AGREEMENT TO PURCHASE REAL PROPERTY
1. SALIENT TERMS
1.1 Date:
1.2 Parties: (a) Seller:
June 11, 1993
COUNTRY HOLLOW ASSOCIATES
c/o ICM Property Investors, Inc.
3658 Mount Diablo Boulevard
Suite 210
Lafayette, California 94549
Attn: Roger Galassi, Vice President
With copy to:
Zankel & McGrane
One Embarcadero Center
Suite 1200
San Francisco, CA 94111
Attn: Brian E. McLaughlin, Esq.
(b) Buyer: A.S., INC.
c/o Gustavo Garcia or Salvador Esquino
40 N.E. Loop 410, Suite 610
San Antonio, Texas 78216
1.3 Purchase Price:
1.4 General Location:
1.5 Security Deposit:
1.6 Scheduled Closing
Date:
1.7 LIQUIDATED DAMAGES
IN THE EVENT OF
BUYER'S DEFAULT:
With copy to:
Davidson & Trolio
A Professional Corporation
613 N.W. Loop 410, Suite 1000
San Antonio, TX 78216
Attn: Richard G. Jenkins, Esq.
$8,500,000.00 (Section 5)
Texas Bank North Building
13750 U.S. 281 North
San Antonio, TX
$140,000.00 (Section 3)
Thirty (30) days after the Contin-
gency Period (Section 4)
$140,000.00
INITIALS:
<PAGE>
PURCH-AG. 2A
6 / 1 1 /93
B-CSI-37 . 59
<PAGE>
Z~M
3333
1.8 Escrow Holder:
1.9 Contingency
Period -
Commonwealth Land Title Insurance
Company of San Antonio, Inc.
40 N.E. Loop 410, Suite 330
San Antonio, TX 78216
Attn: Jim Scecina
Thirty (30) days (expiring July 11,
1993)
(Section 6)
1.10 Real Estate 3% of Sale Price to:
Commission Payable Grubb & Ellis Company
if Purchase Closes: 40 N.E. Loop 410, Suite 575
San Antonio, TX 78216-5864
1.11 Exhibits: Exhibit A: Legal Description
Exhibit B: Tenant Roll
2. Agreement of Purchase and Sale. The Buyer specified in
Section 1.2(b) agrees to buy and the Seller specified in Section
1.2(a) agrees to sell the property described generally in Section
1.4 and more particularly in Exhibit A hereto (the "Land"),
together with all easements, rights-of-way, licenses, interests,
rights and appurtenances pertaining thereto, and all of Seller's
rights, title and interest therein, including, without limitation,
the following (which collectively with the Land is referred to as
the "Property") on all the terms and conditions stated herein:
(a) Any and all buildings, structures,
open parking areas and other improvements
located on the Land ("Improvements");
(b) All fixtures, equipment, appliances,
furniture, furnishings and other personal
property owned by Seller and attached to or
located in or on the Land ("Personal
Property");
(c) All rights, title and interests of
Seller in and to any easements, rights-of-way,
or other interests in, on, or to any land,
alley, highway, or street in, on, across,
abutting, or adjoining the Land; and all
rights, titles, and interests of Seller in and
to any awards, if any, made or to be made, or
payments made or to be made in lieu thereof,
and in and to any unpaid awards, if any, for
damage thereto by reason of change of grade of
any such highway or street;
-- 2 - PURCH-AG. 2A
6/11/93
<PAGE>
Z~M
3333
(d) All rights, title, and interest of
Seller in all leases, subleases and other
rental agreements (written or verbal, now or
hereafter in effect) which grant a possessory
interest in and to any space situated in the
Improvements ("Leases");
(e) All rights, title and interests of
Seller in all service contracts, warranties,
guaranties, bonds and insurance policies
relating to the Property (as hereinafter
defined) which Buyer elects to have
transferred and assigned to Buyer as
hereinafter set forth and which are assignable
("Property Agreements");
(f) All site plans, surveys, soil and
substrata studies, architectural drawings,
plans and specifications, engineering plans
and studies, floor plans, landscape plans and
other plans or studies of any kind in Seller's
possession, if any, which relate to the
Property;
(g) All books, records, promotional
material, tenant data and other materials of
any kind in Seller's possession, if any, which
are or may be used in the continuing operation
of the Property; provided, however, that any
such material which, in Seller's reasonable
opinion, constitutes a part of Seller's
continuing business operations or financial
records may be retained by Seller;
(h) All rights, title and interests of
Seller, if any, in and to the name "Texas Bank
North Building" and all similar trade names
and all good will, if any, related to the
Property;
(i) All rights, title and interests of
Seller in and to any and all assignable
escrow, security, damage, lease and/or any
other deposits ("Deposits") established in
connection with the Property.
3. Security Deposit. As an inducement to Seller to enter
into this contract, Buyer has deposited with the Escrow Holder a
Security Deposit in the amount of the sum specified in Section 1.5
which deposit shall be held by the Escrow Holder to secure the
PURCH-AG. 2A
6/11/93
B--CSI-87 . 59
<PAGE>
Z~M
3333
performance of the Buyer hereunder. The amount of the deposit
shall be applied to the Purchase Price on Close of Escrow.
4. Closing Date. "Close of Escrow," or the "Closing Date,"
is the date upon which the Special Warranty Deed conveying title to
Buyer is recorded with the County Recorder of the County in which
the Property is located, and shall occur on or before the date
specified in Section 1.6.
5. Terms. The purchase price shall be the sum specified in
Section 1.3 (the "Purchase Price"), and shall be paid to Seller at
Close of Escrow in cash.
6. Condition of Property: Buyer accepts the Property "as
is" without representation or warranty by Seller as to physical
condition, provided however, between the date of execution of this
Agreement, and the date specified in Section 1.9 (the "Contingency
Period"), Buyer, at its own risk, and expense, upon reasonable
notice to Seller, and subject to such conditions as Seller may
impose, may survey the Property and physically inspect the Property
including and not limited to electrical, plumbing, mechanical,
structural, and roof. Notwithstanding any provision of this
Agreement to the contrary, the Contingency Period shall not
commence until Seller has made available for Buyer's inspection at
the offices of the manager of the Property (the "Manager") (i) the
books and records of the Property, all Property Agreements and
Leases and itemized inventory of Personal Property, and (ii) all
revenue, expense and profit/loss statements relating to the
Property and any records related thereto, including, but not
limited to, cash flow statements, depreciation schedules, records
of tax-basis and proforma financial statements (collectively
"Financial Information"). Seller hereby represents to Buyer that
Seller has no actual knowledge of any false statements or
misrepresentations contained in any of the Financial Information.
Notwithstanding any other provision of this Contract, Seller will
cause the Manager to (i) make demand upon each tenant under the
Leases to deliver to Buyer estoppel certificates in a form
reasonably acceptable to Buyer, (ii) deliver to Buyer the tenant
rent rolls for the Improvements certified by the Manager as being
true, correct and complete (as of the last day of the month
immediately preceding the month in which such schedule is furnished
to Purchaser), such rent roll to contain the following information:
a list showing the space number and a statement as to whether the
space is occupied or vacant; if the space is occupied, the
commencement and termination date of the Lease covering that space;
the name(s) of the tenant(s); the amount of monthly rental and
other charges payable thereunder including, but not limited to,
estimated utilities; the amount of any rent or other charges, if
any, in arrears or prepaid thereunder, and the period for which any
such rents and other charges are in arrears or have been prepaid;
the number and period of any renewal options; and (iii) deliver to
_ 4 - PURCH-AG. 2A
6/ 11/93
B--CSI--87 . 59
<PAGE>
Z&M
~7.3~
Buyer a certificate from the president, vice president or chief
financial officer of the Manager that the Financial Information is
true, correct and complete to the Actual Knowledge of said Manager.
The Contingency Period may be extended by Buyer for thirty (30)
days solely to obtain financing and any appraisal required for such
financing. At expiration of the original Contingency Period, all
conditions which have not been objected to or satisfied shall be
deemed waived if Buyer extends the Contingency Period. Buyer has
relied upon its own inspection, and its own professional advisors
in its examination of the Property and all improvements thereon.
Buyer hereby represents, warrants, and covenants to Seller that
Buyer has conducted, or prior to expiration of the Contingency
Period will conduct, Buyer's own investigation of the Property and
the physical condition thereof, including, without limitation,
accessibility and location of utilities, Use of Hazardous Materials
on, from, or under the Property, earthquake preparedness of the
property, all matters concerning the Property with respect to
taxes, assessments, income and expense data, bonds, permissible
uses, zoning, covenants, conditions and restrictions, and other
matters which in Buyer's judgment are necessary or advisable or
might affect or influence Buyer's use of the Property, or bear upon
the value and suitability of the Property, for Buyer's intended
purposes, or Buyer's willingness to enter into this Agreement.
Buyer recognizes that Seller would not sell the Property except on
an "as is" basis, and acknowledges that Seller has made no repre-
sentations or warranties of any kind in connection with the Prop-
erty other than those, if any, which are expressly set forth in
this Agreement. Buyer's representations and warranties, as set
forth above, shall survive the closing of this transaction without
limitation of time. Buyer shall repair all damage to the Property
resulting from Buyer or Buyer's representatives coming upon the
Property to perform any surveys, inspections, tests or analyses.
If Buyer should determine in its sole discretion that the Property
is not suitable for Buyer's Purposes at any time prior to the
expiration of the Contingency Period, Buyer shall have the right to
terminate this Contract by giving Seller notice of termination.
Upon the giving of the notice of termination, the Security Deposit
shall be returned to Buyer, the parties shall be returned to their
original position as existed prior to the execution hereof, and
this contract shall be declared null and void and of no further
force or effect except for clauses (i) and (ii) in the second
sentence of this Paragraph and Paragraphs 19 through 28 below].
Buyer shall indemnify, defend by counsel acceptable to
Seller, and hold Seller harmless from and against any cost, claims,
damages or liabilities, including, but not limited to, attorneys'
fees and court costs, that may arise in connection with any testing
done on the Property. If Buyer does not elect to proceed with the
purchase of the Property as provided herein, Buyer shall: (i) cause
the Property to be returned to the condition it would have been in
but for any testing done on or with respect to the Property; and
- 5 - PURCH-AG. 2A
R--~.C T--F~7 ~q
<PAGE>
Z&M
3333
(ii) deliver to Seller copies of all tests, reports or inspections
and appraisals that Buyer has conducted on or with respect to the
Property.
7. Intentionally omitted.
8. Satisfaction of Conditions. Upon failure to satisfy any
of the conditions stated herein, unless there is a waiver of said
condition by the party in whose favor the condition has been in-
included, the Security Deposit hereunder shall be returned to Buyer,
the parties shall be returned to their original position as existed
prior to the execution hereof, and this contract shall be declared
null and void and of no further force or effect (except Paragraphs
19 through 28 hereof), provided that the party in whose favor the
condition runs has timely notified the other party of the failure
of the condition. Should the party in whose favor the failed
condition has been included waive the condition, the contract shall
remain in force as if the condition had not been included herein.
Each party shall use reasonable diligence in obtaining the removal
of all conditions herein running in its favor.
9. Tenants: Buyer takes the Property subject to the rights
of tenants. Seller represents that the lease(s), a list of which
are attached hereto as Exhibit B, are the only lease(s) or rental
agreements which affect the Property. Unless otherwise specified
in Exhibit B, each lease is in full force and effect and has not
been modified. Buyer shall assume all obligations of Lessor there-
under accruing after Close of Escrow.
10. Escrow: Within two (2) days after Buyer's execution
hereof an escrow shall be opened by depositing a signed copy of
this Agreement with the Escrow Holder designated in Section 1.8.
All escrow fees shall be paid for by Buyer. Escrow Holder is here-
by authorized and instructed to act in accordance with the provi-
sions of this Agreement, which Agreement together with Escrow
Holder's standard General Provisions, shall constitute Escrow
Holder's escrow instructions. Seller and Buyer shall each deposit
such other instruments and funds as are necessary to close the
escrow and complete the sale and purchase of the property in accor-
dance with the terms hereof. The obligations of each party which
are herein agreed to be undertaken by each party in the escrow
shall be and are hereby made agreements of such party in and under
this Agreement independent of the escrow. If any requirements
relating to the duties or obligations of Escrow Holder hereunder
are not acceptable to Escrow Holder, or if Escrow Holder requires
additional instructions, the parties agree to make such deletions,
substitutions and additions to these escrow instructions relating
to such duties or obligations of Escrow Holder or clarification of
these instructions as counsel for Seller and for Buyer shall mutu-
ally approve, and which do not substantially change this Agreement
or its intent. Seller and Buyer agree to perform, observe and
- 6 - PURCH-AG. 2A
6/11/93
B-CSI-87. 59
<PAGE>
Z&M
3333
fulfill the requirements of this Agreement notwithstanding said
deletions, substitutions or additions to said escrow instructions.
11. Title. Within two (2) days of execution hereof by all
parties Buyer shall order a preliminary title report ("Preliminary
Report") from Escrow Holder. Within ten (10) days after receipt of
a copy of the Preliminary Report, Buyer shall approve the report
or, in the alternative, shall specify in writing those exceptions
to title which it requests be removed prior to close of escrow. If
Seller elects not to remove such exceptions to the title and so
informs Buyer, or, if Seller cannot remove such exceptions to title
within ninety (90) days from the date of receipt of notice from
Buyer, Buyer may, at its option, terminate this agreement by writ-
ten notice to Seller within five (5) days following notice from
Seller that the exceptions will not be removed and any deposit
shall be returned to it, and this agreement shall be of no further
force or effect. There shall be no other remedy at law, equity or
otherwise for failure by Seller to deliver title in the manner
herein agreed except for a willful clouding of title by Seller.
Evidence of marketable title shall be in the form of a Texas
Standard Form Owner Policy of Title Insurance ("Standard Policy")
paid for by Buyer insuring title in Buyer, subject only to the
approved exceptions referred to above and the standard printed form
exceptions contained in a Standard Policy. Notwithstanding the
foregoing, the printed form survey exception contained in the
Standard Policy shall be limited to "shortages in area"; the
printed form exception for restrictive covenant shall be marked
"none of record" except those restrictive covenants that are
approved exceptions; there shall be no exception for rights of
parties in possession except for tenants; and the standard
exception for taxes shall read: "Taxes for the year 1993 and
subsequent years not yet due and payable, and subsequent
assessments for prior years due to change in land usage or
ownership." Buyer's failure to timely notify Seller of those
exceptions to title of which it does not approve within ten (10)
days following receipt of the Preliminary Report shall constitute
approval of all exceptions contained in the Preliminary Report.
The title policy shall be in the amount of the Purchase Price.
12. Costs and Prorations: Costs and prorations at close of
escrow shall be as follows:
(a) Prorations. Real property taxes and the current
installment of any special assessments shall be prorated through
escrow to the close of escrow, such proration to be based upon the
current tax bill for the property.
(b) Deposits. The amount of all security deposits and
other tenant deposits as shown in the rent roll shall be credited
to Buyer in the escrow, and the Buyer shall hold Seller harmless
from any claim by any tenant for the return of such deposits.
- 7 -- PURCH-AG. 2A
6/11/93
<PAGE>
(c) Utilities. Seller shall be responsible for all
utility services to the property and payment therefore until noon on
the Closing Date and Buyer shall be responsible for utility
services and payment therefor thereafter. Seller shall be entitled
to a return of any deposits posted by it with any utility company
and Buyer shall be obligated to post its own deposits. Seller
shall notify each utility company of the change in ownership but
Buyer shall execute all forms necessary to assume responsibility
for utility services after the Close of Escrow.
(d) Service and Maintenance Contracts. Seller shall be
responsible for payment of all service and maintenance contracts to
the Close of Escrow and Buyer shall be responsible for such payment
thereafter.
(e) Closing Charges. Buyer shall pay all recording
fees, the cost of revenue and documentary stamps, sales, excise
and/or transfer taxes, and all other impositions of a similar
nature
13. Remedies Upon Default: If the purchase described herein
is not completed by the Closing Date for any reason other than
Seller's breach hereof, Seller shall be relieved from his obliga-
tion to sell the Property and, if such purchase has failed to close
as a result of Buyer's breach hereof, Seller may proceed against
Buyer upon any claim and/or any remedy which Buyer may have in law
or equity; provided, however, by inserting their initials at
Section 1.7, Buyer and Seller agree THAT IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES IN CASE OF BUYER'S
DEFAULT, THAT THE PARTIES HAVE NEGOTIATED IN GOOD FAITH AS TO
THEIR
BEST REASONABLE ESTIMATE OF DAMAGES TO SELLER, AND AGREE THAT
THE
AMOUNT DESCRIBED IN SECTION 1.7 REPRESENTS THE RESULTS OF SUCH
NEGOTIATION AND THAT SELLER MAY, AT ITS OPTION, TAKE THAT SUM
FROM
ESCROW AS LIQUIDATED DAMAGES AND ESCROW HOLDER IS HEREBY SO
INSTRUCTED.
14. Damage and Destruction: In the event the Property shall
be damaged by reason of a casualty, this transaction shall, at the
option of Buyer, either terminate, in which event all the Security
Deposit shall be returned to Buyer (except that Paragraphs 19
through 28 hereof shall survive) or close as scheduled but Seller
shall pay over to Buyer in escrow, at closing, all insurance
proceeds received, and assign to Buyer Seller's rights to insurance
proceeds not yet received in connection the casualty.
Notwithstanding any other provisions hereof, closing, in such event
shall in no case occur later than ninety (90) days following the
date of the casualty, or the date Close of Escrow would otherwise
have occurred under the terms hereof, whichever occurs later.
15. Condemnation: In the event that, prior to the Close of
Escrow, a governmental entity shall commence any action of eminent
- 8 - PURCH-AG. 2A
R--t~ .'; T--~ 7 ~ 9
<PAGE>
Z&M
3333
domain to take any portion or all of the Property, this Agreement
shall be rendered void and of no further force or effect (except
Paragraphs 19 through 28 hereof), in which event the Security
Deposit shall be returned to Buyer.
16. Commissions: Commissions, if any, payable in connection
with this transaction shall be deemed earned, due and payable when
the sale closes, and in that event only, are set forth in Section
1.10, and such commissions shall be paid by Seller.
17. Seller's Exculpation: Neither the Seller nor any offi-
cer, agent or representative of the Seller shall be held to any
personal liability hereunder, nor shall resort be had to their
private property for satisfaction of any claim hereunder or in
connection with the affairs of the Seller, and that only the Prop-
erty herein shall be liable. This limitation shall extend to any
agreement, covenant, assignment, assumption or action made, de-
livered, executed or done under or in connection with this agree-
ment.
18. Notices: All notices, demands, requests, elections,
approvals, disapprovals, consents or other communications which
this agreement contemplates, shall be in writing and shall be
personally delivered or sent by registered or certified mail,
return receipt requested, addressed to the respective parties as
set forth in Section 1.2.
19. Occupancy and Possession: Occupancy and possession shall
be delivered to Buyer at Close of Escrow, subject to rights of ten-
ants, if any.
20. Attorneys' Fees: If either party hereto prevails against
the other in litigation concerning any part of this agreement, such
successful party shall be entitled to its reasonable attorneys'
fees, including costs of investigation, discovery, and court costs
in addition to all other recovery or relief.
21. Entire Agreement: This Agreement which includes this
instrument and its exhibits embodies the entire agreement and
understanding between the parties relating to the subject matter
hereof and supersedes all prior agreements, representations and
memoranda. No other representations, warranties or covenants have
been made, relied upon or survive the execution of this Agreement.
The invalidity of any one of the covenants, agreements, conditions
or provisions of this Agreement or any portion thereof shall not
affect the remaining portions hereof, and this Agreement shall be
construed as if such covenant, agreement, condition or provision
had not been inserted herein.
22. Time of the Essence: Time is of the essence of this
Agreement and every provision hereof. The failure of Buyer to
- 9 - PURCH-AG. 2A
6/11/93
R~ T--R7 59
<PAGE>
Z~M
3333
close escrow within the precise time specifications of this Agree-
ment shall constitute a material breach entitling Seller at its
option to terminate this Agreement in addition to having available
to it all other remedies at law and equity.
23. Modifications to be in Writinq: All modifications hereof
shall be in writing signed by both Buyer and Seller.
24. Survival: Except as may be otherwise specified herein,
any warranties and representations made herein survive the closing
of this transaction for a period of six (6) months.
25. Indemnification: Buyer hereby indemnifies and agrees to
defend and hold the Seller harmless from and against any and all
claims, actions, damages, liabilities, costs, expenses and other
losses including attorney's fees, in connection with any occurrence
in, upon or about the property from and after the Close of Escrow,
or, arising at any time out of any act or omission under this
agreement or otherwise in respect of the property, of Buyer, its
agents, contractors, employees, lessees, invitees or licensees,
including, without limitation, damage to the Property or claims
arising from Buyer or Buyer's representatives coming upon the
Property.
Buyer and Seller each represent and warrant that it has
not dealt with any salesmen, brokers or finders with respect to
this transaction, other than those specified in Section 1.10, and
each party agrees to indemnify and hold the other harmless in
regard to any claim therefor.
26. Successors: The terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the heirs, executors, administrators and assigns of the respective
parties hereto.
27. Assignment: Buyer may not assign its rights hereunder
without the prior written consent of the Seller. Seller may assign
its rights hereunder so long as it covenants to remain responsible
for the full performance hereof through Close of Escrow.
28. Choice of Laws: This Agreement shall be governed by the
laws of the State of California and any question arising hereunder
shall be construed or determined according to such law.
29. Arbitration. Any controversy or claim arising out of or
relating to this Agreement shall be settled by binding, final
arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association and judgment upon the award
rendered by the arbitrators may be entered into any court having
jurisdiction thereof. Such binding and final arbitration shall
take place and be heard in San Francisco, California.
- 10 -- PURCH-AG. 2A
6/11/93
B--CSI--87. 59
<PAGE>
Z~M
3333
30. Representations of Authority: Each party represents and
warrants to the other that the individual(S) executing this
agreement on its behalf is/are duly authorized to execute this
agreement on behalf of such named party in accordance with duly
adopted resolutions of the party's board of directors and bylaws
(if a corporation) and in accordance with the agreement of
partnership (if a partnership), and by delivery hereof warrant that
execution by no other signatory is required.
IN WITNESS ~HEREOF, Buyer and Seller have executed this
Agreement as of the date first above written.
BUYER
A.8., INC.,
a Texas c~or
By
Its
SELLER
COUNTRY HOLLOW ASSOCIATES,
a Texas~ General Partnership
By: ICMPI (San Antonio), Inc.,
a Delaware Corporation,
it~ Managing General
Partner
By:
Its:
- 11 - PURCH-AG. 2A
<PAGE>
PROPERTY DESCRIPTION
Lot Number Two Hundred For~y Six (246), New City
City 1985, Country Hollow Subdivision, situated
in the City of San Antonio, Bexar County, Texas,
according to the plat thereof recorded in Volume
9506, Page 166 of the Deed and plat Records of
Bexar County, Texas; along with that certain
easement benefitting said lot as described in that
certain Easement Agreement recorded in Volume 417,
Page 0630 of the Real Property y Records.
EXHIBIT A
<PAGE>
EXHIBIT B
TENANT RENT ROLL
(PLEASE CONTACT THE COMPANY IF SPECIFIC
RENT ROLL INFORMATION IS REQUIRED)
