World Management, Inc.
0000 X. Xxxxx Xx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000 Ext. 101
Facsimile: (000) 000-0000
with an additional copy to:
Xxxxxx and Xxxxx, L.L.P.
0000 X. Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
16
Phone: (000)000-0000
Facsimile: (000)000-0000
If to Buyer;
Xxxxxxx Xxxxxx and Xxxx Xxxxxxxx
Triple Net Properties
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
with a copy to;
Xxxxx X. Xxxxxx, Esquire
Xxxxxxxxx Xxxxxxxxx
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(b) This Contract shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created hereunder
are performable in Dallas County, Dallas, Texas.
(c) This Contract shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
(d) In case any one or more of the provisions contained in this Contract
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision hereof, and this Contract shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Furthermore, in lieu of any such invalid, illegal or unenforceable provision,
there shall be automatically added to this Contract a provision as similar to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
(e) This Contract constitutes the sole and only agreement of the parties
hereto with respect to the subject matter hereof and supersedes any prior
understandings or written or oral agreements between the parties respecting the
subject matter hereof and cannot be changed except by their written consent.
(f) Time is of the essence with this Contract.
(g) Words of any gender used in this Contract shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise.
17
(h) In accordance with the requirements of the Texas Real Estate License
Act, Buyer is hereby advised by Broker that (i) Buyer should be furnished with
or obtain a policy of title insurance or have the abstract covering the Property
examined by any attorney of its own selection, and (ii) unless otherwise agreed
to in writing by the parties hereto, Broker is being paid by Seller and is
representing Seller in this transaction.
(i) The covenants, indemnification obligations and the waiver and
release by Buyer Set forth in Sections 5.(b), 10.(b) and 11, and the covenants
and indemnification obligations of Buyer and Seller set forth in Sections 4.(e),
4.(f) and 9, shall survive consummation of Closing and any termination or
cancellation of this Contract, notwithstanding any contrary provisions hereof.
(j) The parties may execute this Contract in one or more identical
counterparts, all of which when taken together will constitute one and the same
instrument.
(k) The parties hereto acknowledge that the parties and their respective
counsel have each reviewed and revised this Contract, and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Contract
or any amendments or exhibits hereto.
(l) "Business Day" shall mean a date which is not a Saturday, Sunday or
holiday observed by federally chartered banks in the State of Texas, whenever
any determination is to be made or action to be taken on a date specified in
this Contract if such date falls upon a date which is not a Business Day, the
date for such determination or action shall be extended to the first Business
Day immediately thereafter.
20. ASSIGNMENT: Buyer may not assign this Contract without Seller's prior
written consent, such consent to be given or denied in Seller's sole and
absolute discretion; provided no consent of Seller Shall be required in
connection with the assignment of the Contract at least ten (10) days prior to
the Closing Date to any entity controlled by or managed by Triple Net Properties
LLC. In event of any assignment of this Contract, Buyer shall promptly provide a
copy of such assignment to Seller.
21. NONREFUNDABLE CONSIDERATION: Contemporaneously with the execution and
delivery of this Contract, Buyer has delivered to Seller and Seller hereby
acknowledges the receipt of a check in the amount of One Hundred Dollars
($100.00) ("Independent Contract Consideration"), which amount the parties
bargained for and agreed to as consideration for Buyer's exclusive right to
inspect and purchase the Property pursuant to this Contract and for Seller's
execution, delivery and performance of this Contract. The Independent Contract
Consideration is in addition to and independent of any other consideration or
payment provided in this Contract, is nonrefundable, and it is fully earned and
shall be retained by Seller notwithstanding any other provision of this
Contract.
22. NOTICE TO TENANTS: Buyer and Seller shall immediately after Closing
deliver to each tenant of the Property a signed statement acknowledging that
Buyer is the new owner of the Property and that Buyer is responsible for all
such tenants' security deposits providing an exact dollar amount of each
security deposit. Buyer also hereby expressly agrees, confirms and acknowledges
that Buyer shall be liable for (and Buyer hereby expressly assumes all liability
for) all such security deposits that are transferred from Seller to Buyer
regardless of whether notice is given to the tenants of the Property in
accordance with the provisions of this Section 22. The provisions of this
Section 22 shall survive the Closing.
23. WAIVER OF CONSUMER RIGHTS. BUYER, AFTER CONSULTATION WITH AN ATTORNEY OF
ITS OWN SELECTION (WHICH COUNSEL WAS NOT DIRECTLY OR INDIRECTLY IDENTIFIED,
SUGGESTED OR SELECTED BY SELLER OR ANY AGENT OF SELLER) HEREBY VOLUNTARILY
WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT
(SECTION 17.41, ET SEQ., BUSINESS AND COMMERCE CODE), A LAW THAT GIVES CONSUMERS
SPECIAL
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RIGHTS AND PROTECTIONS. BUYER HEREBY ACKNOWLEDGES TO SELLER THAT BUYER AND
SELLER ARE NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION.
24. MODERNIZATION OF THE ELEVATORS AND LOBBY.
Seller has advised the Buyer that the FDIC has been advised of and expects
the lobby of the Improvements to be modernized in accordance with the Lobby
Plans. In addition, Seller and Buyer have agreed to the sharing of the cost of
the Elevator Contract. With regard to the Lobby Plans and the Elevator Contract,
the Seller and Buyer hereby agree as follows:
(a) During the term of this Contract. Seller will diligently pursue the
completion of the modernization work described in the Elevator Contract
("Elevator Work") in accordance with the terms of the Elevator Contract. The
maintenance portion of the Elevator Contract will be prorated at the Closing.
(b) Seller will responsible for the initial $268,369.19 of the costs and
expenses of the Elevator Work ("Seller's Share"). All costs and expenses of the
Elevator Work in excess of Seller's Share shall be paid by Buyer. If at Closing
Seller has paid more than Seller's Share pursuant to the terms of the Elevator
Contract Buyer shall, at Closing, reimburse to Seller the amount by which such
payments by Seller exceed the Seller's Share. If at Closing Seller has paid less
that Seller's Share pursuant to the terms of the Elevator Contract, Seller
shall, at Closing, provide to Buyer a credit against the Sales Price in an
amount equal to the sum of (i) Seller's Share, minus (ii) payments made by
Seller on or prior to the Closing Date pursuant to the terms of the Elevator
Contract.
(c) Following the execution of the Lobby Contract during the term of
this Contract, Seller will diligently pursue the completion of the modernization
work described in the Lobby Contract ("Lobby Work") in accordance with the terms
of the Lobby Contract.
(d) All costs and expenses of the Lobby Work shall be paid by Buyer. If
at Closing Seller has paid for any of the Lobby Work pursuant to the terms of
the Lobby Contract, Buyer shall, at Closing, reimburse to Seller any sums paid
by Seller pursuant to the terms of the Lobby Contract Following Closing, Buyer
shall diligently and continuously pursue completion of the Lobby Work in
accordance with the terms of the Lobby Contract.
(e) At Closing, Buyer and Seller shall enter into a separate agreement
("Refurbishment Agreement") setting forth the terms and provisions of this
Section 24.
(f) The terms and provisions of this Section 24 shall survive Closing.
25. BUYER'S CONDITIONS PRECEDENT.
If any of the following conditions precedent to Buyer's obligations under
this Contract is not satisfied, then Buyer may, at its option, waive such
condition and close this transaction, or, as Buyer's sole and exclusive remedy,
terminate this Contract, in which event the Xxxxxxx Money shall be returned to
Buyer, and neither party shall have any further rights or obligations hereunder
except other than as set forth herein with respect to rights or obligations
which survive termination. The following shall be additional condition
precedent to Buyer's obligations hereunder:
(a) Each of the representations and warranties made by Seller in Section
13 shall be true and correct in all material respects when made and as of the
Closing Date.
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(b) Seller shall have performed or complied in all material respects
with each obligation and covenant required by the Tenant Leases and applicable
laws and by this Contract to be performed or compelled with by Seller on or
before the Closing.
(c) Title to the Property and the other assets to be transferred
hereunder shall be delivered to Buyer in the manner required under Section 6.
If any of the above described conditions precedent to Buyer's obligations
hereunder is not satisfied Buyer may, at its option, (A) waive such condition
and close this transaction with no reduction in the Sales Price, or (B)
terminate this Contract by notice in writing to Seller in which event the
Xxxxxxx Money shall be returned to Buyer and neither party shall have any
further rights or obligations hereunder except other than as set forth herein
with respect to rights or obligations which survive termination.
26. IMPROVEMENT DISTRICT. Seller has advised Buyer that the Property is
located within the Downtown Dallas improvement District which is a Public
Improvement District.
27. EFFECTIVE DATE: The "Effective Date" of this Contract shall be the date an
original of this Contract (or original counterparts of this Contract) are
executed by both Seller and Buyer.
EXECUTED in multiple originals effective as of March 1st, 2004. (Fill in
the later of the dates when this Contract is executed by Seller and Buyer.)
SELLER:
1910 PP LIMITED PARTNERSHIP,
an Texas limited partnership
By: 0000 Xxxxxxx Xxxxx, Inc.
a Delaware corporation, its general
partner
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
Date signed: March 1st, 2004
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BUYER:
TRIPLE NET PROPERTIES, LLC, a Virginia
limited liability company
By:/s/ Xxxx Xxxxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Date signed: 2/25, 2004
BROKER:
The Broker executes this Contract for the
sole purpose of acknowledging and
consenting to Section 9. The Broker shall
not be a necessary party to any Amendment
of this Contract.
WICKER & ASSOCIATES
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Date signed: ____________________________
TITLE COMPANY:
Receipt of $250,000.00 Initial Xxxxxxx
Money is acknowledged
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title : Escrow officer
EXHIBITS:
Exhibit A - Property Description
Exhibit B - Special Warranty Deed
Exhibit C - Xxxx of Sale, Assignment and Assumption Agreement
Exhibit D - Assignment of Lease and Assumption Agreement
Exhibit E - Non-Foreign Affidavit
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