Exhibit 10.41
MASTER PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
NOM DEFIANCE, LLC;
NOM LIMA BATH, LTD; AND
NOM WASEON, LLC
AS SELLER
AND
SERIES A, LLC
AS BUYER
JUNE 22, 2005
MASTER PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of June 22, 2005 (the "Effective Date").
PARTIES: This Master Purchase Agreement and Escrow Instructions is between NOM
DEFIANCE; LLC, NOM LIMA BATH,LTD; NOM WAUSEON, LLC (collectively,
"Seller") and SERIES A, LLC, an Arizona limited liability company, as
"Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of those
certain parcels of improved property listed by address on Exhibit A attached
hereto, and legally described on Exhibit A-1 attached hereto (collectively, the
"Real Property");
WHEREAS, as of the Effective Date, each parcel of the Real Property is
improved with a building containing that certain number of square feet set forth
on Exhibit A attached hereto (each, a "Building" and, collectively, the
"Buildings"). The Real Property, the Buildings and the improvements to the Real
Property (collectively, the "Improvements") are leased to Rite Aid of Ohio, Inc.
("Tenant") in accordance with a written lease (each, a "Lease" and,
collectively, the "Leases"). The Real Property, the Buildings, the Improvements,
the personal property, if any, of Seller located on the Real Property and
Seller's interest in each of the Leases and all rents issued and profits due or
to become due thereunder are hereinafter collectively referred to as the
"Premises"; and
WHEREAS, Buyer desires to purchase the Premises from Seller and Seller
desires to sell the Premises to Buyer free and clear of all liens, all as more
particularly set forth in this Master Purchase Agreement and Escrow Instructions
(the "Agreement").
WHEREAS, the parties hereto have elected to enter into one contract
affecting all three individual properties comprising the Premises
notwithstanding that legal title is held in three different Seller entities
(i.e. fee title to the Defiance Property is held by NOM Defiance, LLC, fee title
to the Lima Property is held by NOM Lima Bath, Ltd., and fee title to the
Wauseon Property is held by NOM Wauseon, LLC), with the intent that each
constituent Seller comprising the "Seller" is agreeing to sell (and make
representations, warranties and other covenants with respect to) only the
individual property to which such constituent Seller holds legal title.
NOW THEREFORE, in consideration of the promises set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Seller and Buyer (each, a "Party" and, collectively, the
"Parties") hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Premises subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns. This Agreement supersedes
all other written or verbal agreements between the Parties concerning any
transaction embodied in this Agreement. No claim of waiver or modification
concerning the provision of this Agreement shall be made against a Party unless
based upon a written instrument signed by such Party.
3. INCLUSIONS IN PREMISES.
(a) The Premises. The term "Premises" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining to
the Real Property;
(2) all mineral, water and irrigation rights, if any, running
with or otherwise pertaining to the Real Property;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Premises or any portion
thereof by reason of condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Buildings, the Improvements
and any other improvements and fixtures on the Real Property;
(6) all of Seller's interest, if any, in any equipment, machinery
and personal property located on or used in connection with the Real Property
(collectively, the "Personalty");
(7) the Leases and all security deposits, if any, now or
hereafter due thereunder; and,
(8) all of Seller's interest, to the extent transferable, in all
permits and licenses (collectively, the "Permits"), warranties (specifically
including, without limitation, the general contractor's one-year construction
warranty with respect to the construction of each Building and other
Improvements on the Real Property and any warranty related to the roof of each
Building), contractual rights and intangibles (including rights to the name of
the Improvements as well as architectural/engineering plans) with respect to the
operation, maintenance, repair or improvement of the Premises (collectively, the
"Contracts").
(b) The Transfer Documents. Except for the Personalty, which shall be
transferred by that certain bill of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit B (the "Bill of Sale"); the Leases, each of
which shall be transferred by that certain assignment and assumption of lease, a
specimen of which is attached hereto as Exhibit C (each, an "Assignment of
Lease"); the Permits and Contracts, which are to be transferred by that certain
assignment agreement, a specimen of which is attached hereto as Exhibit D (the
"Assignment Agreement"); all components of each of the Premises shall be
transferred and conveyed by execution and delivery by Seller of a special
warranty deed, a specimen of which is attached hereto as Exhibit E (each, a
"Deed"). The Bill of Sale, each Assignment of Lease, the Assignment Agreement
and each Deed are hereinafter collectively referred to as the "Transfer
Documents".
4. PURCHASE PRICE. The aggregate price to be paid by Buyer to Seller for
the Premises is TWELVE MILLION SEVEN HUNDRED FORTY THOUSAND and no/100 Dollars
($12,740,000.00) (the "Purchase Price"), which Purchase Price is allocated among
the Premises as set forth on Exhibit A attached hereto, and is payable as
follows:
(a) Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00)
earnest money (the "Earnest Money Deposit") to be deposited in escrow with
Fidelity National Title Insurance Company, 40 N. Central Avenue, Suite 2850,
Phoenix, Arizona 85004, Escrow Agent: Mary Garcia ("Escrow Agent") not later
than five (5) business days following the receipt by Escrow Agent of a
fully-executed original of this Agreement (said receipt by Escrow Agent of both
a fully-executed original of this Agreement and the Earnest Money Deposit, the
"Opening of Escrow"), which Earnest Money Deposit is to be held by Escrow Agent
until released to Seller or Buyer as provided herein or paid to Seller at close
of escrow ("COE"); and
(b) Such amounts, in additional cash, or other immediately available
funds (as may be increased or decreased by such sums as are required to take
into account any additional deposits, prorations, credits, or other adjustments
required by this Agreement), set forth in one or more settlement or closing
statements prepared by Escrow Agent and approved by Buyer and Seller in
connection with COE of each of the Premises purchased by Buyer from Seller
pursuant to this Agreement, to be deposited in escrow with Escrow Agent on or
before COE as to such Premises (the "Additional Funds") which is to be held by
Escrow Agent until cancellation of this Agreement as provided herein or paid to
Seller at COE.
(c) Notwithstanding the allocation of Purchase Price, but subject to
the terms and conditions contained herein, it is understood the Buyer's and
Seller's respective obligations hereunder are to purchase and sell all of such
individual properties constituting the Premises for the full Purchase Price.
5. DISPOSITION OF EARNEST MONEY DEPOSIT. Seller and Buyer hereby instruct
Escrow Agent to place the Earnest Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The Earnest
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the Earnest Money Deposit and all interest earned to
the effective date of withdrawal shall be paid immediately to Buyer;
(b) if the Earnest Money Deposit is forfeited by Buyer pursuant to
this Agreement, such Earnest Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller as Seller's agreed and total liquidated
damages, it being acknowledged and agreed that it would be difficult or
impossible to determine Seller's exact damages; and
(c) if escrow closes, the Earnest Money Deposit and all interest
earned to COE shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at COE.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. (a) Within ten (10) days after
the Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title
Report (each, a "Report" and, collectively, the "Reports") for an ALTA extended
coverage title insurance policy (each, an "Owner's Policy" and, collectively,
the "Owner's Policies") on each of the Premises to Buyer and Seller. Each Report
shall show the status of title to the applicable Premises as of the date of such
Report and shall also describe the requirements of Escrow Agent for the issuance
of an Owner's Policy corresponding to such Premises as described herein. The
cost of a standard Owner's Policy corresponding to each of the Premises will be
paid for by Seller; Buyer shall pay additional costs for extended coverage
policies. In addition to the Reports, Escrow Agent shall simultaneously deliver
to Buyer legible copies of all documents identified in Part Two of Schedule B of
each Report.
(b) If Buyer is dissatisfied with any exception to title as shown in
any Report (each such Report, an "Objectionable Report"), then Buyer may, by
giving written notice thereof to Escrow Agent and Seller on or before expiration
of the Study Period (as defined below) or ten (10) days from Buyer's receipt of
such Objectionable Report, whichever is later (provided, however, Buyer shall
have not less than ten (10) days from its receipt of the Survey (as defined in
Section 9 below) corresponding to each of the Premises to object to any matters
disclosed on or by such Survey that were not previously disclosed by seller's
existing survey corresponding to such Premises), either (i) terminate this
Agreement in its entirety, whereupon this Agreement shall be canceled as to all
of the Premises and the Earnest Money Deposit plus interest shall be returned
immediately to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement, or (ii) provisionally accept the title to such Premises corresponding
to such Objectionable Report subject to Seller's agreement to cause the removal
of any disapproved exceptions or objections, in which case Seller shall (at its
sole cost) remove the exceptions or objections (or, if acceptable to Buyer,
obtain title insurance endorsements over the exceptions and objections) before
COE.
If Buyer gives notice to Seller of its election of option (ii) above,
Seller shall notify Buyer in writing within five (5) business days after
receiving Buyer's written notice of disapproval of any exceptions or
objectionable matters if Seller does not intend to remove (or endorse over) any
such exception and/or objectionable matter. Seller's lack of response shall be
deemed as Seller's affirmative commitment to remove the objectionable exceptions
(or obtain title insurance endorsements over said exceptions and objections, if
acceptable to Buyer) prior to COE.
(c) In the event any Report is amended (each such Report, an "Amended
Report") to include new exceptions that are not set forth in the prior Report
corresponding to the same Premises, Buyer shall have until the later of (i) the
expiration of the Study Period, or (ii) the date seven (7) days after Buyer's
receipt of both such Amended Report and copies of the documents identified in
the new exceptions or new requirements (provided, however, Buyer shall have not
less than five (5) days from its receipt of any Survey revised to reflect any
such new
exceptions to object to any matters disclosed on or by such revised Survey
related to such new exceptions), within which to either (Y) terminate this
Agreement in its entirety, whereupon this Agreement shall be canceled as to all
of the Premises and the Earnest Money Deposit plus interest shall be returned
immediately to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement, or (Z) to provisionally accept the title to such Premises
corresponding to such Amended Report subject to Seller's agreement to cause the
removal of any disapproved exceptions or objections.
(d) In the event Buyer provisionally accepts title to a Premises
corresponding to either an Objectionable Report and/or an Amended Report
pursuant to Sections 6(b) and/or 6(c) above, if Seller serves notice to Buyer
that Seller does not intend to remove such exceptions and/or objections from an
Objectionable Report and/or an Amended Report, as applicable, before COE, Buyer
shall, within ten (10) days after receipt of such notice from Seller, notify
Seller and Escrow Agent in writing of Buyer's election to either (i) terminate
this Agreement in its entirety, whereupon this Agreement shall be canceled as to
all of the Premises and the Earnest Money Deposit plus interest shall be
returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement, or (ii) waive such objections. If written notice of either
satisfaction or dissatisfaction as to any Report is not timely given by Buyer to
Seller pursuant to this Section 6, then Buyer shall be deemed to have
disapproved of the condition of the title of the Premises corresponding to each
such Report, and shall have elected to remove the Premises corresponding to each
such Report from this Agreement as set forth in Section 6 terminate this
agreement above.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. As to any particular Premises, Buyer shall have
until the later of 5:00 p.m. MST on (i) the thirtieth (30th) day after the
Opening of Escrow; (ii) thirty (30) days from Buyer's receipt of all deliveries
of Seller's Diligence Materials (as hereinafter defined) related to such
Premises; (iii) that day which is ten (10) days after receipt of the Report and
legible copies of all documents identified in Part Two of Schedule B of the
Report; or (iv) that day which is ten (10) days from Buyer's receipt of the
Survey (as hereinafter defined) (the "Study Period"), at Buyer's sole cost,
within which to conduct and approve any investigations, studies or tests deemed
necessary by Buyer, in Buyer's sole discretion, to determine the feasibility of
acquiring each of the Premises, including, without limitation, Buyer's right to:
(x) review and approve each Survey, each Lease, Seller's operating statements
with respect to each of the Premises, and the Contracts; (y) meet and confer
with Tenant; and, (z) obtain, review and approve an environmental study of each
of the Premises (collectively, "Buyer's Diligence").
(b) Right of Entry. Subject to the prior rights of Tenant in the
Premises, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon each of the Premises, at any time or times
during the Study Period, to conduct Buyer's Diligence. In consideration
therefor, Buyer shall and does hereby agree to indemnify and hold Seller
harmless from any and all liabilities, claims, losses or damages, including, but
not limited to, court costs and attorneys' fees, which may be incurred by Seller
as a direct result of Buyer's Diligence. Buyer's indemnity and hold harmless
obligation shall survive cancellation of this Agreement or COE.
(c) Cancellation. Unless Buyer so notifies Seller or Escrow Agent, in
writing, on or before the end of the Study Period, of Buyer's acceptance as to
some or all of the Premises and waiver of the contingencies as set forth in this
Section 7, this Agreement shall be canceled as to all of the Premises and the
Earnest Money Deposit plus all interest accrued thereon shall be returned
immediately to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement.
8. DELIVERY OF SELLER'S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Seller agrees to deliver to Buyer
contemporaneously with the Opening of Escrow all information in Seller's
possession or control relating to the leasing, operating, maintenance,
construction (including the Certificate of Occupancy for each of the Premises),
repair, zoning (including any zoning verification letters), platting,
engineering, soil tests, water tests, environmental tests (including without
limitation those set forth on the attached Exhibit H), master planning,
architectural drawings and like matters regarding each of the Premises
(collectively, "Seller's Diligence Materials"), all at no cost to Buyer. The
foregoing deliveries shall include, but not be limited to, copies of all: (i)
books of account and records for each of the Premises; (ii) Lease corresponding
to each of the Premises (including any amendments thereto and tenant deposit
list in regard thereto);
(iii) a detailed listing of all capital expenditures on each of the Premises;
(iv) the maintenance history of each of the Premises; (v) current maintenance,
management, and listing contracts for each of the Premises including any
amendments thereto; (vi) all claims or suits by Tenant or third-parties
involving any of the Premises or any of the Leases or any Contracts (whether or
not covered by insurance); and (vii) a list of all claims or suits by or against
Seller regarding any of the Premises for the last thirty-six (36) months; (vii)
any appraisals of any of the Premises or any part therof; (ix) the site plan
with respect to each of the Premises; and (x) any other documents or other
information in the possession or control of Seller or its agents pertaining to
the Premises that Buyer may reasonably request in writing.
(b) Delivery by Buyer. If this Agreement is canceled as to all of the
Premises for any reason, except Seller's willful default hereunder, Buyer agrees
to deliver to Seller upon payment by Seller to Buyer of Buyer's cost thereof,
copies of those investigations, studies and/or tests which Buyer may have
elected to obtain.
9. THE SURVEYS. Seller, at Seller's cost, shall, within fifteen (15) days
of Opening of Escrow, cause a certified ALTA survey of the Real Property,
Building and Improvements comprising each of the Premises (each, a "Survey" and,
collectively, the "Surveys") to be completed by a surveyor licensed in the State
in which the applicable Premises is located and delivered to Buyer and Escrow
Agent, whereupon the legal descriptions in the Surveys shall control over the
descriptions in Exhibit A-1 attached hereto to the extent they may be
inconsistent. Each Survey shall set forth the legal description and boundaries
of the applicable parcel of Real Property and all easements, encroachments and
improvements thereon.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by COE a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the Earnest Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of each of the
Premises to Buyer at COE subject only to the rights of Tenant under each of the
Leases as approved by Buyer as part of Buyer's Diligence.
12. BUYER'S CONDITIONS PRECEDENT. In addition to all other conditions
precedent set forth in this Agreement, Buyer's obligations to perform under this
Agreement and to close escrow are expressly subject to the following:
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at
COE, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policies (or a written commitment
therefor) subject only to those matters approved or deemed approved by Buyer
pursuant to this Agreement;
(c) the delivery by Seller to Buyer at COE of all security deposits
and pre-paid/abated rents under each of the Leases, if any, in the form of a
credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the Study
Period of (i) an executed original estoppel certificate naming Buyer (or its
designee) and Wachovia Bank, National Association, as addressees, which
certificate must be reasonably acceptable to Buyer, in Tenant's standard form,
without any punch list items remaining, and (ii) a subordination,
non-disturbance and attornment agreement, in form and substance reasonably
acceptable to Tenant, for the benefit of Wachovia Bank, National Association,
both executed by Tenant with respect to each of the Leases;
(e) the deposit with Escrow Agent and Buyer prior to the expiration of
the Study Period of an executed waiver by Tenant of any right of first refusal
under each of the Leases;
(f) the deposit with Escrow Agent of an executed final lien waiver by
the general contractor, an executed affidavit of Seller and such other
documentation as may be reasonably required by Escrow Agent to allow for the
deletion of the mechanics' lien exception from each of the Owner's Policies;
(g) the delivery by Seller to Buyer of the Certificate of Occupancy
for each of the Premises;
(h) the delivery by Seller to Buyer of the leasehold title insurance
policy provided to Tenant for each of the Premises, if any is required under the
Leases;
(h) the delivery by Seller to Buyer of an architect's affidavit for
each of the Premises, in the form attached hereto as Exhibit F;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under each of the Leases be paid to Buyer; and
(i) delivery to Buyer of fully-executed originals of each Lease, the
Contracts and Permits, if any, in the possession of Seller or Seller's agents
and any correspondence with respect thereto, together with such non-proprietary
leasing and property manuals, files and records which are material in connection
with the continued operation, leasing and maintenance of each of the Premises.
If the foregoing conditions have not been satisfied as to any of the Premises by
the specified date or COE as the case may be, then Buyer shall have the right,
at Buyer's sole option, by giving written notice to Seller and Escrow Agent, to
cancel this Agreement as it relates to such Premises, whereupon the Purchase
Price shall be reduced by the amount corresponding to each of such Premises as
set forth on Exhibit A attached hereto and this Agreement shall continue in full
force and effect as to all remaining Premises. In the event this Agreement is
canceled for all of the Premises, the Earnest Money Deposit plus interest shall
be paid immediately by Escrow Agent to Buyer and, except as otherwise provided
in this Agreement, neither of the Parties shall have any further liability or
obligation under this Agreement.
13. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of COE that:
(a) there are no unrecorded leases (other than the Leases), liens or
encumbrances which may affect title to any of the Premises;
(b) to Seller's knowledge, no notice of violation has been issued with
regard to any applicable regulation, ordinance, requirement, covenant, condition
or restriction relating to the present use or occupancy of any of the Premises
by any person, authority or agency having jurisdiction;
(c) to Seller's knowledge, there are no intended public improvements
which will or could result in any charges being assessed against any of the
Premises which will result in a lien upon any of the Premises;
(d) to Seller's knowledge, there is no impending or contemplated
condemnation or taking by inverse condemnation of any of the Premises, or any
portion thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's knowledge,
threatened with respect to or in any manner affecting any of the Premises, nor
does Seller know of any circumstances which should or could reasonably form the
basis for any such suits or claims which have not been disclosed in writing to
Buyer by Seller;
(f) Seller has not entered into and there is not existing any other
agreement, written or oral, under which Seller is or could become obligated to
sell any of the Premises, or any portion thereof, to a third party and Seller
will not enter into nor execute any such agreement without Buyer's prior written
consent;
(g) Seller has not and will not, without the prior written consent of
Buyer, take any action before any governmental authority having jurisdiction
thereover, the object of which would be to change the present zoning of or other
land-use limitations, upon any of the Premises, or any portion thereof, or its
potential use, and, to
Seller's knowledge, there are no pending proceedings, the object of which would
be to change the present zoning or other land-use limitations;
(h) this transaction will not in any way violate any other agreements
to which Seller is a party;
(i) Seller has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(j) no default of Seller exists under any of the Contracts and, to
Seller's knowledge, no default of any of the other parties exists under any of
the Contracts;
(k) no consent of any third party is required in order for Seller to
enter into this Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at COE in accordance with this
Agreement, all bills or other charges, costs or expenses arising out of or in
connection with or resulting from Seller's use, ownership, or operation of any
of the Premises up to COE shall be paid in full by Seller;
(m) all general real estate taxes, assessments and personal property
taxes that have become due with respect to any of the Premises (except for those
that will be prorated at COE) have been paid or will be so paid by Seller prior
to COE;
(n) between the Effective Date and COE or any earlier termination of
this Agreement, Seller shall not execute or enter into any lease with respect to
any of the Premises, or terminate, amend, modify, extend or waive any rights
under any of the Leases without Buyer's prior written consent, which consent may
be withheld at Buyer's discretion;
(o) Seller agrees that, between the Effective Date and COE or any
earlier termination of this Agreement, Seller shall, at its sole cost:
(1) continue to operate each of the Premises as heretofore
operated by Seller subject to Buyer's rights under this Agreement to direct
specific activities of Seller;
(2) maintain or cause Tenant to maintain each of the Premises in
its current condition and perform required and routine maintenance and make
replacements of each part of the Premises that is tangible property (whether
real or personal) and perform repairs or make replacements to any broken,
defective or disfunctioning portion of any of the Premises that is tangible
property (whether real or personal) as the relevant conditions require;
(3) pay or cause Tenant to pay (as applicable) prior to COE, all
sums due for work, materials or services furnished or otherwise incurred in the
ownership, use or operation of the Premises up to COE;
(4) comply or cause Tenant to comply with all governmental
requirements applicable to the Premises;
(5) except as required by a governmental agency, not place or
permit to be placed on any portion of any of the Premises any new improvements
of any kind or remove or permit any improvements to be removed from any of the
Premises without the prior written consent of Buyer;
(6) not restrict, rezone, file or modify any development plan or
zoning plan or establish or participate in the establishment of any improvement
district with respect to all or any portion of any of the Premises without
Buyer's prior written consent; and
(7) without Buyer's prior written consent, Seller shall not, by
voluntary or intentional act or omission to act, further cause or create any
easement, encumbrance, or mechanic's or materialmen's liens, and/or similar
liens or encumbrances to arise or to be imposed upon any of the Premises or any
portion thereof that effects title thereto;
(p) Seller has no actual knowledge that there exists or has existed,
and Seller itself has not caused any generation, production, location,
transportation, storage, treatment, discharge, disposal, release or threatened
release upon, under or about any of the Premises of any Hazardous Materials.
"Hazardous Materials" shall mean any flammables, explosives, radioactive
materials, hazardous wastes, hazardous and toxic substances or related
materials, asbestos or any material containing asbestos (including, without
limitation, vinyl asbestos tile), or any other substance or material, defined as
a "hazardous substance" by any federal, state, or local environmental law,
ordinance, rule or regulation including, without limitation, the Federal
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Federal Hazardous Materials Transportation Act, as amended, the
Federal Resource Conservation and Recovery Act, as amended, and the rules and
regulations adopted and promulgated pursuant to each of the foregoing;
(q) Except as noted in the Environmental Site Assessments listed on
Exhibit H, copies of which have been provided Buyer, to Seller's actual
knowledge, there is not now, nor has there ever been, on or in any of the
Premises or any portion thereof underground storage tanks, any
asbestos-containing materials or any polychlorinated biphenyls, including those
used in hydraulic oils, electric transformers, or other equipment. Seller hereby
assigns to Buyer, effective as of COE, all claims, counterclaims, defenses, or
actions, whether at common law, or pursuant to any other applicable federal or
state or other laws which Seller may have against any third parties relating to
the existence of any Hazardous Materials in, at, on, under or about any of the
Premises (including Hazardous Materials released on any of the Premises prior to
COE and continuing in existence on any of the Premises at COE);
(r) to Seller's knowledge, there are no proceedings pending for the
increase of the assessed valuation of any of the Premises or any portion
thereof;
(s) should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 13 after the Effective
Date and prior to COE, Seller will immediately notify Buyer of the same in
writing;
(t) the execution, delivery and performance of this Agreement and the
Transfer Documents, specimens of which are attached hereto as Exhibits, have not
and will not constitute a breach or default under any other agreement, law or
court order under which Seller is a party or may be bound; and
(u) all representations made in this Agreement by Seller shall survive
the execution and delivery of this Agreement and COE. Seller shall and does
hereby indemnify against and hold Buyer harmless from any loss, damage,
liability and expense, together with all court costs and attorneys' fees which
Buyer may incur, by reason of any material misrepresentation by Seller or any
material breach of any of Seller's warranties. Seller's indemnity and hold
harmless obligations shall survive COE.
14. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of COE that:
(a) Buyer has full power and authority to execute, deliver and perform
under this Agreement as well as under the Transfer Documents, specimens of which
are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits;
(c) the execution, delivery and performance of this Agreement and the
Transfer Documents, specimens of which are attached hereto as Exhibits, have not
and will not constitute a breach or default under any other agreement, law or
court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to COE, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall survive
the execution and delivery of this Agreement and COE. Buyer shall and does
hereby indemnify against and hold Seller harmless from any loss, damage,
liability and expense, together with all court costs and attorneys' fees, if
awarded by a court of law, which Seller may incur, by reason of any material
misrepresentation by Buyer or any material breach of any of Buyer's warranties.
Buyer's indemnity and hold harmless obligations shall survive COE.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deposit with Buyer
and Escrow Agent on the day immediately prior to COE all security deposits and
advance rents paid/abatements with respect to any of the Leases, if any, and a
statement as to the date to which all rents have been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement except Sage
Investment Properties ("Sage") and Realty Fund Advisors, LLC ("Realty");
(b) if any person shall assert a claim to a finder's fee or brokerage
commission on account of alleged employment as a finder or broker in connection
with this Agreement (including Sage and/or Realty), the Party under whom the
finder or broker is claiming shall indemnify and hold the other Party harmless
from and against any such claim and all costs, expenses and liabilities incurred
in connection with such claim or any action or proceeding brought on such claim,
including, but not limited to, counsel and witness fees and court costs in
defending against such claim. The provisions of this subsection shall survive
cancellation of this Agreement or COE; and
(c) Seller shall be responsible for payment of a commission to Sage in
an amount equal to one percent (1.0%) of the Purchase Price, and a commission to
Realty in an amount equal to one-half percent (0.5%) of the Purchase Price,
which commissions shall be paid at COE.
17. CLOSE OF ESCROW. COE as to each of the Premises shall be on or before
5:00 p.m. MST on the later of (i) the thirtieth (30th) day after the expiration
of the Study Period (as such Study Period may be extended pursuant to Section
6(b) hereof) or (ii) the date which is ten (10) days after the Tenant commences
paying rent under the Lease, or such earlier date as Buyer may choose by giving
written notice thereof to Seller and Escrow Agent. Notwithstanding the
foregoing, in no event shall COE occur later than December 15, 2005. Buyer may
extend the COE date as to each of the Premises for up to an additional thirty
(30) days upon delivery of written notice to extend the COE date to Escrow Agent
prior to the original COE date corresponding to such Premises and by depositing
an additional Fifty Thousand and no/100 Dollars ($50,000.00) of earnest money
with Escrow Agent. For purposes of this Agreement, any additional earnest money
deposited with Escrow Agent pursuant to this Section 17 shall be added to and
become a part of the Earnest Money Deposit.
18. ASSIGNMENT. This Agreement may not be assigned by Seller without the
prior written consent of Buyer which consent shall not be unreasonably withheld.
Buyer may assign its rights under this Agreement to an affiliate of Buyer
without seeking or obtaining Seller's consent. Such assignment shall not become
effective until the assignee executes an instrument whereby such assignee
expressly assumes each of the obligations of Buyer under this Agreement,
including specifically, without limitation, all obligations concerning the
Earnest Money Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the Transfer Documents by providing written
notice of such designation at least five (5) days prior to COE. No assignment
shall release or otherwise relieve Buyer from any obligations hereunder.
19. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Premises which may occur prior to COE. In the event of any loss, damage or
taking with respect to any of the Premises prior to COE, Buyer may, at Buyer's
sole option, by written notice to Seller and Escrow Agent, remove such Premises
from this Agreement (each, a "Rejected Property") and the Purchase Price shall
be reduced by the amount corresponding to such Rejected Property as set forth in
Exhibit A attached hereto, and this Agreement shall continue in full force and
effect with respect to all remaining Premises. In the alternative, Buyer may
attempt to negotiate an appropriate downward adjustment of the Purchase Price.
If Seller and Buyer cannot agree upon such a downward adjustment within a
reasonable period (not to exceed ten (10) days from the date Buyer receives
notice of the loss) Buyer may remove such Rejected Property from this Agreement
as provided above. If Buyer waives any such loss or damage to any such Premises
and closes escrow, Seller shall at COE and as a condition precedent thereto, pay
Buyer or credit Buyer against the Additional Funds the amount of any insurance
or condemnation proceeds, or assign to Buyer, as of COE and in a form acceptable
to Buyer, all rights or claims for relief to the same. In the event of any loss,
damage or taking with respect to all of the Premises prior to COE and Buyer
elects to remove all Premises from this Agreement, then this Agreement shall
automatically terminate, whereupon the Earnest Money Deposit plus
interest shall be paid immediately to Buyer and, except as otherwise provided in
this Agreement, neither of the Parties shall have any further liability or
obligation hereunder.
20. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Buyer may, at
Buyer's sole option, either: (i) by written notice to Seller and Escrow Agent,
cancel this Agreement in its entirety whereupon the Earnest Money Deposit plus
interest shall be paid immediately by Escrow Agent to Buyer and, except as
otherwise provided in this Agreement, neither of the Parties shall have any
further liability or obligation hereunder; or, (ii) seek specific performance
against Seller in which event COE shall be automatically extended as necessary.
Notwithstanding the foregoing, if specific performance is unavailable as a
remedy to Buyer because of Seller's affirmative acts, Buyer shall be entitled to
pursue all rights and remedies available at law or in equity. This limitation of
damages does not apply to the indemnification under Section 16.
(b) Buyer's Breach. If Buyer breaches this Agreement, as its sole
remedy Seller shall be entitled to retain the Earnest Money Deposit in
accordance with subsection 5(b) as Seller's agreed and total liquidated damages.
Seller hereby waives any right to seek any equitable or legal remedies against
Buyer.
21. ATTORNEYS' FEES. If there is any litigation to enforce any provisions
or rights arising herein in accordance with Section 20(a), the unsuccessful
party in such litigation, as determined by the court, agrees to pay the
successful party, as determined by the court, all costs and expenses, including,
but not limited to, reasonable attorneys' fees incurred by the successful party,
such fees to be determined by the court.
22. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the U.S. Mail, certified or registered,
return receipt requested, postage prepaid, addressed to the Parties at the
addresses set forth below, or at such other address as a Party may designate in
writing pursuant hereto, or tested telex, or telegram, or telecopies (fax), or
any express or overnight delivery service (e.g., Federal Express), delivery
charges prepaid:
if to Seller: Newton Oldacre McDonald
3841 Green Hill Village Drive, Suite 400
Nashville, TN 37215
Attn: Mark Banks and Woody Camp, Esq.
Tel.: (615) 269-5444
Fax: (615) 383-6866
if to Buyer: Series A, LLC
2555 E. Camelback Road, Suite 400
Phoenix, AZ 85016
Attn: Legal Department
Tel.: (602) 778-8700
Fax: (602) 778-8780
with copies to: Bennett Wheeler Lytle & Cartwright, PLC
3838 N. Central Avenue, Suite 1120
Phoenix, AZ 85012
Attn: J. Craig Cartwright, Esq.
Tel.: (602) 445-3433
Fax: (602) 266-9119
if to Escrow Agent: Fidelity National Title Insurance Company
40 N. Central Avenue, Suite 2850
Phoenix, AZ 85004
Attn: Mary Garcia
Tel.: (602) 343-7571
Fax: (888) 788-4629
(b) All notices, elections, requests and other communication hereunder
shall be in writing and shall be deemed given (i) when personally delivered, or
(ii) upon receipt or refusal by the addressee after being deposited in the
United States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledged upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein).
23. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit G, and by this reference incorporated herein (the "Escrow
Instructions"). At COE, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one-half the fees and costs due Escrow Agent for its services
(the remaining one-half to be paid by Buyer), (iii) the transfer tax associated
with the sale of the Premises, if any, and (iv) all other costs to be paid by
Seller under this Agreement. Except as otherwise provided for in this Agreement,
Seller and Buyer will each be solely responsible for and bear all of their own
respective expenses, including, without limitation, expenses of legal counsel,
accountants, and other advisors incurred at any time in connection with pursuing
or consummating the transaction contemplated herein. Real estate taxes shall be
prorated based upon the current valuation and latest available tax rates. All
prorations shall be calculated through escrow as of COE based upon the latest
available information, including, without limitation, a credit to Buyer for any
rent prepaid by Tenant for the period beginning with and including the date on
which the closing occurs through and including the last day of the month in
which the closing occurs. All other credits to Buyer shall be similarly
prorated. Any other closing costs not specifically designated as the
responsibility of either Party in the Escrow Instructions or in this Agreement
shall be paid by Seller and Buyer according to the usual and customary
allocation of the same by Escrow Agent. Seller agrees that all closing costs
payable by Seller shall be deducted from Seller's proceeds otherwise payable to
Seller at COE. Buyer shall deposit with Escrow Agent sufficient cash to pay all
of Buyer's closing costs. Except as provided in this Section 23(a), Seller and
Buyer shall each bear their own costs in regard to this Agreement.
(b) Post-Closing Adjustment. If after COE, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 23(b) shall survive COE except that no adjustment shall be made
later than two (2) months after COE unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
24. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one-half of any
cancellation charges of Escrow Agent. The provisions of this Section 24 shall
survive cancellation of this Agreement.
25. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
26. Intentionally Deleted.
27. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
28. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Arizona.
In regard to any litigation which may arise in regard to this Agreement, the
Parties shall and do hereby submit to the jurisdiction of and the Parties hereby
agree that the proper venue shall be in the United States District Court for the
District of Arizona in Phoenix and in the Superior Court of Arizona in Maricopa
County, Arizona.
29. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its own choosing, and neither of which has acted under any duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the Parties each hereby waive the
application of any rule of law which would otherwise be applicable in connection
with the interpretation and construction of this Agreement that ambiguous or
conflicting terms or provisions contained in this Agreement shall be interpreted
or construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
30. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
31. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and provisions of this Agreement and
the terms and provisions of any document, instrument or other agreement executed
in connection herewith or in furtherance hereof, including any Exhibits hereto,
the same shall be consistently interpreted in such manner as to give effect to
the general purposes and intention as expressed in this Agreement which shall be
deemed to prevail and control.
32. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
33. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
34. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
35. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
36. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
Effective Date.
SELLER: NOM DEFIANCE, LLC
By: Corporate General, Inc.,
sole manager
By: /s/ Mark McDonald
------------------------------------
Its: V.P.
NOM LIMA BATH, LTD.
By: Corporate General, Inc.,
general partner
By: /s/ Mark McDonald
------------------------------------
Its: V.P.
NOM WAUSEON, LLC
By: Corporate General, Inc.,
sole manager
By: /s/ Mark McDonald
------------------------------------
Its: V.P.
BUYER: SERIES A, LLC
By: /s/ John M. Pons
------------------------------------
John M. Pons
Authorized Officer
ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the Earnest Money
Deposit is accepted by the undersigned this 22nd day of June, 2005, which for
the purposes of this Agreement shall be deemed to be the date of Opening of
Escrow. Escrow Agent hereby accepts the engagement to handle the escrow
established by this Agreement in accordance with the terms set forth in this
Agreement.
FIDELITY NATIONAL TITLE
INSURANCE COMPANY
By: /s/ Mary Garcia
------------------------------------
Title: VP, Senior Commercial
Escrow Officer
EXHIBIT A
THE REAL PROPERTY
ALLOCATED PURCHASE
PROPERTY ADDRESS BUILDING SQUARE FOOTAGE PRICE
- ---------------- ----------------------- ------------------
North Sessions Ave & 14,564 square feet $4,220,804.00
North Clinton Street,
Defiance, OH 43512
Belefontaine Ave & 14,564 square feet $4,625,517.00
S. Leonard Street,
Lima, OH
Shoop Ave & U.S. 14,564 square feet $3,893,679.00
Highway 20,
Wauseon, OH 43567
ASSIGNMENT OF MASTER PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
NOM DEFIANCE, LLC; NOM LIMA BATH, LTD; AND NOM WAUSEON, LLC,
COLLECTIVELY, AS SELLER
AND
SERIES A, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Master Purchase Agreement and Escrow Instructions (the
"Purchase Agreement") described herein, but only as it relates to the purchase
of the real property described below, to ASSIGNEE and its successors and
assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: June 22, 2005
ORIGINAL BUYER: Series A, LLC
ASSIGNED TO: Cole RA Wauseon OH, LLC
PROPERTY ADDRESS: 1496 N. Shoop, Wauseon, OH
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the earnest
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations and
liabilities under said Purchase Agreement, as it relates to the real property
described above. This Assignment shall be in full force and effect upon its full
execution.
Executed this 26th day of January, 2006.
ASSIGNOR: ASSIGNEE:
SERIES A, LLC, COLE RA WAUSEON OH, LLC, a Delaware
an Arizona limited liability company limited liability company
By: Cole REIT Advisors II, LLC,
a Delaware limited
liability company,
its Manager
By: /s/ John M. Pons By: /s/ John M. Pons
--------------------------------- ------------------------------------
John M. Pons John M. Pons, Senior Vice President
Authorized Officer