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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between Purchaser and Seller as of the Effective Date.
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.
DEFINITIONS
1.1. As used herein, the following terms shall have the meanings set
forth below in this Section 1.1:
Additional Termination Option Payment shall mean Ninety Thousand and
00/100 DOLLARS ($90,000.00).
Agent shall mean Trammell Crow Company.
Approval Period shall mean the period commencing on the Effective Date
and ending at 5:00 p.m., Dallas, Texas time, thirty (30) days after the
Effective Date.
Casualty Amount shall mean $100,000.00
Closing shall mean the act of settlement of the purchase and sale of
the Property in accordance with this Agreement at which, among other matters,
title to the Property is conveyed from Seller to Purchaser and the Purchase
Price is paid by Purchaser to Seller.
Closing Date shall mean the date that is fifteen (15) days after the
last day of the Approval Period.
Contracts shall mean all contracts pertaining to the Property and not
cancelable on thirty (30) days' notice without penalty or premium, including,
but not limited to, management contracts, service contracts, equipment leases
and maintenance contracts.
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 Initial Termination Option Payment.
Improvements shall mean all improvements and related amenities in and
on the Land, and located at 1202 Avenue R and 1248 Avenue R, Grand Prairie,
Texas.
Initial Termination Option Payment shall mean Ten Thousand and 00/100
DOLLARS ($10,000.00).
Inspection Materials shall mean copies of the Contracts (to the extent
in the possession of Seller or its property manager), copies of the Leases and a
Rent Roll.
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Land shall mean that certain tract of land located in the City of Grand
Prairie, Tarrant County, Texas, being more particularly described on Exhibit A
attached hereto and made a part hereof.
Owner's Policy shall mean the Owner's Policy of Title Insurance in the
standard form in use in the State, 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 Encumbrances.
Property shall have the meaning provided in Section 2.1 of this
Agreement.
Purchase Price shall mean Four Million Seven Hundred Thousand and
00/100 DOLLARS ($4,700,000.00).
Purchaser shall mean IRON MOUNTAIN RECORDS MANAGEMENT, INC., a Delaware
corporation, whose address for notice under this Agreement is as follows:
745 Atlantic Avenue
Attention: John Haydon, Director of Real Estate
Tel: (617) 535-4782
Fax: (617) 350-7881
with a copy to:
Iron Mountain Records Management, Inc.
745 Atlantic Avenue
Boston, MA 02111
Attention: Garry Watzke, Esq., Vice President
Tel: (617) 535-4702
Fax: (617) 350-7821
Rent Roll shall mean a rent roll in the form regularly prepared by the
property manager of the Property describing all Leases as of the last month
Seller received such information from the property manager.
Seller shall mean Murray Income Properties II, Ltd., a Texas limited
partnership, whose address for notice under this Agreement is as follows:
Murray Income Properties
5550 LBJ Freeway, Suite 675
Dallas, Texas 75240
Attention: Mitchell Armstrong
Tel: 972-991-9085
Fax: 972-991-9086
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with a copy to:
Murray Income Properties
299 S. 9th Street, Suite 204
Oxford, Mississippi 38655
Attention: Brent Buck
Tel: 662-281-8778
Fax: 662-281-8773
and
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Attention: Mark S. Biskamp
Tel: 214-740-8504
Fax: 214-740-8800
State shall mean the State of Texas.
Survey shall mean a current ALTA survey of the Property prepared in
accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Survey, including items 3, 7(a), 9 and 10 from Table A, and containing the
surveyor's certification in form reasonably satisfactory to Purchaser in favor
of Seller, Purchaser, Purchaser's lender, if any and the Title Company.
Termination Option Payment shall mean the Initial Termination Option
Payment and upon deposit of any Additional Termination Option Payment, the
Initial Termination Option Payment and the Additional Termination Option
Payment, collectively.
Title Commitment shall mean a Commitment for Owner's Policy of Title
Insurance with respect to the Property issued by the Title Company together with
legible copies of any restrictive covenants, easements and other items listed as
title exceptions in such Commitment.
Title Company shall mean Lawyers Title Insurance Corporation, whose
address for notice under this Agreement is as follows:
Lawyers Title Insurance Corporation
6029 Belt Line Road
Dallas, Texas 75240
Attention: Jeff Bell
Tel: (972) 789-8400
Fax: (972) 789-8029
2.
PURCHASE AND SALE
2.1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the
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Seller's assignable and transferable right, title and interest in and to the
following described property (herein collectively called the "Property"):
(a) Land. The Land.
(b) Easements. All easements, if any, benefiting the Land or
the Improvements.
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and
interest of Seller in and to adjacent streets, alleys or
rights-of-way.
(d) Improvements. The Improvements.
(e) Leases. All leases (the "Leases") of space in the
Improvements, concession leases and all tenant security
deposits for which landlord has liability to Tenants under the
Leases on the Closing Date.
(f) Tangible Personal Property. All appliances, fixtures,
equipment, 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 Personal
Property").
(g) Contracts. To the extent assignable without the consent of
third parties, all Contracts.
(h) Intangible Property. To the extent assignable without the
consent 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, transferable utility
contracts, transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, floor plans and
landscape plans.
3.
PURCHASE PRICE
3.1. Purchase Price. The Purchase Price shall be paid in cash by
Purchaser to Seller at the Closing by wire transfer in accordance with wire
transfer instructions to be provided by Seller.
4.
TERMINATION OPTION PAYMENT
4.1. Termination Option Payment. In consideration for the termination
option provided in Section 5.1.1 of this Agreement, Purchaser shall pay to
Seller the Termination Option Payment as hereinafter provided. Purchaser shall
deliver the Initial Termination Option Payment to the Title Company within two
(2) business days after the date a fully-executed copy of this Agreement is
delivered to the Title Company, by wire transfer in accordance with wire
transfer instructions provided by the Title Company. Seller shall have the
option of terminating this Agreement if the full amount of Initial Termination
Option Payment is not delivered to the Title Company as prescribed in this
Section 4.1. Purchaser agrees to promptly deliver or cause the Title Company to
deliver written acknowledgment by the Title Company that the executed copy of
this Agreement and the Initial Termination Option Payment
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have been received by and are being held by the Title Company pursuant to the
terms of this Agreement. Unless Purchaser shall have terminated this Agreement
in accordance with Section 5.1.1 prior to expiration of the Approval Period,
Purchaser shall prior to the end of the Approval Period, deliver the Additional
Termination Option Payment to the Title Company in the form of immediately
available funds by wire transfer. If Purchaser shall deliver a notice of
termination pursuant to Section 5.1.1 or if Purchaser shall fail to timely
deposit the Additional Termination Option Payment, this Agreement shall
terminate, whereupon the Initial Termination Option Payment shall be paid to
Seller, and neither Purchaser nor Seller shall have any further obligations
under this Agreement except for the Surviving Obligations. At Closing, the Title
Company shall pay the Termination Option Payment to Seller. If after the end of
the Approval Period, Purchaser terminates this Agreement in accordance with any
right to terminate granted to Purchaser by the terms of this Agreement, the
Termination Option Payment shall be immediately returned to Purchaser, and no
party hereto shall have any further obligations under this Agreement except for
such obligations which by their terms expressly survive the termination of this
Agreement (the "Surviving Obligations"). In all other events, the Termination
Option Payment shall be deemed to have been earned by Seller upon delivery and
shall be non-refundable. In no event will the Termination Option Payment be
applied to the Purchase Price. Purchaser agrees to deliver to Seller copies of
all Reports (as defined in Section 5.2 hereof) at the time the notice to
terminate this Agreement is given. The obligations to deliver the Reports shall
survive the termination of this Agreement. In no event shall any Termination
Option Payment be returned to Purchaser hereunder until all Reports have been
delivered to Seller.
5.
CONDITIONS TO CLOSING
5.1. Seller's Obligations. Seller shall deliver the Inspection
Materials to Purchaser, at Seller's expense, within ten (10) days after the
Effective Date. Seller's failure to timely deliver the Inspection Materials to
Purchaser shall result in the extension of the Approval Period by one (1) day
for each day of delay in delivering the Inspection Materials. In addition, from
and after the Effective Date, Seller shall make available for inspection and
copying by Purchaser and/or its representatives, at Purchaser's expense, at the
office of Seller's property manager, during normal office hours and upon
reasonable advance notice, the following to the extent any of the same are in
Seller's or its property manager's possession: (i) copies of all engineering,
environmental, soils and technical reports commissioned by Seller relating to
the Land or the Improvements, (ii) copies of all plans, drawings and
specifications relating to the Improvements, (iii) copies of all licenses,
permits, certificates of occupancy and other governmental entitlements relating
to use and occupancy of the Improvements, (iv) copies of operating statements
relating to the Improvements for the most recent three-year period, (v) copies
of the most recent ad-valorem tax statements relating to the Property and (vi)
copies of files maintained by Seller in the ordinary course of business relating
to Tenants.
5.1.1 Purchaser's Termination Option. If for any reason
Purchaser does not desire to purchase the Property, Purchaser may
terminate this Agreement by written notice to Seller at or before the
expiration of the Approval Period; and upon such termination, the
Initial Termination Option Payment shall be paid to Seller, and neither
party shall have any further obligation hereunder except for the
Surviving Obligations. If Purchaser does not terminate this Agreement
by written notice to Seller prior to the end of the Approval Period,
provided Purchaser timely deposits the Additional Termination Option
Payment, Purchaser shall be deemed to be satisfied with the Property
and shall have waived its right of termination under this Section
5.1.1.
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5.1.2 Title Commitment and Survey.
(a) Seller shall order the Survey within three (3) business
days after the Effective Date and shall cause the same to be delivered
to Purchaser as promptly as reasonably practicable. Purchaser shall
order the Title Commitment within three (3) business days after the
Effective Date and cause the same to be delivered to Seller as promptly
as reasonably practicable. 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 form of
Commitment for Title Insurance in use in the State) that are
unacceptable to Purchaser, Purchaser shall within ten (10) business
days after receipt of the Survey and the Title Commitment, notify
Seller in writing of such facts and the reasons therefor ("Purchaser's
Objections"). Upon the expiration of said ten (10) 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
and the Title Commitment. 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. Seller may, within ten (10) business days after receipt of
written notice of Purchaser's Objections ("Seller's Cure Period"),
deliver to Purchaser written notice ("Seller's Cure Notice") setting
forth which of Purchaser's Objections Seller will endeavor to cure
prior to the Closing Date and which of Purchaser's Objections Seller
cannot or does not intend to cure. If Seller has not given Seller's
Cure Notice by the end of Seller's Cure Period, Seller shall be deemed
to have given notice that it does not intend to cure any of Purchaser's
Objections. If by the earlier of (i) the end of the Approval Period or
(ii) the end of Seller's Cure Period, Seller has not cured or
undertaken to cure all of Purchaser's Objections to the reasonable
satisfaction of Purchaser, Purchaser may (as its sole and exclusive
remedy) terminate this Agreement by delivering written notice thereof
to Seller not later than at or before the expiration of the Approval
Period or five (5) days after the end of Seller's Cure Period,
whichever is later. If by the Closing Date, Seller has not cured to the
reasonable satisfaction of Purchaser all of Purchaser's Objections
which Seller has in Seller's Cure Notice undertaken to cure, Purchaser
may (as its sole and exclusive remedy) terminate this Agreement by
written notice to Seller on the Closing Date. In the event of a
termination of this Agreement by Purchaser under this Section 5.1.2,
the Title Company shall return the Termination Option Payments then
held by the Title Company, whereupon neither party shall have any
further obligations hereunder other than 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
in the Title Commitment to which Purchaser fails to timely object
pursuant to Section 5.1.2(a) of this Agreement; (ii) subject to
Purchaser's termination rights provided in Section 5.1.2(a), (A) any
Purchaser's Objection which in Seller's Cure Notice Seller has
undertaken to cure that remains uncured, for whatever reason, at the
Closing Date; and (B) any other of Purchaser's Objections which by the
end of the Seller's Cure Period, Seller has failed to cure or has
given, or is deemed to have given, notice that it cannot or does not
intend to cure; and (iii) the rights and interests of parties claiming
under the Leases.
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5.1.3 Limitations of Seller's Obligations. Notwithstanding
anything 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 5.1.1, Section 5.1.2 or Section 5.2, except for liens
voluntarily created by Seller.
5.2 Inspection.
(a) From and after the Effective Date through the Closing
Date, subject to the limitations hereinafter provided in this Section
5.2, Purchaser and its authorized agents and representatives may enter
upon the Land and Improvements to conduct such investigations, studies
and tests as Purchaser shall deem necessary or desirable.
Notwithstanding the foregoing, Purchaser must obtain Seller's written
approval of the scope and method of any environmental testing or
investigation (other than a Phase I environmental inspection) and any
physical or invasive testing or inspection prior to Purchaser's
commencement of such inspection or testing. Seller's prior written
consent for physical or invasive inspection or testing may be
conditioned upon receipt of a detailed description of the proposed
physical or invasive inspection or testing, a list of contractors who
will be performing the physical or invasive inspection or testing,
evidence of insurance satisfactory to Seller and such other information
as Seller reasonably requires in connection with such proposed
inspection or testing.
(b) 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, consultants, and contractors
as to the confidentiality of all such information.
(c) In conducting any inspections, investigations or tests of
the Property, Purchaser and its agents and representatives shall (i)
not unreasonably interfere with the operation and maintenance of the
Property, (ii) not unreasonably disturb any Tenant or unreasonably
interfere with any Tenant's use of the Property pursuant to its
respective Lease, (iii) not damage any part of the Property or any
personal property owned or held by any Tenant or third party, (iv) not
injure or otherwise cause bodily harm to Seller, the property manager
or their respective guests, agents, invitees, contractors and employees
or any Tenant or its guests or invitees, (v) maintain comprehensive
general liability insurance in terms and amounts reasonably acceptable
to Seller covering any accident arising in connection with the presence
of Purchaser, its agents and representatives on the Property; (vi)
promptly pay when due the costs of all tests, investigations and
examinations done with regard to the Property; (vii) not permit any
liens to attach to the Property or any part thereof by reason of the
exercise of Purchaser's rights hereunder, (viii) fully restore the
Property to the condition in which the same was found before any such
inspection or tests were undertaken; (ix) not reveal or disclose any
information obtained concerning the Property to anyone outside
Purchaser's organization except professionals and consultants assisting
Purchaser on a "need to know" basis; (x) permit Seller and its agents
and representatives to be present during any such inspection,
investigation or test; (xi) not contact any Tenant or make any inquiry
of any Tenant which in any way relates to the Property or Seller
without Seller's prior written consent, which consent shall not be
unreasonably withheld or delayed. Purchaser shall indemnify, defend and
hold harmless Seller and its agents, employees, officers, directors,
affiliates and asset managers from any liability, claim, damage, cost
or expense incurred by any of them
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arising out of or resulting from inspections, investigations or tests
of the Property conducted by Purchaser or its agents or
representatives. The foregoing indemnification by Purchaser shall
survive the Closing or the termination of this Agreement, as
applicable.
5.3 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that (a) if Purchaser is a partnership, corporation or
limited liability company, it is duly organized and in good standing under the
laws of the State of its organization, is qualified to do business in the State
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 partnership, corporate or limited
liability company, as the case may be, 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. The Purchaser's representations and warranties set
forth in this Section 5.3 shall survive the Closing or termination of this
Agreement. Purchaser's representations and warranties contained herein must be
true and correct through the Closing Date, the breach of same being a default by
Purchaser under this Agreement.
5.4 Seller's Representations, Warranties and Covenants.
(a) Seller represents and warrants to, and covenants with,
Purchaser that:
(i) Seller has full right, power and authority to
execute and deliver this Agreement and to consummate the
purchase and sale transactions provided for herein without
obtaining any further consents or approvals from, or the
taking of any other actions with respect to, any third
parties. This Agreement, when executed and delivered by Seller
and Purchaser, will constitute the valid and binding agreement
of Seller, enforceable against Seller in accordance with its
terms.
(ii) All bills and other payments due with respect to
the ownership, operation and maintenance of the Property for
the period of Seller's ownership of the Property shall be paid
by Seller in the ordinary course of business.
(iii) From the Effective Date until the Closing Date,
Seller shall: (A) maintain and operate the Property in
substantially the same manner as Seller has heretofore done;
(B) continue all Leases and Contracts in full force and
effect; neither cancel, amend or renew any of the same nor
enter into a new Lease or Contract other than Contracts
entered into in the ordinary course of Seller's business and
with notice to Purchaser within five (5) business days
following execution of such Contract; (C) not commit or permit
to be committed any physical waste to the Property; and (D)
not remove any item of the Tangible Personal Property from the
Land or Improvements unless it is replaced with an item of at
least equal value that is properly suited for its intended
purpose.
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(iv) With respect to each Tenant, except as reflected
in the Rent Roll or in the Lease: (A) to Seller's Knowledge,
such Tenant's Lease is in full force and effect and no uncured
breach or default exists on the part of the landlord or Tenant
thereunder; (B) Seller has received no written notice that
such Tenant is asserting any claim of offset or other defense
in respect of its or the landlord's obligations under its
Lease; and (C) Seller is the owner of the entire lessor's
interest in such Tenant's Lease and neither the landlord's
interest in and to the Leases nor the rents payable thereunder
have been assigned, pledged or encumbered in any manner by
Seller, except to Seller's mortgage lender which assignments
and encumbrances will be released at or prior to Closing.
(v) Except as disclosed on Exhibit I, none of the
Tangible Personal Property is held by Seller under a lease or
installment sale contract, and Seller owns title to the
Tangible Personal Property reflected on the inventory to be
delivered to Purchaser herein, free and clear of any liens or
claims, except liens to be released at Closing.
(vi) Except as disclosed on Exhibit J, Seller has
received no written notice of any action, suit, proceeding or
claim presently pending in any court or before any federal,
state, county or municipal department, commission, board,
bureau or agency or other governmental instrumentality or
before any arbitration, tribunal or panel, affecting (A) the
Property, or any portion thereof, (B) Seller's title, use,
operation or ownership of the Property, or (C) Seller's
ability to perform its obligations under this Agreement, nor,
to Seller's Knowledge is any such action, suit, proceeding or
claim threatened.
(vii) To Seller's Knowledge, there is no attachment,
execution, general assignment for the benefit of creditors, or
voluntary or involuntary bankruptcy proceedings, or
proceedings under any debtor relief laws, contemplated by or
pending or threatened against Seller or the Property.
(viii) Seller has received no written notice of any
condemnation, eminent domain or similar proceedings being
instituted or threatened against the Property by any
governmental authority having jurisdiction over the Property.
(ix) Except as disclosed on Exhibit K, Seller has
received no written notice from any governmental authority
having jurisdiction over the Property that the Improvements
and the current operation thereof violate any law, regulation,
ordinance, rule, order or other requirement of any
governmental authority having jurisdiction over the Property.
(x) Seller has received no written notice from any
governmental authority having jurisdiction over the Property
of any proposed new assessment against the Property.
When used herein, the phrase "to Seller's Knowledge" or
derivations thereof shall mean the current actual knowledge of
Brent Buck, without any obligation to make any investigation
or inquiry regarding the Property, and without obligation to
make any investigation of the files, documents or studies in
the possession of the property manager or other persons, and
shall not include any knowledge which may be imputed to Seller
or of any other person. Purchaser acknowledges that the
individual named above is named solely for the purpose
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of defining and narrowing the scope of Seller's knowledge and
not for the purpose of imposing any liability on or creating
any duties running from such individual to Purchaser.
Purchaser covenants that it will bring no action of any kind
against such individual, related to or arising out of these
representations and warranties.
(b) Seller's representations and warranties set forth in
Section 5.4(a) shall not be deemed to be merged into or waived by the
instruments of Closing, but shall survive the Closing for a period of
six (6) months (the "Survival Period"). No broker, agent or party other
than Seller is authorized to make any representation or warranty for or
on behalf of Seller. Purchaser shall have the right to bring an action
against Seller for the breach of a representation or warranty
hereunder, but only on the following conditions: (1) Purchaser first
learns of the breach after Closing and files such action within the
Survival Period, and (2) Purchaser shall not have the right to bring a
cause of action for a breach of a representation or warranty unless the
damage to Purchaser on account of such breach (individually or when
combined with damages from other breaches) equals or exceeds
$50,000.00. Notwithstanding any other provision of this Agreement, any
agreement contemplated by this Agreement, or any rights which Purchaser
might otherwise have at law, equity, or by statute, whether based on
contract or some other claim, any liability of Seller to Purchaser
(excepting the special warranty as to title as set forth in the Deed)
will be limited in the aggregate to $350,000.00. The general or limited
partners, employees, agent or affiliates of Seller will not in any
manner be personally or individually liable for the obligations of
Seller hereunder or for any claims related to this Agreement, any
agreement contemplated by this Agreement or the Property. Seller shall
not have any liability after Closing for the breach of a representation
or warranty hereunder of which Purchaser had knowledge as of Closing.
The provisions of this Section 5.4(b) shall survive Closing.
6.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
6.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE
SPECIAL WARRANTY OF TITLE SET FORTH IN THE DEED AND THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN SECTION 5.4(a), SELLER HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
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,
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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,
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. PURCHASER FURTHER ACKNOWLEDGES THAT CONTAMINANTS ARE ON OR UNDER
THE PROPERTY AS THE RESULT OF THE ACTIVITIES OF A NEIGHBORING PROPERTY OWNER AND
THAT INFORMATION IS AVAILABLE CONCERNING THIS IN THE FILE OF THE VOLUNTARY
CLEANUP PROGRAM PROJECT NO. 419 AT THE TEXAS NATURAL RESOURCE CONSERVATION
COMMISSION. 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. 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 EXCLUDING HOWEVER,
ANY SUCH DEBTS, DUTIES, OBLIGATIONS, LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES
OF ACTION, DAMAGES, LOSSES, FEES AND EXPENSES RELATED TO RELEASES OF HAZARDOUS
MATERIALS OCCURRING PRIOR TO THE CLOSING DATE (OTHER THAN RELEASES OF HAZARDOUS
Purchase and Sale Agreement - Page 11
<PAGE> 12
MATERIALS CAUSED OR PERMITTED TO BE CAUSED BY PURCHASER PRIOR TO THE CLOSING
DATE, IT BEING UNDERSTOOD THAT PURCHASER SHALL INDEMNIFY AND HOLD HARMLESS
SELLER IN CONNECTION WITH THE SAME). THE PROVISIONS OF THIS SECTION 6 SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
6.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in Section 101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Section 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. Section 6901 et seq.) ("RCRA") or regulations promulgated under RCRA;
(iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C.
Section 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.
6.3 Environmental Requirements. "Environmental Requirements" shall mean
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).
7.
CLOSING
7.1 Closing. The Closing shall be held at the offices of the Title
Company on the Closing Date, unless the parties mutually agree in writing upon
another place, time or date.
7.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Encumbrances.
7.3 Proration.
(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on
the day immediately preceding the Closing Date, the following
(collectively, the "Proration Items"): real estate and personal
property taxes and assessments (subject to the terms of Section 7.3(d)
below), utility bills (except as hereinafter provided), collected Rents
(subject to the terms of Section 7.3(b) below) and
Purchase and Sale Agreement - Page 12
<PAGE> 13
Operating Expenses (subject to the terms of Section 7.3(c) below)
payable by the owner of the Property. Seller will be charged and
credited for the amount of all of the Proration Items relating to the
period up to and including the Closing Date, and Purchaser will be
charged and credited for all of the Proration Items relating to the
period after the Closing Date. Such preliminary estimated Closing
prorations shall be set forth on a preliminary closing statement to be
prepared by Seller and submitted to Purchaser for Purchaser's written
approval prior to the Closing Date (the "Closing Statement"). The
Closing Statement, once agreed upon, shall be signed by Purchaser and
Seller and delivered to Title Company for purposes of making the
proration adjustment at Closing. The proration shall be paid at Closing
by Purchaser to Seller (if the prorations result in a net credit to
Seller) or by Seller to Purchaser (if the prorations result in a net
credit to Purchaser) by increasing or reducing the cash to be delivered
by Purchaser in payment of the Purchase Price at the Closing. If the
actual amounts of the Proration Items are not known as of the Closing
Date, the prorations will be made at Closing on the basis of the best
evidence then available; such prorations shall be conclusive and
binding on the parties without further adjustment. No prorations will
be made in relation to insurance premiums, and Seller's insurance
policies will not be assigned to Purchaser. Final readings and final
billings for utilities will be made if possible as of the Closing Date,
in which event no proration will be made at Closing with respect to
utility bills. Seller will be entitled to all deposits presently in
effect with the utility providers, and Purchaser will be obligated to
make its own arrangements for deposits with the utility providers.
"Rents" shall mean and include fixed monthly rentals, additional
rentals, percentage rentals, escalation rentals (which include each
Tenant's proportionate share of building operation and maintenance
costs and expenses as provided for under the applicable Lease, to the
extent the same exceeds any expense stop specified in such Lease),
retroactive rentals, all administrative charges, utility charges,
tenant or real property association dues, storage rentals, special
event proceeds, temporary rents, telephone receipts, locker rentals,
vending machine receipts and other sums and charges payable by Tenants
under the Leases or from other occupants or users of the Property, but
excluding amounts received from Tenants under Leases for Operating
Expenses. "Operating Expenses" shall mean operating expenses and common
area maintenance charges, including utilities, insurance and other
charges, under the Leases whether deemed additional rent or otherwise,
but excluding Rents.
(b) Purchaser will receive a credit on the Closing Statement
for the prorated amount (as of 11:59 p.m. of the day immediately
preceding the Closing Date) of all Rents previously paid to or
collected by Seller and attributable to the Closing Date or to any
period following Closing. Rents are "Delinquent" when they were due
prior to the Closing Date, and payment thereof has not been made on or
before the Closing Date. Delinquent Rents will not be prorated. All
sums collected by Purchaser from and after Closing from each Tenant
will be applied first to current amounts owed by such Tenant to
Purchaser and then to Delinquent Rents owed by such Tenant to Seller.
Any sums due Seller will be promptly remitted to Seller. Purchaser
shall not have an exclusive right to collect any sums due Seller from
Tenants under the Leases, and Seller hereby retains the right to pursue
any Tenant under the Leases for any sums due such Seller for periods
attributable to Seller's ownership of the Property; provided, however,
Seller (1) shall be required to notify Purchaser in writing of Seller's
intention to commence or pursue any legal proceedings; (2) shall only
be permitted to commence or pursue legal proceedings after the date
which is three (3) months after Closing; and (3) shall not be permitted
to commence or pursue any legal proceedings against any Tenant seeking
eviction of such Tenant or the termination of such Tenant's Lease. The
provisions of this Section 7.3(b) will survive the Closing for one
year.
Purchase and Sale Agreement - Page 13
<PAGE> 14
(c) All Additional Rents (as defined below) which have been
received in respect to the month in which the Closing Date occurs (the
"Current Month") shall be prorated as of the Closing Date. Such
Additional Rents for the Current Month which have been received as of
the Closing Date shall be prorated on a per diem basis based upon the
number of days in the Current Month prior to, but not including, the
Closing Date (which shall be allocated to Seller) and the number of
days in the Current Month from and after the Closing Date (which shall
be allocated to Purchaser). In addition, Seller shall be credited on
the Closing Date with its share of Rents and other Tenant charges and
Additional Rents for the Current Month and for all periods prior to the
Current Month which have not been received as of the Closing Date.
Purchaser shall be solely responsible, after the Closing Date, for
collecting unpaid Additional Rents. Additional Rents for calendar year
2000 are paid on an estimated basis in monthly installments. At least
five (5) business days prior to the Closing Date, Seller shall cause to
be prepared and delivered to Purchaser a reconciliation ("Additional
Rents Reconciliation") of (1) actual operating and similar expense of
the Property upon which Additional Rents are based ("Additional Rent
Expenses") for the period commencing on January 1, 2000 and ending on
the last day of the Current Month ("Additional Rents Reconciliation
Period"), it being understood that certain Additional Rents Expenses
for the Additional Rents Reconciliation Period, if not based on actual
amounts (such as certain operating expenses for the Current Month), may
be reasonably estimated by Seller; and (2) Additional Rents collected
by Seller for that portion of the Additional Rents Reconciliation
Period prior to the Current Month and Additional Rents payable for the
Current Month. Any amount shown to be owed by Seller to the Tenants
under the Additional Rents Reconciliation shall be credited to
Purchaser at the Closing, and any amounts shown to be owed to Seller by
Tenants of the Property under the Additional Rents Reconciliation shall
be credited to Seller at the Closing. For purposes of this Section
7.3(c), "Additional Rents" shall mean any and all amounts due from
Tenants for Operating Expenses and any other Tenant charges other than
Rents.
(d) All ad valorem real estate and personal property taxes
with respect to the Property (to the extent not prorated in Section
7.3(a) above) shall be prorated as of 11:59 p.m. of the day immediately
preceding the Closing Date on a cash basis for the calendar year in
which the Closing occurs, regardless of the year for which such taxes
are assessed.
(e) Purchaser shall receive a credit against Purchase Price at
Closing for all security deposits for which landlord has liability to
Tenants under the Leases on the Closing Date and for all Rents made in
advance (to the extent not prorated as set forth in Section 7.3(b)
above).
(f) Purchaser shall receive a credit against the Purchase
Price at Closing for all payments due or owing under any Contract for
periods prior to the Closing Date, which amounts shall be prorated as
of 11:59 p.m. of the day immediately preceding the Closing Date. If
Seller has paid any amounts under any Contract for periods after 11:59
p.m. of the day immediately preceding the Closing Date, Purchaser shall
pay such amounts to Seller at Closing in addition to the Purchase
Price. If any Contract furnished to Purchaser pursuant to Section 5.1
requires more than thirty (30) days prior notice to terminate, then
Purchaser must either (1) assume such Contracts pursuant to the Bill of
Sale, or (2) pay to Seller at Closing, in addition to the Purchase
Price, any amounts that will be due or owing under any such Contract
for periods from and after the Closing Date until such Contract is
terminable.
Purchase and Sale Agreement - Page 14
<PAGE> 15
(g) Seller shall receive a credit for any and all Reimbursable
Lease Expenses (hereinafter defined) as set forth in Section 7.9 of
this Agreement and for any and all Reimbursable Capital Expenses, to
the extent that the same have been paid by Seller prior to Closing.
Each party shall make available to the other all records, bills,
vouchers and other data in such party's control verifying Reimbursable
Capital Expenses and the payment thereof. "Reimbursable Capital
Expenses" shall mean costs or expenses for any capital expenditures or
improvements made by Seller after the Effective Date hereof but before
Closing as to which Purchaser has agreed in writing to reimburse
Seller, or as otherwise listed on Exhibit F. "Reimbursable Lease
Expenses" shall mean, collectively, the portions of those fees, costs
and expenses listed on Exhibit G or otherwise as to which Purchaser has
agreed in writing to reimburse Seller which are attributable, based on
a level amortization of such fees, costs and expenses over the term of
the applicable lease, to the portion of such term occurring after the
Closing Date. Reimbursable Lease Expenses shall include (if and to the
extent listed on Exhibit G), without limitation, the applicable
unamortized portions of (i) brokerage commissions and fees to effect
any such leasing transaction (including, without limitation, any fees
owed to any property manager), (ii) expenses incurred for repairs,
improvements, equipment, painting, decorating, partitioning and other
items to satisfy the Tenant's requirements with regard to such leasing
transaction, and (iii) legal fees for services in connection with the
preparation of documents and other services rendered in connection with
the effectuation of the leasing transaction. Notwithstanding anything
to the contrary herein, Reimbursable Lease Expenses shall not include
any fees, costs, and expenses related to the Lease (including all
amendments and addenda thereto) whereby Purchaser currently occupies a
portion of the Property and has rights to expand to occupy additional
portions of the Property.
7.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the cost of preparing the Deed and other
closing documents, the title insurance premium for the Owner's Policy (provided,
Purchaser may, at its option and expense, modify the survey exception to read
"shortages in area"), 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, any documentary stamp taxes or transfer taxes applicable to
sale of the Property, all recording costs, one-half (1/2) of any escrow fees and
other customary charges of the Title Company. Except as otherwise provided
herein, each party shall pay its own attorneys' fees.
7.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Title Policy. The Owner's Policy.
(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 in the form of
Exhibit D 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.
Purchase and Sale Agreement - Page 15
<PAGE> 16
(e) Contracts. The originals of all of the Contracts, if any,
in Seller's possession.
(f) Other. To the extent in the possession of Seller or its
property manager, (i) plans, drawings and specifications
relating to the Improvements; (ii) all transferable licenses,
permits, certificates of occupancy and other governmental
entitlements relating to use and occupancy of the
Improvements; (iii) files maintained by Seller in the ordinary
course of business relating to Tenants and (iv) leasing and
marketing materials pertaining to the Improvements.
7.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds.
(b) 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.
7.7 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 (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).
(c) Bill of Sale, Assignment and Assumption of Personal
Property, Contracts, Warranties and Leases. The Bill of Sale
(herein so called) in the form attached to this Agreement as
Exhibit C.
7.8 Purchaser's Assumption of Obligations. As additional consideration
for the purchase and sale of the Property, Purchaser covenants and agrees that
from and after Closing it will: (i) assume and perform all of the covenants and
obligations of Seller, Seller's predecessors in title and Seller's affiliates
(A) pursuant to the Leases and Contracts, including without limitation, those
relating to any security deposits, to the extent arising on or after the Closing
Date and (B) pursuant to the Leases regarding the physical, environmental or
legal compliance status of the Property, whether arising before, on or after the
Closing Date; (ii) assume and agree to discharge, perform and comply with each
and every liability, duty, covenant, debt or obligation of Seller of any of its
affiliates resulting from, arising out of, or in any way related to any licenses
and permits and arising on or after the Closing Date; and (iii) assume Seller's
obligations to pay, when due (whether on a stated due date or accelerated) any
Reimbursable Lease Expenses in accordance with Section 7.9 or any Reimbursable
Capital Expenses that are unpaid as of the Closing Date. Purchaser hereby
indemnifies and holds Seller harmless from and against any and all claims,
liens, damages, demands, causes of action, liabilities, lawsuits, judgments,
losses, costs and
Purchase and Sale Agreement - Page 16
<PAGE> 17
expenses (including but not limited to attorneys' fees and expenses) asserted
against or incurred by Seller and arising out of the failure of Purchaser to
perform its obligations pursuant to this Section 7.8. The provisions of this
Section 7.8 shall survive the Closing without limitation.
7.9 Lease Expenses. At Closing, Purchaser shall reimburse Seller for
any and all Reimbursable Lease Expenses to the extent that the same have been
paid by Seller prior to Closing. In addition, at Closing, Purchaser shall assume
Seller's obligations to pay, when due (whether on a stated due date or by
acceleration) any Reimbursable Lease Expenses unpaid as of the Closing, and
Purchaser hereby agrees to indemnify and hold Seller harmless from and against
any and all claims for such Reimbursable Lease Expenses which remain unpaid for
any reason at the time of Closing, which obligations of Purchaser shall survive
the Closing and shall not be merged therein. Each party shall make available to
the other all records, bills, vouchers and other data in such party's control
verifying Reimbursable Lease Expenses and the payment thereof.
7.10 Estoppel Certificate. Seller shall deliver to and request from the
other Tenant occupying the Property, an Estoppel Certificate in the form of
Exhibit H, certifying to Seller and Purchaser to the effect that no information
in such Tenant's Lease is materially at variance with the Rent Roll; and in
addition, an agreement of such Tenant to subordinate the Tenant's Lease (on the
identical terms currently in effect) to a new master lease to Purchaser's
synthetic lessee (to which such Lease shall become a sublease). In the event
that such Tenant is unable or unwilling to deliver the Estoppel Certificate and
subordination agreement to Seller and Purchaser on or before the Closing Date,
the Closing Date and the Closing hereunder shall be extended to December 1,
2000, said date being the first business day following expiration of the
Tenant's Lease. Seller and Purchaser shall then close the transactions
contemplated hereunder without the Estoppel Certificate and subordination
agreement.
7.11 Seller Environmental Indemnity. In the event that Seller fails to
receive an indemnity agreement in form and substance satisfactory to Seller, on
or before the Closing Date, executed by Van Waters & Rodgers, Inc. and Vopak
Distribution Americas Corporation relating to contaminants on or under the
Property, Seller shall have the right to terminate this Agreement, the
Termination Option Payments shall be returned to Purchaser, and neither party
shall have any further obligations hereunder other than the Surviving
Obligations.
7.12 Purchaser Environmental Indemnity. During the Approval Period,
Purchaser shall attempt to obtain an indemnity in form and substance
satisfactory to Purchaser from Van Waters & Rogers, Inc. and Vopak Distribution
Americas Corporation relating to contaminants on or under the Property
("Purchaser Indemnity Agreement"). Purchaser shall deliver a copy of any such
Purchaser Indemnity Agreement obtained to Seller within three (3) business days
after Purchaser's receipt of the same. In the event Purchaser is successful in
obtaining a Purchaser Indemnity Agreement and such agreement is unilaterally
terminated or repudiated by Van Waters & Rogers, Inc. and/or Vopak Distribution
Americas Corporation on or before the Closing Date, Purchaser shall have the
right to terminate this Agreement, the Additional Termination Option Payment
shall be returned to Purchaser, and neither party shall have any further
obligations hereunder other than the Surviving Obligations.
Purchase and Sale Agreement - Page 17
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8.
RISK OF LOSS
8.1 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 in
which event the Termination Option Payment (or so much thereof as has been paid
by Purchaser) shall be returned to Purchaser, 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.
8.2 Casualty. Except as provided in Sections 5 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 Property, or any part thereof, suffers any
damage in excess of the Casualty Amount, or any damage not compensible under
Seller's insurance coverages, 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 in which event the
Termination Option Payment (or so much thereof as has been paid by Purchaser)
shall be returned to Purchaser, 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 Property and any portion of such
proceeds paid or to be paid on account of the loss of rents or other income from
the Property 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, and Purchaser shall receive a credit against the Purchase Price for the
amount of the deductible applicable to Seller's insurance claim. If the
Property, or any part thereof, suffers any damage less than the Casualty Amount
prior to the Closing which is compensible under Seller's insurance coverages,
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.
9.
DEFAULT
9.1 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 5.4):
(a) In the event that Seller shall default in any of its
obligations hereunder to be performed prior to Closing, for
any reason other than 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 terminate this Agreement, receive a
refund of the Termination Option Payment and, subject to the
provisions of Section 9.1(b) below, pursue Seller for actual
damages incurred by Purchaser as a result of such default.
(b) Notwithstanding the foregoing, in no event shall the
aggregate amount of actual damages which Purchaser may be
entitled to recover against Seller pursuant to Sections 9.1(a)
above exceed an amount equal to the amount of the Termination
Option Payment
Purchase and Sale Agreement - Page 18
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and in no event shall Seller be liable to Purchaser for any
punitive, speculative or consequential damages or to the
remedy of specific performance.
9.2 Breach by Purchaser.
(a) If Purchaser fails to comply with Section 7 of this
Agreement, Seller may terminate this Agreement and thereupon
shall be entitled to the Termination Option Payment as
liquidated damages (and not as a penalty) and as Seller's sole
remedy and relief hereunder (except for the Surviving
Obligations). Seller and Purchaser have made this provision
for liquidated damages 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 these
sums represent reasonable compensation to Seller for such
breach.
(b) In the event of any default by Purchaser under this
Agreement, other than Purchaser's failure to comply with
Section 7 of this Agreement, Seller shall have any and all
rights and remedies available at law or in equity by reason of
such default.
The provisions of this Section 9.2 shall not limit or affect any of
Purchaser's indemnities as provided in other Sections of this Agreement.
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
specified in Section 1.1 above, 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 in Section 1.1 above; (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 in Section 1.1 above; or (d) on the date sent by
facsimile to the fax number specified in Section 1.1 above to the attention of
the appropriate person, with a copy of the receipt being forwarded by overnight
delivery service as herein provided. A party may change its address for notice
by written notice to all other parties as herein provided.
10.2 Real Estate Commissions. Seller shall pay to the Agent 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. Except
as set forth above with respect to Agent, neither Seller nor Purchaser has
authorized any broker or finder to act on Purchaser's or Seller'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
Purchase and Sale Agreement - Page 19
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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. 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. 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.
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, the State of Texas or the State, 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.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State and the laws of the United States pertaining to transactions in the 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. Except as hereinafter provided, 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
E. 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. Notwithstanding the foregoing, without Seller's consent,
Purchaser may assign this Agreement to Iron Mountain Statutory Trust-1999, a
Connecticut statutory trust.
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
Purchase and Sale Agreement - Page 20
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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 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:
Exhibit A, the legal description of the Land.
Exhibit B, the form of the Deed.
Exhibit C, the form of the Bill of Sale, Assignment and Assumption of
Personal Property, Contracts, Warranties and Leases.
Exhibit D, the form of the Non-Foreign Affidavit.
Exhibit E, the form of Assignment of Purchase and Sale Agreement.
Exhibit F, Reimbursable Capital Expenses
Exhibit G, Reimbursable Lease Expenses
Exhibit H, Estoppel Certificate
Exhibit I, List of Personalty Not Owned by Seller
Exhibit J, List of Actions, Suits and Claims
Exhibit K, List of Violation Notices from Governmental Authorities
10.13 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record. 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.
10.14 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.
10.15 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
Purchase and Sale Agreement - Page 21
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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.
REMAINDER OF THIS PAGE
LEFT BLANK INTENTIONALLY
Purchase and Sale Agreement - Page 22
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PURCHASER: IRON MOUNTAIN RECORDS
MANAGEMENT, INC.
a Delaware corporation
Date of Execution By: /s/ Garry B. Watzke
by Purchaser: -------------------------------------
September 18, 2000 Name: Garry B. Watzke
Title: Vice President
SELLER: MURRAY INCOME PROPERTIES II, LTD.,
a Texas limited partnership
By: Murray Realty Investors IX, Inc., a
Texas corporation
General Partner
Date of Execution
by Seller: By: /s/ Brent Buck
September 18, 2000 --------------------------------
Name: Brent Buck
Title: Executive Vice President
The undersigned Title Company hereby acknowledges receipt of the Initial
Termination Option Payment and a copy of this Agreement, and agrees to hold and
dispose of the Termination Option Payment in accordance with the provisions of
this Agreement.
Date of Execution by LAWYERS TITLE INSURANCE
CORPORATION
Title Company:
September 25, 2000
By: /s/ Jeffrey L. Bell
-------------------------------------
Authorized Officer
