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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and between
CMF CAPITAL COMPANY L.L.C., a Delaware limited liability company ("Seller") and
T REIT L.P., a Virginia limited partnership, ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
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1.1 Purchase and Sale. Subject to the terms and conditions of this
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Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "Property"):
(a) Land. That certain tract of land commonly known as Northstar
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Crossing Shopping Center, Garland, Dallas County, Texas; being more
particularly described on Exhibit A attached hereto and made a part hereof
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(the "Land" but sometimes referred to herein as the "Shopping Center").
(b) Easements. All easements, if any, benefitting the Land or the
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Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances pertaining
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to the Land, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities (the
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"Improvements") in and on the Land.
(e) Leases. All leases (the "Leases") of space in the Property,
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concession leases, and all tenant security deposits held by Seller on the
Closing Date (as hereinafter defined).
(f) Tangible Personal Property. All appliances, fixtures, equipment,
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machinery, furniture, carpet, drapes and other personal property, if any,
owned by Seller and located on or about the Land and the Improvements (the
"Tangible Persona! Property").
(g) Contracts. To the extent assignable without the consent of third
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parties, the Contracts (as hereinafter defined).
(h) Intangible Property. To the extent assignable without the consent
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of third parties, all intangible property (the "Intangible Property"), if
any, owned by Seller and pertaining to the Land, the Improvements, or the
Tangible Personal Property including, without limitation, the name
PURCHASE AND SALE AGREEMENT - Page 1
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of the Shopping Center, transferable utility contracts, transferable
telephone exchange numbers, plans and specifications, engineering plans,
studies, floor plans, and landscape plans, warranties, licenses and
permits.
1.2 Independent Consideration. Upon execution of this Agreement, Purchaser
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has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND NO/100
DOLLARS ($50.00) (the "Independent Consideration"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
2.
PURCHASE PRICE
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2.1 Purchase Price. The purchase price (the "Purchase Price") for the
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Property shall be THREE MILLION NINE HUNDRED THIRTY THOUSAND AND NO/100 DOLLARS
($3,930,000.00) and shall be paid in cash by Purchaser to Seller at the Closing
(as defined herein) as follows:
(a) A portion of the Purchase Price shall be satisfied by Purchaser's
execution and delivery to Fair Oak, LLC, a Delaware limited liability
company ("Lender") of a promissory note (the "Note") in the form attached
hereto as Exhibit G, in the original principal sum of TWO MILLION SIX
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HUNDRED NINETY-FIVE THOUSAND AND NO/100 ($2,695,000.00) payable to the
order of Lender. The payment and performance by Purchaser under the Note
shall be secured by (i) a First Deed of Trust and Security Agreement (the
"Mortgage") in the form attached hereto as Exhibit H, executed by Purchaser
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for the benefit of Lender, covering the Property; (ii) an Assignment of
Rents and Leases (the "Rental Assignment") in the form attached hereto as
Exhibit I; (iii) UCC-I Financing Statements (the "Financing Statements") in
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the form attached hereto as Exhibit J; (iv) a Hazardous Substances
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Indemnity Agreement (the "Indemnity Agreement") in the form attached hereto
as Exhibit K; (v) a Notice and Agreement (the "Notice and Agreement") in
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the form attached hereto as Exhibit L; (vi) an Unconditional Guaranty of
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Payment and Performance (the "Guaranty") in the form attached hereto as
Exhibit M and (vii) and the form of Legal Opinion of Counsel (the "Legal
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Opinion") attached hereto as Exhibit R. The Note, the Mortgage, the Rental
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Assignment, the Financing Statements, the Indemnity Agreement, the Notice
and Agreement, the Guaranty and the Legal Opinion are hereinafter
collectively referred to as the "Purchase Money Loan Documents"; and
(b) The balance of the Purchase Price, in the amount of ONE MILLION
TWO HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($1,235,000.00), shall
be paid in cash at the Closing by wire transfer of immediately available
federal funds in accordance with wire transfer instructions to be provided
by Seller.
PURCHASE AND SALE AGREEMENT - Page 2
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3.
EARNEST MONEY
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3.1 Delivery of Agreement. Purchaser agrees to promptly deliver or cause
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the Title Company (as defined in Section 6.1) to deliver written acknowledgment
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that the executed copy of this Agreement has been received by the Title Company
pursuant to the terms of this Agreement.
4.
CONDITIONS TO CLOSING
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4.1 Seller's Obligations. Seller shall deliver to Purchaser (at Seller's
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expense), within ten (10) days after the Effective Date (as defined in Section
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10.13) hereof, the following:
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(a) Title Commitment. Commitment for Owner's Policy of Title
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Insurance (the "Title Commitment") with respect to the Property, issued by
the Title Company, and legible copies of any restrictive covenants,
easements, and other items listed as title exceptions therein.
(b) Survey. A current as-built survey of the Property (the "Survey")
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showing the location of all of the Improvements, prepared by a licensed
surveyor.
(c) Contracts. Copies of all contracts pertaining to the Property,
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and not cancelable on thirty (30) days notice without penalty or premium
(the "Contracts"), including, but not limited to, management contracts,
service contracts, equipment leases and maintenance contracts, to the
extent in the possession of or in control of GE Capital Realty Group, Inc.
("GECRG").
Seller's failure to deliver to Purchaser items (a) through (c) above within ten
(10) days after the Effective Date shall not result in the extension of the
Closing Date (as such term is defined in Section 6.1).
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4.1.1 Intentionally Deleted.
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4.1.2 Title Commitment and Survey.
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(a) In the event (i) the Survey shows any easement, right-of-way,
encroachment, conflict, protrusion or other matter affecting the Property
that is unacceptable to Purchaser, or (ii) any exceptions appear in the
Title Commitment (other than the standard printed exceptions set forth in
the standard Texas form of Commitment for Title Insurance or the exceptions
listed on Exhibit P attached hereto and made a part hereof), that are
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unacceptable to Purchaser, Purchaser shall within five (5) business days
after receipt of the Survey, the Title Commitment and copies of all
documents referred to as exceptions in the Title Commitment, notify Seller
in writing of such facts and the reasons therefor ("Purchaser's
Objections"). Upon the expiration of said five (5) business day period,
except for Purchaser's Objections if same are timely raised, Purchaser shall
be deemed to have accepted the form and substance of the Survey, all matters
shown thereon, all exceptions to Title Commitment and other items shown
thereon. Notwithstanding anything to the contrary contained herein, Seller
shall have no obligations to take any steps or bring any action or
proceeding or otherwise to incur any effort or expense whatsoever to
eliminate or modify any of the Purchaser's Objections. In the event Seller
is unable or unwilling to eliminate or modify all of Purchaser's Objections
to the reasonable satisfaction of Purchaser, Purchaser may (as its sole and
exclusive
PURCHASE AND SALE AGREEMENT - Page 3
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remedy) terminate this Agreement by delivering notice thereof in writing to
Seller by the earlier to occur of (i) the Closing Date or (ii) five (5)
days after Seller's written notice to Purchaser of Seller's intent to not
cure one or more of such Purchaser's Objections; in which event neither
party shall have any obligations hereunder other than those obligations
which expressly survive the termination of this Agreement (the "Surviving
Obligations").
(b) The term "Permitted Encumbrances" as used herein includes: (i)
any easement, right of way, encroachment, conflict, discrepancy,
overlapping of improvements, protrusion, lien, encumbrance, restriction,
condition, covenant, exception or other matter with respect to the Property
that is reflected or addressed on the Survey or the Title Commitment to
which Purchaser fails to timely object pursuant to Section 4.1.2(a) of this
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Agreement; (ii) any Purchaser's Objection that remains uncured, for
whatever reason, at the earlier to occur of (A) Closing hereunder or (B)
five (5) business days after Seller notifies Purchaser that Seller is
unwilling or unable to cure or modify Purchaser's Objections to the
reasonable satisfaction of Purchaser; and (iii) the rights and interests of
parties claiming under the Leases. The term "Permitted Encumbrances" shall
include the standard printed exceptions set forth in the standard Texas
form of Commitment for Title Insurance and the exceptions listed on Exhibit
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P.
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4.1.3 Limitations of Seller's Obligations. Notwithstanding anything
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contained herein to the contrary, Seller shall have no obligation to take any
steps, bring any action or proceeding or incur any effort or expense whatsoever
to eliminate, modify or cure any objection Purchaser may have pursuant to
Section 4.1.2 or Section 4.2.
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4.2 Inspection. Purchaser may inspect, test, and survey the Property at
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any reasonable time during business hours at any time during the term of this
Agreement. Notwithstanding the foregoing, Purchaser must obtain Seller's prior
written approval of the scope and method of any environmental testing or
investigation (other than a Phase I environmental inspection) and any inspection
which would materially alter the physical condition of the Property, prior to
Purchaser's commencement of such inspections or testing. In any event, Seller
and its representatives, agents, and/or contractors shall have the right to be
present during any such testing, investigation, or inspection. Purchaser's right
of inspection set forth herein shall not give Purchaser the right to terminate
this Agreement; provided, however, solely in the event Purchaser's Phase I
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environmental inspection conducted on the Property reveals an environmental
condition having a material, adverse impact thereon and Purchaser delivers to
Seller the results of such inspection within five (5) days of Purchaser's
receipt of same, Purchaser shall have the right to terminate this Agreement upon
written notice delivered to Seller no later than ten (10) days following
Purchaser's receipt of such Phase I environmental assessment. All information
provided by Seller to Purchaser or obtained by Purchaser relating to the
Property in the course of Purchaser's review, including, without limitation, any
environmental assessment or audit (collectively, the "Reports") shall be treated
as confidential information by Purchaser and Purchaser shall instruct all of its
employees, agents, representatives and contractors as to the confidentiality of
all such information. Purchaser shall restore the Property to its condition
existing immediately prior to Purchaser's inspection thereof, and Purchaser
shall be liable for all damage or injury to any person or property resulting
from, relating to or arising out of any such inspection, whether occasioned by
the acts of Purchaser or any of its employees, agents, representatives or
contractors, and Purchaser shall indemnify and hold harmless Seller and its
agents, employees, officers, directors, affiliates and asset managers from any
liability resulting therefrom. This indemnification by Purchaser shall survive
the Closing or the termination of this Agreement, as applicable. Purchaser
agrees to deliver to Seller copies of all
PURCHASE AND SALE AGREEMENT - Page 4
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Reports at the time the notice to terminate this Agreement is given and upon
payment by Seller to Purchaser for the actual cost of the Reports. The
obligations to deliver the Reports shall survive the termination of this
Agreement.
4.3 Purchaser's Representations and Warranties. Purchaser represents and
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warrants to Seller that (a) Purchaser is a limited partnership, duly organized
and in good standing under the laws of the State of Virginia, is qualified to do
business in the State of Texas, and has the power to enter into this Agreement
and to execute and deliver this Agreement and to perform all duties and
obligations imposed upon it hereunder, and Purchaser has obtained all necessary
authorizations required in connection with the execution, delivery and
performance contemplated by this Agreement and has obtained the consent of all
entities and parties necessary to bind Purchaser to this Agreement, and (b)
neither the execution nor the delivery of this Agreement, nor the consummation
of the purchase and sale contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement conflict with or will
result in the breach of any of the terms, conditions, or provisions of any
agreement or instrument to which Purchaser, or any partner or related entity or
affiliate of Purchaser, is a party or by which Purchaser, any partner or related
entity or affiliate of Purchaser, or any of Purchaser's assets is bound, and (c)
neither Purchaser nor any partner, related entity or affiliate of Purchaser is
in any way affiliated with GE Capital Realty Group, Inc., General Electric
Capital Corporation, General Electric Realty Advisors, Inc., General Electric
Company or any affiliate of General Electric Company, and (d) that, with respect
to each source of funds to be used by it to purchase the Property (respectively,
the "Source"), at least one of the following statements shall be accurate as of
the Closing Date: (i) the Source does not include the assets of (A) an "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which is subject to Title I of
ERISA, or (B) a "plan" as defined in Section 4975(a) of the Internal Revenue
Code of 1986, as amended ("Code"), or (ii) the Source includes the assets of (A)
an "employee benefit plan" as defined in Section 3(3) of ERISA or (B) a "plan"
as defined in section 4975 of the Code (each of which has been identified to the
Seller in writing pursuant to this Section 4.3 at least ten (10) business days
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prior to the Closing Date), but the use of such Source to purchase the Property
will not result in a nonexempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The Purchaser's representations and warranties set
forth in this Section 4.3 shall survive the Closing or termination of this
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Agreement. Purchaser's representations and warranties contained herein must be
true and correct through the Closing Date, and Purchaser's failure to notify
Seller prior to the Closing Date of any inaccuracies shall be a default by
Purchaser under this Agreement.
4.4 Seller's Representations and Warranties. Seller represents and
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warrants to Purchaser that (a) Seller has the full company right, power, and
authority, without the joinder of any other person or entity, to enter into,
execute and deliver this Agreement, and to perform all duties and obligations
imposed on Seller under this Agreement, (b) neither the execution nor the
delivery of this Agreement, nor the consummation of the purchase and sale
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement conflict with or will result in the breach of any
of the terms, conditions, or provisions of any agreement or instrument to which
Seller is a party or by which Seller or any of Seller's assets is bound, (c) to
Seller's knowledge (as hereinafter defined), Seller has not been served with
process in any litigation affecting the Property which would adversely affect
Seller's ability to perform its obligations under this Agreement, (d) to
Seller's knowledge (as hereinafter defined), Seller has not received any written
notices of zoning change or special assessments with respect to the Property,
(e) to Seller's knowledge (as hereinafter defined), Exhibit N contains a
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complete list of all Contracts entered into by Seller or its authorized agents
affecting the Property including all amendments and modifications thereto, (f)
to Seller's
PURCHASE AND SALE AGREEMENT - Page 5
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knowledge, Exhibit O contains a complete list of all Leases affecting the
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Property and all amendments and modifications thereto and (g) to Seller's
knowledge the Rent Roll attached as Exhibit P is true and correct.
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4.5 Knowledge. As used herein, the term "to Seller's knowledge" shall mean
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only the "current actual knowledge without inquiry" (as defined below) of the
following designee of GECRG: Mark Williams. As used herein, the term "current
actual knowledge without inquiry" shall mean only the actual, current, conscious
and not constructive, imputed or implied knowledge of such designee without
having made a review of the files or other inquiry. Anything herein to the
contrary notwithstanding, such designee shall not have any personal liability or
obligation whatsoever with respect to any of the matters set forth in this
Agreement or any of the Seller's representation herein being or becoming untrue,
inaccurate or incomplete in any respect.
4.6 Survival: Liability. Any and all of the representations and warranties
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of Seller as contained in this Agreement shall be void and of no further force
or effect whatsoever from and after one (1) year from the Closing Date.
Consequently, Purchaser stipulates and agrees that from and after such one (1)
year period, it is entitled to and agrees to claim no damages of any kind with
respect to any alleged breach and/or violation of any of such representations
and/or warranties of Seller. Furthermore, if Purchaser becomes aware prior to
Closing of any breach and/or violation of any of Seller's representations or
warranties as set forth herein, Purchaser shall give seller written notice of
any such breach or violation, and during the fifteen (15) day period after such
notice, Seller shall have the right, but not the obligation, to cure any such
breach or violation to the reasonable satisfaction of Purchaser, and the Closing
Date shall be extended for such fifteen (15) day period. In the event Purchaser
becomes aware of any breach and/or violation of any Seller's representations and
warranties prior to Closing and (a) Purchaser fails to give Seller notice
thereof as required hereby or (b) following notice thereof, Seller fails or is
unable to cure any such breach or violation to the reasonable satisfaction of
Purchaser, Purchaser's sole remedy for any such breach or violation shall be to
terminate this Agreement by delivering written notice of such termination to
Seller on or before the Closing Date and neither party shall have any obligation
hereunder, except the Surviving Obligations. Anything herein to the contrary
notwithstanding, if Purchaser timely commences any action(s) to enforce any
alleged breach and/or violation of any of the representations and/or warranties
of Seller as set forth in this Agreement, then Purchaser's sole remedy shall be
to seek recovery of its actual damages (but not special, speculative, punitive
or other damages) and the amount of such damages, in the aggregate (with respect
to any and all such breaches and/or violations) shall not exceed One Hundred
Thousand and No/100 Dollars ($100,000.00), which sum shall include all of
Purchaser's attorney's fees, costs, expert witness fees and court costs.
4.7 Tenant Estoppel Certificates. Seller agrees to submit or cause its
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property manager to submit to each tenant or lessee under a Lease a request for
such tenant or lessee to execute and deliver a tenant estoppel certificate to
Purchaser with respect to its Lease in the form attached hereto as Exhibit D.
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Seller shall have no obligation or responsibility with respect to any tenant
estoppel certificate other than to submit or cause to be submitted such
certificate to the tenant or lessee and request the execution and return
thereof; provided, however, Seller agrees to make diligent efforts to cause its
property manager to obtain the return of executed estoppel certificates from the
Tenants prior to Closing.
4.8 Defective Condition Extension; Termination. The obligations of Seller
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hereunder are subject to and contingent upon the following:
PURCHASE AND SALE AGREEMENT - Page 6
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In the event that subsequent to the execution of this Agreement Seller
obtains knowledge of, or Purchaser's inspection of the Property reveals,
either (i) the presence of any Hazardous Materials (as defined in Section
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5.2 hereof) or the violation or potential violation of any Environmental
---
Requirements (as defined in Section 5.3 hereof) or (ii) any structural or
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other defect in the Improvements, whether or not in violation of any
applicable law, ordinance, code, regulation or decree of any governmental
authority having jurisdiction over the Property (collectively, a "Defective
Condition"), which Seller, in its sole judgment, determines could
constitute a potential liability to Seller after the Closing or should be
remedied prior to the sale of the Property, Seller shall have the right
upon written notice to Purchaser on or before the scheduled Closing Date
either (i) to extend the Closing Date for the period of time necessary to
complete such remediation at Seller's sole cost and expense, or (ii) to
terminate this Agreement upon written notice to Purchaser and neither party
shall have any further right or obligation hereunder other than the
Surviving Obligations. The terms of this Section 4.8 are solely for the
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benefit of Seller and Purchaser shall have no additional right or remedy
hereunder as a result of the exercise by Seller of its rights under this
Section.
4.9 Intentionally Deleted.
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5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
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ACCEPTANCE OF PROPERTY
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5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
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MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED, AS
DEFINED BELOW), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS
OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO
MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE,
ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE
REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH
REPRESENTATION, WARRANTY,
PURCHASE AND SALE AGREEMENT - Page 7
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AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON
BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET
FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER AND AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE
ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY
RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO
ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH
INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS.
IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. EXCEPT IN THE EVENT OF SELLER'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT,
DEFEND, SAVE AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS,
DUTIES, OBLIGATIONS, LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION,
DAMAGES, LOSSES, FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS'
FEES AND EXPENSES AND COURT COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH
OR ARISING OUT OF PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION,
MAINTENANCE AND MANAGEMENT OF THE PROPERTY. THE PROVISIONS OF THIS SECTION 5
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SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
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which is or contains (i) any "hazardous substance" as now or hereafter defined
in (S) 101(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amend (42 U.S.C. (S) 9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
(S) 6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as hereinafter defined)
or the common law, or any other applicable laws relating to the Property.
Hazardous Materials shall include, without limitation, any substance, the
presence of which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent property;
or (C) which, if it emanated or migrated from the Property, could constitute a
trespass.
PURCHASE AND SALE AGREEMENT - Page 8
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5.3 Environmental Requirements. "Environmental Requirements" shall mean
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all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
6.
CLOSING
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6.1 Closing. The Closing (the "Closing") shall be held at the offices of
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Commonwealth Land Title Company (the "Title Company") at 1700 Pacific Avenue,
Suite 4700, Dallas, Texas 75201, Attention: Ms. Amanda Johnson, at a date
designated by Seller and Purchaser on or before two (2) calendar days after the
Effective Date (the "Closing Date"), but in no event shall the Closing Date be
later than October 17, 2000, unless the parties mutually agree in writing upon
another place, time or date.
6.2 Possession. Possession (including keys) of the Property shall be
----------
delivered to Purchaser at the Closing, subject to the Permitted Encumbrances.
6.3 Proration. At Closing, Seller shall credit Purchaser with $757,040.24
---------
plus a 4% supervision fee of $30,281.60 as full payment for Gold's Gym's tenant
improvement allowance. Additionally, except for all leasing commissions and
tenant improvement costs associated with the Gold's Gym lease and other existing
Leases for existing terms under the existing Lease documents which shall be paid
by Seller, all rents, other amounts payable by the tenants under the Leases,
income, utilities and all other operating expenses with respect to the Property
for the month in which the Closing occurs, and real estate and personal property
taxes and other assessments with respect to the Property for the year in which
the Closing occurs, shall be prorated to the Closing Date.
(a) If the Closing shall occur before rents and all other amounts
payable by the tenants under the Leases and all other income from the
Property have actually been paid for the month in which the Closing occurs,
the apportionment of such rents and other amounts and other income shall be
upon the basis of such rents, other amounts and other income actually
collected and received by Seller. Subsequent to the Closing, if any such
rents and other income are actually collected and received by Purchaser,
all such amounts shall first be applied to post-closing rents due to
Purchaser which are past due and the balance shall be immediately paid by
Purchaser to Seller. Purchaser shall make a good faith effort and attempt
for a period not to extend beyond four (4) months after the Closing Date to
collect any such rents and other amounts and other income not apportioned
at the Closing for the benefit of Seller, however, Purchaser shall not be
required to expend any funds or institute any litigation in its collection
efforts. Nothing in this paragraph shall restrict Seller's right to collect
delinquent rents directly from a tenant by any legal means.
(b) Taxes will be prorated on an accrual basis. If the Closing shall
occur before the tax rate or the assessed valuation of the Property is
fixed for the then current year, the apportionment of taxes shall be upon
the basis of the tax rate for the preceding year applied to the latest
assessed valuation. Subsequent to the Closing, when the tax rate and the
assessed valuation of the Property
PURCHASE AND SALE AGREEMENT - Page 9
<PAGE>
is fixed for the year in which the Closing occurs, the parties agree to
adjust the proration of taxes and, if necessary, to refund or repay such
sums as shall be necessary to effect such adjustment. If the Property is
not assessed as a separate parcel for tax or assessment purposes, then such
taxes and assessments attributable to the Property shall be determined by
Purchaser and Seller. In the event the Property has been assessed for
property tax purposes at such rates as could result in "roll-back" taxes
upon changes in land usage or ownership of the Property, Seller agrees to
pay all such taxes.
(c) If the Closing shall occur before the actual amount of utilities
and all other operating expenses with respect to the Property for the month
in which the Closing occurs are determined, the apportionment of such
utilities and other operating expenses shall be upon the basis of an
estimate by Seller of such utilities and other operating expenses for such
month. Subsequent to the Closing, when the actual amount of such utilities
and other operating expenses with respect to the Property for the month in
which the Closing occurs are determined, the parties agree to adjust the
proration of such utilities and other operating expenses and, if necessary,
to refund or repay such sums as shall be necessary to effect such
adjustment.
(d) Purchaser and Seller acknowledge and agree that certain
additional rents constituting reimbursement for percentage rent payments,
common area maintenance charges, property taxes and assessments and the
like (collectively, "Additional Rents") which Seller has heretofore
advanced have not yet been billed to the Tenants by Seller (collectively,
"Unbilled Additional Rents"). Purchaser and Seller agree that, with respect
to the Unbilled Additional Rents, Seller shall provide Purchaser following
the Closing with the data reasonably necessary for Purchaser to provide
bills to the Tenants for the Unbilled Additional Rents. In the event that
any Tenant shall, following the Closing, seek to audit or to challenge
Seller's calculation of rent or Additional Rent actually paid by such
Tenant during the period of Seller's ownership of the Property, upon the
agreement of the Tenant and Seller, or if no such agreement is reached,
upon the entering of a final, non-appealable order (or, if applicable
pursuant to the applicable lease, an arbitration or other dispute
resolution award), Seller shall reimburse such Tenant to the extent of any
over-payment of rent or Additional Rent actually received by Seller,
together with any applicable interest or other costs pursuant to a
settlement, court order or other award, and Purchaser shall use
commercially reasonable efforts to collect the amount of any under-payment
of rent or Additional Rent from such Tenant, together with any applicable
interest or other costs pursuant to a settlement, court order or other
award for the benefit of Seller.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
-----------
survive the Closing.
6.4 Closing Costs. Except as otherwise expressly provided herein, Seller
-------------
shall pay, on the Closing Date, the title insurance premium for the Owner's
Policy (as defined in Section 6.5(a)), the cost of the Survey, one-half (1/2) of
---------------
any escrow fees and other customary charges of the Title Company and Purchaser
shall pay, on the Closing Date, all recording costs, one-half (1/2) of any
escrow fees and other customary charges of the Title Company and the title
insurance premium for the Mortgagee Policy (as defined in Section 6.6 (f)).
----------------
Except as otherwise provided herein, each party shall pay its own attorneys'
fees.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
-----------------------------------
deliver to Purchaser the following:
(a) Title Policy. Owner's Policy of Title Insurance in Texas standard
------------
form (the "Owner's Policy"), naming Purchaser as insured, in the amount of
the Purchase Price, insuring that Purchaser owns good and indefeasible fee
simple title to the Property, subject only to the Permitted
PURCHASE AND SALE AGREEMENT - Page 10
<PAGE>
Encumbrances. Purchaser, at Purchaser's sole expense, shall elect to cause
the Title Company to amend the survey exception to read "any shortages in
area" and issue a Mortgagee Policy of Insurance in favor of Lender in the
amount of the Note subject to no exceptions other than the Permitted
Encumbrances."
(b) Evidence of Authority. Such organizational and authorizing
---------------------
documents of Seller as shall be reasonably required by the Title Company
to evidence Seller's authority to consummate the transactions contemplated
by this Agreement.
(c) Foreign Person. An affidavit of Seller certifying that Seller is
--------------
not a "foreign person," as defined in the federal Foreign Investment in
Real Property Tax Act of 1980, and the 1984 Tax Reform Act, as amended.
(d) Leases. The originals of all of the Leases, in the possession of
------
or control of GECRG on the Closing Date; provided, however, all security
-------- -------
deposits, if any, shall be credited to Purchaser. Seller shall have no
liability to Purchaser for any tenant security deposit not actually paid to
Seller.
(e) Contracts. The originals of all of the Contracts, guaranties and
---------
permits, if any, in the possession of or control of GECRG.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
--------------------------------------
shall deliver to Seller or Lender, as appropriate, the following:
(a) Purchase Price. The Purchase Price, as provided in Section 2.1,
-------------- -----------
by wire transfer of immediately available funds.
(b) Purchase Money Loan Documents. The Note, the Mortgage, the Rental
-----------------------------
Assignment, the Financing Statements, the Indemnity Agreement, the Notice
and Agreement, and the Guaranty, each executed and acknowledged, as
applicable by Purchaser.
(c) Post Effective Date Lease Expenses. Immediately available funds
----------------------------------
in an amount equal to costs and expenses incurred and paid by Seller under
any new lease of space in the Improvements, executed after the Effective
Date. Said costs and expenses shall include, but not be limited to, costs
incurred and paid by Seller for tenant improvements leasing commissions,
capital improvements, and reasonable attorney's fees.
(d) Evidence of Authority. Such organizational and authorizing
---------------------
documents of Purchaser as shall be reasonably required by Seller and/or the
Title Company authorizing Purchaser's acquisition of the Property pursuant
to this Agreement and the execution of this Agreement and any documents to
be executed by Purchaser at the Closing.
(e) Taxpayer I.D. Certification, in the form attached to this
Agreement as Exhibit E.
---------
(f) Mortgagee Policy of Title Insurance in Texas standard form (the
"Mortgagee Policy") naming Lender as the insured in the amount of the Note
subject to no exceptions other than the Permitted Encumbrances.
PURCHASE AND SALE AGREEMENT - Page 11
<PAGE>
6.7 Documents to be Executed by Seller and Purchaser. At the Closing,
------------------------------------------------
Seller and Purchaser shall also execute and deliver the following:
(a) Deed. Special Warranty Deed with Vendor's Lien (the "Deed")
----
conveying the Land and the Improvements to Purchaser subject to no
exceptions other than the Permitted Encumbrances, in the form attached to
this Agreement as Exhibit B.
---------
(b) Tenant Notices. Signed statements or notices to all tenants of
--------------
the Property notifying such tenants that the Property has been transferred
to Purchaser and that Purchaser is responsible for security deposits
(specifying the amounts of such deposits), and, if applicable, otherwise
complying with Section 92.105 of the Texas Property Code.
(C) Assignment and Assumption of Personal Property, Service
---------------------------------------------------------
Contracts, Warranties and Leases. Assignment in the form attached to
--------------------------------
this Agreement as Exhibit C.
---------
7.
RISK OF LOSS
------------
7.1 Condemnation. If, prior to the Closing, action is initiated to take
------------
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as provided in Sections 4.2 and 5.1 of this
-------- ------------ ---
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, or any other casualty or
cause until the Closing has been consummated. If the Shopping Center, or any
part thereof, suffers any damage in excess of $100,000.00 prior to the Closing
from fire or other casualty, which Seller, at its sole option, does not elect to
repair, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or(b) consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the proceeds of any insurance covering such
damage (less an amount equal to any expenses and costs incurred by Seller to
repair or restore the Shopping Center and any portion of such proceeds paid or
to be paid on account of the loss of rents or other income from the Shopping
Center for the period prior to and including the Closing Date, all of which
shall be payable to Seller), to the extent the amount of such insurance does not
exceed the Purchase Price, shall be assigned to Purchaser at the Closing. If the
Shopping Center, or any part thereof, suffers any damage less than $100,000.00
prior to the Closing, Purchaser agrees that it will consummate the Closing and
accept the assignment of the proceeds of any insurance covering such damage plus
an amount equal to Seller's deductible under its insurance policy and there
shall be no reduction in the Purchase Price.
PURCHASE AND SALE AGREEMENT - Page 12
<PAGE>
8.
DEFAULT
-------
8.1 Breach by Seller. Except as Purchaser's remedies may otherwise be
----------------
expressly limited by the terms of this Agreement (including, without limitation,
the terms of Section 4.4):
-----------
(a) In the event that Seller shall fail to consummate this Agreement
for any reason, except Purchaser's default or a termination of this
Agreement by Purchaser or Seller pursuant to a right to do so under the
provisions hereof, Purchaser, as its sole and exclusive remedy may pursue
the remedy of specific performance of Seller's obligations under this
Agreement: provided, however, that (i) Purchaser shall only be entitled to
such remedy if (A) any such suit for specific performance is filed within
sixty (60) days after Purchaser becomes aware of the default by Seller, (B)
Purchaser is not in default under this Agreement, (C) Purchaser has
tendered five percent (5%) of the Purchase Price to the Title Company, in
immediately available funds and the Title Company has acknowledged receipt
of same, in writing, to Seller, and (D) Purchaser has furnished ten (10)
days prior written notice to Seller of its intent and election to seek
specific enforcement of this Agreement; and (ii) notwithstanding anything
to the contrary contained herein, Seller shall not be obligated to expend
any sums to cure any defaults under this Agreement and if Purchaser seeks
specific performance under this Agreement, Purchaser agrees to accept the
Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that
prior to its exercise of any rights or remedies as a result of any defaults
by Seller, Purchaser will first deliver written notice of said default to
Seller and give Seller ten (10) days thereafter in which to cure said
default, if Seller so elects. In no event whatsoever shall Purchaser file
any instrument of record against title to the Property; provided, however,
Purchaser may file a lis pendens of this Agreement simultaneously with its
filing of a suit for specific performance pursuant to this Section 8.1.
----------
Notwithstanding any of the foregoing to the contrary, in no event
whatsoever, shall Purchaser have the right to seek money damages of any
kind as a result of any default by Seller under any of the terms of this
Agreement. In no event shall Seller be liable to Purchaser for any
punitive, speculative or consequential damages.
8.2 Breach by Purchaser. (a) If Purchaser fails to comply with Section 6
------------------- ---------
of this Agreement, Seller may terminate this Agreement as Seller's sole remedy
and relief hereunder (except for the Surviving Obligations). Seller and
Purchaser have made this provision because it would be difficult to calculate,
on the date hereof, the amount of actual damages for such breach, and Seller and
Purchaser agree that the remedy provided herein represents reasonable
compensation to Seller for such breach, (b) Notwithstanding the provisions of
Section 8.2(a) above, (i) in the event of any default by Purchaser under this
Agreement other than as described in Section 8.2(a) (including without
limitation any breach by the Purchaser of the negative covenant, set forth in
Section 8.1 above, not to file any instrument(s) against title to the Property
-----------
excepting the lis pendens described in Section 8.1 above), Seller shall have
-----------
any and all rights and remedies available at law or in equity by reason of such
default and (ii) the provisions of this Section 8.2 shall not limit or affect
-----------
any of Purchaser's indemnities as provided in other Sections of this Agreement.
PURCHASE AND SALE AGREEMENT - Page 13
<PAGE>
9.
FUTURE OPERATIONS
-----------------
9.1 Future Operations.
-----------------
(a) From the date of this Agreement until the Closing or earlier
termination of this Agreement:
(i) Seller will keep and maintain the Property in substantially
its condition as of the date of this Agreement;
(ii) Seller will perform all Seller's obligations under the
Contracts. Seller will not, without the prior written consent of
Purchaser, modify, enter into, or renew any Contract or Lease which
cannot be cancelled upon thirty (30) days prior written notice;
(iii) Seller will continue to manage the Property in a prudent
manner consistent with Seller's past practices.
(b) From the Effective Date until the Closing or earlier termination
of this Agreement, Seller will not lease any space in the Improvements
except upon the prior written approval of Purchaser (such approval not to
be unreasonably withheld or delayed); provided however, this limitation
upon Seller shall not apply with respect to lease renewals and lease
extensions pursuant to rights granted under an existing lease. In addition,
Seller shall not apply security deposits unless the corresponding tenant is
out of the demised premises by the Closing Date. All costs and expenses
(the "New Lease Expenses") incurred and paid by Seller under any new lease
entered into after the Effective Date (each, a "New Lease") shall be paid
by Purchaser in accordance with Section 6.6(c) hereof. Said costs and
--------------
expenses shall include, but not be limited to, costs incurred and paid by
Seller for tenant improvements, leasing commissions, capital improvements,
and reasonable attorney's fees. Notwithstanding anything to the contrary
contained herein, the New Lease Expenses for each New Lease allocable to
and payable by Seller shall be determined by multiplying the amount of such
New Lease Expenses by a fraction, the numerator of which shall be the
number of days contained in that portion, if any, of the term of such New
Lease commencing on the date on which the tenant thereunder shall have
commenced to pay fixed rent (the "Rent Commencement Date") and expiring on
the date immediately preceding the Closing Date, and the denominator of
which shall be the total number of days contained in the period commencing
on the Rent Commencement Date and expiring on the date of the scheduled
expiration of the term of such New Lease, and the remaining balance of the
New Lease Expenses for each New Lease shall be allocable to and payable by
Purchaser. The Rent Commencement Date under a renewal, extension, expansion
or modification of a Lease shall be deemed to be (A) in the case of a
renewal or extension (whether effective prior to or after the Closing, or
in the form of an option exercisable in the future), the first date during
such renewal or extension period after the originally scheduled expiration
of the term of such Lease on which the tenant under such Lease commences to
pay fixed rent, (B) in the case of an expansion (whether effective prior to
or after the Closing, or in the form of an option exercisable in the
future), the date on which the tenant under such Lease commences to pay
fixed rent for the additional space, and (C) in the case of a modification
not also involving a renewal, extension or expansion of such Lease, the
effective date of such modification agreement. At the Closing, Purchaser
shall reimburse Seller for all New Lease Expenses theretofore paid by
Seller, if any, in excess of the portion of the New Lease Expenses
allocated to Seller pursuant to the provisions of the preceding sentence.
PURCHASE AND SALE AGREEMENT - Page 14
<PAGE>
10.
MISCELLANEOUS
-------------
10.1 Notices. All notices, demands and requests which may be given or
-------
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefore, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; or (c) on
the first (1st) business day after being deposited into the custody of a
nationally recognized overnight delivery service such as Federal Express
Corporation, Emery or Purolator, addressed to such party at the address
specified below. For purposes of this Section 10.1, the addresses of the
------------
parties for all notices are as follows (unless changed by similar notice in
writing given by the particular person whose address is to be changed):
If to Seller: CMF Capital Company L.L.C.
c/o GE Capital Realty Group, Inc.
16479 Dallas Parkway, Suite 500
Two Bent Tree Tower
Addison, Texas 75001-2512
Attention: Mark Williams and Legal Department
Tel: (972)447-2552
Fax: (972) 447-2599
with a copy to: Andrews & Kurth L.L.P.
1717 Main Street, Suite 3700
Dallas, Texas 75201
Attention: Andrew L. Campbell, Esq.
Tel: (214) 659-4511
Fax: (214) 659-4401
If to Purchaser: T REIT L.P.
c/o Triple Net Properties, L.L.C.
1551 N. Tustin Avenue, Suite 650
Santa Ana, California 92705
c/o Mary Holcomb
Attention: Anthony W. Thompson
Tel: (714) 667-8252
Fax: (714) 667-6860
with a copy to: Hirschler, Fleischer, Weinberg, Cox & Allen
701 East Byrd Street
P.0. Box 500
Richmond, Virginia 23218-0500
Attention: Louis J. Rogers, Esq.
Tel: (804) 771-9567
Fax: (804) 644-0957
PURCHASE AND SALE AGREEMENT - Page 15
<PAGE>
If to Title
Company: Commonwealth Land Title Company
1700 Pacific Avenue, Suite 4740
Dallas, Texas 75201
Attention: Ms. Amanda Johnson
Tel: 214/855-8411
Fax: 214/754-9066
10.2 Real Estate Commissions. Seller shall pay to The Trammell Crow
-----------------------
Company (hereinafter called "Agent" whether one or more) upon the Closing of the
transaction contemplated hereby, and not otherwise, a cash commission in the
amount agreed on in a separate listing agreement between Seller and Agent. Said
commission shall in no event be payable unless and until the transaction
contemplated hereby is closed in accordance with the terms of this Agreement; if
such transaction is not closed for any reason, including, without limitation,
failure of title or default by Seller or Purchaser or termination of this
Agreement pursuant to the terms hereof, then such commission will be deemed not
to have been earned and shall not be due or payable. Seller shall also pay to
Triple Net Realty $80,000 in real estate commissions. Except as set forth above
with respect to Agent and Triple Net Realty, neither Seller nor Purchaser has
authorized any broker or finder to act on Purchaser's behalf in connection with
the sale and purchase hereunder and neither Seller nor Purchaser has dealt with
any broker or finder purporting to act on behalf of any other party. Purchaser
agrees to indemnify and hold harmless Seller from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Purchaser or on Purchaser's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby. Seller
agrees to indemnify and hold harmless Purchaser from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Seller or on Seller's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby. Purchaser
acknowledges that, in accordance with the terms of the Real Estate License Act
of the State of Texas, Agent has advised Purchaser that Purchaser should have
the abstract covering the Property examined by an attorney of Purchaser's
selection, or that Purchaser should be furnished with or obtain a policy of
title insurance. Notwithstanding anything to the contrary contained herein, this
Section 10.2 shall survive the Closing or any earlier termination of this
------------
Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
----------------
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written instrument
---------
executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
--------
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement; however,
---------------
if the final date of any period which is set out in any provision of this
Agreement falls on a Saturday, Sunday or legal holiday under the laws of the
United States or the State of Texas, then, in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
PURCHASE AND SALE AGREEMENT - Page 16
<PAGE>
10.7 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Texas and the laws of the United States pertaining to transactions in
such State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
----------------------------------
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely. In the event Seller consents to such assignment, Purchaser
and such assignee shall execute and deliver an Assignment of Purchase and Sale
Agreement in the form attached hereto as Exhibit F. Any subsequent assignment
---------
may be made only with the prior written consent of Seller. No assignment of
Purchaser's rights hereunder shall relieve Purchaser of its liabilities under
this Agreement. This Agreement is solely for the benefit of Seller and
Purchaser; there are no third party beneficiaries hereof. Any assignment of this
Agreement in violation of the foregoing provisions shall be null and void.
Seller may, in its sole and absolute discretion, transfer the Property and
Seller's rights and obligations under this Agreement without obtaining
Purchaser's consent.
10.9 Invalid Provision. If any provision of this Agreement is held to be
-----------------
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement; and, the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either party
---------------
hereto to file suit to enforce this Agreement or any provision contained herein,
the party prevailing in such suit shall be entitled to recover, in addition to
all other remedies or damages, as provided herein, reasonable attorneys' fees
incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
---------------------
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
10.12 Expiration. The execution of this Agreement by Purchaser and the
----------
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 4:00 p.m. Central Standard Time the _______ day of _________,
2000.
10.13 Effective Date. As used herein the term "Effective Date" shall mean
--------------
the first date the Title Company is in receipt of both this Agreement executed
by Purchaser and Seller (whether in counterparts or not) and the Earnest Money.
10.14 Exhibits. The following exhibits are attached to this Agreement and
--------
are incorporated into this Agreement by this reference and made a part hereof
for all purposes:
PURCHASE AND SALE AGREEMENT - Page 17
<PAGE>
(a) Exhibit A, the legal description of the Land.
---------
(b) Exhibit B, the form of the Deed.
---------
(c) Exhibit C, the form of the Assignment and Assumption of Personal
---------
Property, Service Contracts, Warranties and Leases.
(d) Exhibit D, the form of the Estoppel Certificate.
---------
(e) Exhibit E, the form of the Taxpayer I.D. Certification.
---------
(f) Exhibit F, the form of Assignment of Purchase and Sale Agreement.
---------
(g) Exhibit G, the form of Promissory Note.
---------
(h) Exhibit H, the form of First Deed of Trust, Security Agreement
---------
and Fixture Filing.
(i) Exhibit I, the form of Assignment of Rents and Leases.
---------
(j) Exhibit J, the form of UCC-1 Financing Statements.
---------
(k) Exhibit K, the form of Hazardous Substances Indemnity Agreement.
---------
(l) Exhibit L, the form of Notice and Agreement.
---------
(m) Exhibit M, the form of Guaranty
---------
(n) Exhibit N, the list of Contracts
---------
(0) Exhibit 0, the list of Leases
---------
(P) Exhibit P, the exceptions
---------
(q) Exhibit Q, the Rent Roll
---------
(r) Exhibit R, the form of Legal Opinion
---------
1O.15 No Recordation. Seller and Purchaser hereby acknowledge that neither
--------------
this Agreement nor any memorandum or affidavit thereof shall be recorded of
public record in Dallas County, or any other county. Should Purchaser ever
record or attempt to record this Agreement, or a memorandum or affidavit
thereof, or any other similar document, then, notwithstanding anything herein to
the contrary, said recordation or attempt at recordation shall constitute a
default by Purchaser hereunder, and, in addition to the other remedies provided
for herein, Seller shall have the express right to terminate this Agreement by
filing a notice of said termination in the county in which the Land is located.
10.16 Merger Provision. Except as otherwise expressly provided herein, any
----------------
and all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.17 DTPA Waiver. PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER THAT
-----------
(A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION, (B)
PURCHASER IS REPRESENTED BY LEGAL COUNSEL, AND (C) PURCHASER IS SEEKING TO
ACQUIRE THE PROPERTY, WHICH WILL NOT BE USED AS A FAMILY RESIDENCE, FOR A
CONSIDERATION THAT EXCEEDS $500,000, OR (D) (i) PURCHASER IS A BUSINESS ENTITY
THAT EITHER HAS ASSETS OF $5,000,000 OR MORE OR IS OWNED OR CONTROLLED BY A
CORPORATION OR ENTITY WITH ASSETS OF $5,000,000 OR MORE, OR (ii) PURCHASER IS A
SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE I-N
FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS
OF THIS TRANSACTION. PURCHASER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-
CONSUMER PROTECTION ACT (SECTIONS 17.41 AND FOLLOWING OF THE TEXAS BUSINESS AND
COMMERCE CODE) (THE "DTPA") AND ANY OTHER SIMILAR CONSUMER PROTECTION LAW,
WHETHER FEDERAL, STATE OR LOCAL. PURCHASER
PURCHASE AND SALE AGREEMENT - Page 18
<PAGE>
COVENANTS NOT TO SUE SELLER UNDER THE DTPA OR ANY SUCH SIMILAR CONSUMER
PROTECTION LAW.
10.18 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY
-----------
AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING,
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER
WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS
AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE
THE CLOSING OF TERMINATION OF THIS AGREEMENT.
PURCHASER:
Date of Execution T REIT L.P.,
by Purchaser: a Virginia limited partnership
______________________
By: T REIT, INC.
a Virginia corporation, its General Partner
By:__________________________________________
Name:_____________________________________
Title:____________________________________
SELLER: CMF CAPITAL COMPANY L.L.C.,
a Delaware limited liability company
Date of Execution
by Seller: By: GE CAPITAL REALTY GROUP, INC.,
Oct. 25, 2000 a Texas corporation, its Attorney-in-Fact
______________________
By: /s/ Jerry Tonn
-------------------------------------------
Name: Jerry Tonn
-----------------------------------------
Title: VP
----------------------------------------
PURCHASE AND SALE AGREEMENT - Page 19
<PAGE>
COVENANTS NOT TO SUE SELLER UNDER THE DTPA OR ANY SUCH SIMILAR CONSUMER
PROTECTION LAW.
10.18 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY
-----------
AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING,
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER
WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS
AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE
THE CLOSING OF TERMINATION OF THIS AGREEMENT.
PURCHASER:
Date of Execution T REIT L.P.,
by Purchaser: a Virginia limited partnership
October 25, 2000
---------------------
By: T REIT, INC.
a Virginia corporation, its General Partner
By: /s/ Anthony W. Thompson
------------------------------------------
Name: Anthony W. Thompson
-----------------------------------
Title: Chairman of the Board of
Directors, CEO, and President
-----------------------------------
SELLER: CMF CAPITAL COMPANY L.L.C.,
a Delaware limited liability company
Date of Execution
by Seller: By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its Attorney-in-Fact
---------------------
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PURCHASE AND SALE AGREEMENT - Page 19
<PAGE>
The undersigned Title Company hereby acknowledges receipt of a copy of this
Agreement, and agrees to hold it in accordance with the provisions of this
Agreement.
Date of Execution by COMMONWEALTH LAND TITLE COMPANY
Title Company:
10/26/00 By: /s/ Amanda Johnson
------------------------- ----------------------------------------
Amanda Johnson
-------------------------------------
Authorized Officer
EXHIBITS ARE NOT ATTACHED
PURCHASE AND SALE AGREEMENT - Page 20
