Execution Copy
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT FOR SALE AND PURCHASE ("Agreement") made and entered
into by and among CROWNRIDGE STORAGE PORTFOLIO, LLC, a Nevada limited liability
company, and WILLIAMS STORAGE PORTFOLIO III, LLC, a Nevada limited liability
company (individually, a "Seller", and together, "Sellers"), whose address is
2755 Bristol Street, #140, Costa Mesa, California 92626 and U-STORE-IT, L.P., a
Delaware limited partnership, and/or its permitted assigns ("Buyer") whose
address is 6745 Engle Road, Suite 300, Cleveland, Ohio 44130.
WITNESSETH:
The parties hereto agree that Sellers shall sell their respective
interests in, and Buyer shall buy, the following described properties upon the
terms and conditions hereinafter set forth.
1. DESCRIPTION OF THE PROPERTIES
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A. LEGAL DESCRIPTION.
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(i) The real property ("Gene Autry Trail Land")
consisting of approximately 4.7 acres of real property, together with all
improvements ("Gene Autry Trail Improvements") located thereon having
approximately 72,975 square feet of net rentable mini-storage space in 588 units
commonly known as "Sure Save USA Self Storage" and known for street numbering
purposes as 1400 S. Gene Autry Trail, in the City of Palm Springs, Riverside
County, California 92264, as the same is more fully described on Exhibit "A-1"
attached hereto and made a part hereof. -------------
(ii) The real property ("Varner Land") consisting of
approximately 3.58 acres of real property, together with all improvements
("Varner Improvements") located thereon having approximately 76,282 square feet
of net rentable mini-storage space in 890 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 72500 Varner Road, in
the City of Thousand Palms, Riverside County, California 92276, as the same is
more fully described on Exhibit "A-2" attached hereto and made a part hereof.
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(iii) The real property ("Radio Land") consisting of
approximately 6.73 acres of real property, together with all improvements
("Radio Improvements") located thereon having approximately 121,314 square feet
of net rentable mini-storage space in 638 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 401 and 500 Radio Road,
in the City of Palm Springs, Riverside County, California 92262, as the same is
more fully described on Exhibit "A-3" attached hereto and made a part hereof.
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(iv) The real property ("Ramon Land") consisting of
approximately 5.99 acres of real property, together with all improvements
("Ramon Improvements") located thereon having approximately 130,034 square feet
of net rentable mini-storage space in 1,053 units commonly known as "Sure Save
USA Self Storage" and known for street numbering purposes as 67-650 E. Ramon
Road, in the City of Cathedral City, Riverside County, California 92234, as the
same is more fully described on Exhibit "A-4" attached hereto and made a part
hereof. -------------
(v) The real property ("Waterman-Mill Land") consisting
of approximately 4.6 acres of real property, together with all improvements
("Waterman-Mill Improvements") located
thereon having approximately 54,925 square feet of net rentable mini-storage
space in 609 units commonly known as "Sure Save USA Self Storage" and known for
street numbering purposes as 401 S. Waterman-Mill, in the City of San
Bernardino, San Bernardino County, California 92408, as the same is more fully
described on Exhibit "A-5" attached hereto and made a part hereof.
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(vi) The real property ("Waterman Land") consisting of
approximately 8.2 acres of real property, together with all improvements
("Waterman Improvements") located thereon having approximately 108,238 square
feet of net rentable mini-storage space in 1,141 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 601 S.
Waterman, in the City of San Bernardino, San Bernardino County, California
92408, as the same is more fully described on Exhibit "A-6" attached hereto and
made a part hereof. -------------
(vii) The real property ("W. 23rd Land") consisting of
approximately 5.61 acres of real property, together with all improvements ("W.
23rd Improvements") located thereon having approximately 83,745 square feet of
net rentable mini-storage space in 770 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 1450 W. 23rd Street, in
the City of San Bernardino, San Bernardino County, California 92411, as the same
is more fully described on Exhibit "A-7" attached hereto and made a part hereof.
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(viii) The real property ("Baseline Land") consisting of
approximately 6.3 acres of real property, together with all improvements
("Baseline Improvements") located thereon having approximately 112,114 square
feet of net rentable mini-storage space in 1,231 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 1441 E.
Baseline Street, in the City of San Bernardino, San Bernardino County,
California 92410, as the same is more fully described on Exhibit "A-8" attached
hereto and made a part hereof. -------------
(ix) The real property ("Bonnie View Land") consisting
of approximately 3 acres of real property, together with all improvements
("Bonnie View Improvements") located thereon having approximately 56,755 square
feet of net rentable mini-storage space in 573 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 210 W. Bonnie
View Drive, in the City of Rialto, San Bernardino County, California 92376, as
the same is more fully described on Exhibit "A-9" attached hereto and made a
part hereof. -------------
(x) The real property ("Highland Land") consisting of
approximately 3.2 acres of real property, together with all improvements
("Highland Improvements") located thereon having approximately 62,335 square
feet of net rentable mini-storage space in 554 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 26441 Highland
Avenue, in the City of Highland, San Bernardino County, California 92346, as the
same is more fully described on Exhibit "A-10" attached hereto and made a part
hereof. --------------
(xi) The real property ("N. 43rd Land") consisting of
approximately 2.5 acres of real property, together with all improvements ("N.
43rd Improvements") located thereon having approximately 102,347 square feet of
net rentable mini-storage space in 879 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 1844 N. 43rd Avenue, in
the City of Phoenix, Maricopa County, Arizona 85009, as the same is more fully
described on Exhibit "A-11" attached hereto and made a part hereof.
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(xii) The real property ("Washington Land") consisting
of approximately 2.06 acres of real property, together with all improvements
("Washington Improvements") located thereon having approximately 45,470 square
feet of net rentable mini-storage space in 434 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes
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as 3122 E. Washington, in the City of Phoenix, Maricopa County, Arizona 85034,
as the same is more fully described on Exhibit "A-12" attached hereto and made a
part hereof. --------------
(xiii) The real property ("Power Land") consisting of
approximately 4.92 acres of real property, together with all improvements
("Power Improvements") located thereon having approximately 71,575 square feet
of net rentable mini-storage space in 524 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 536 N. Power Road, in
the City of Mesa, Maricopa County, Arizona 85205, as the same is more fully
described on Exhibit "A-13" attached hereto and made a part hereof.
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(xiv) The real property ("Nellis Land") consisting of
approximately 2.77 acres of real property, together with all improvements
("Nellis Improvements") located thereon having approximately 50,152 square feet
of net rentable mini-storage space in 445 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 2645 S. Nellis
Boulevard, in the City of Las Vegas, Clark County, Nevada 89121, as the same is
more fully described on Exhibit "A-14" attached hereto and made a part hereof.
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(xv) The real property ("Cheyenne Land") consisting of
approximately 5.33 acres of real property, together with all improvements
("Cheyenne Improvements") located thereon having approximately 50,325 square
feet of net rentable mini-storage space in 577 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 7370 W.
Cheyenne Avenue, in the City of Las Vegas, Clark County, Nevada 89129, as the
same is more fully described on Exhibit "A-15" attached hereto and made a part
hereof. --------------
(xvi) The real property ("Artesia Land") consisting of
approximately 5.7 acres of real property, together with all improvements
("Artesia Improvements") located thereon having approximately 124,047 square
feet of net rentable mini-storage space in 1,436 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 198 W. Artesia
Boulevard, in the City of Long Beach, Los Angeles County, California 90805, as
the same is more fully described on Exhibit "A-16" attached hereto and made a
part hereof. --------------
(xvii) The real property ("Arlington Land") consisting
of approximately 4.5 acres of real property, together with all improvements
("Arlington Improvements") located thereon having approximately 67,445 square
feet of net rentable mini-storage space in 719 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 7600 Arlington
Avenue, in the City of Riverside, Riverside County, California 92503, as the
same is more fully described on Exhibit "A-17" attached hereto and made a part
hereof. --------------
(xviii) The real property ("West Fifth Land") consisting
of approximately 3.7 acres of real property, together with all improvements
("West Fifth Improvements") located thereon having approximately 63,966 square
feet of net rentable mini-storage space in 745 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 2828 West
Fifth Street, in the City of Santa Ana, Orange County, California 92703, as the
same is more fully described on Exhibit "A-18" attached hereto and made a part
hereof. --------------
(xix) The real property ("Jamacha Land") consisting of
approximately 3.157 acres of real property, together with all improvements
("Jamacha Improvements") located thereon having approximately 55,158 square feet
of net rentable mini-storage space in 733 units commonly known as "Sure Save USA
Self Storage" and known for street numbering purposes as 9150 and 9180 Jamacha
Road, in the City of Spring Valley, San Diego County, California 91977, as the
same is more fully described on Exhibit "A-19" attached hereto and made a part
hereof. --------------
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(xx) The real property ("Fairgrounds Land") consisting
of approximately 3.96 acres of real property, together with all improvements
("Fairgrounds Improvements") located thereon having approximately 85,286 square
feet of net rentable mini-storage space in 825 units commonly known as "Sure
Save USA Self Storage" and known for street numbering purposes as 4011
Fairgrounds Street, in the City of Riverside, Riverside County, California
92501, as the same is more fully described on Exhibit "A-20" attached hereto and
made a part hereof. --------------
(xxi) The real property ("3026 South Country Club Land")
consisting of approximately 2.35 acres of real property, together with all
improvements ("3026 South Country Club Improvements") located thereon having
approximately 45,505 square feet of net rentable mini-storage space in 425 units
commonly known as "Sure Save USA Self Storage" and known for street numbering
purposes as 3026 South Country Club Drive, in the City of Mesa, Maricopa County,
Arizona 85210, as the same is more fully described on Exhibit "A-21" attached
hereto and made a part hereof. --------------
(xxii) The real property ("909 South Country Club Land")
consisting of approximately 2.03 acres of real property, together with all
improvements ("909 South Country Club Improvements") located thereon having
approximately 59,849 square feet of net rentable mini-storage space in 531 units
commonly known as "Sure Save USA Self Storage" and known for street numbering
purposes as 909 South Country Club Drive, in the City of Mesa, Maricopa County,
Arizona 85210, as the same is more fully described on Exhibit "A-22" attached
hereto and made a part hereof. --------------
(xxiii) The real property ("Hotel Land") consisting of
approximately 2.8 acres of real property, together with all improvements ("Hotel
Improvements") located thereon having approximately 52,364 square feet of net
rentable mini-storage space in 431 units commonly known as "Sure Save USA Self
Storage" and known for street numbering purposes as 49 Hotel Circle, in the City
of Albuquerque, Bernalillo County, New Mexico 87123, as the same is more fully
described on Exhibit "A-23" attached hereto and made a part hereof.
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(xxiv) The real property ("Spring Stuebner Land")
consisting of approximately 5.71 acres of real property, together with all
improvements ("Spring Stuebner Improvements") located thereon having
approximately 73,121 square feet of net rentable mini-storage space in 517 units
commonly known as "Sure Save USA Self Storage" and known for street numbering
purposes as 1220 Spring Stuebner Road, in the City of Spring, Harris County,
Texas 77373, as the same is more fully described on Exhibit "A-24" attached
hereto and made a part hereof. --------------
The Gene Autry Trail Land, the Varner Land, the Radio
Land, the Ramon Land, the Waterman-Mill Land, the Waterman Land, the W. 23rd
Land, the Baseline Land, the Bonnie View Land, the Highland Land, the N. 43rd
Land, the Washington Land, the Power Land, the Nellis Land, the Cheyenne Land,
the Artesia Land, the Arlington Land, the West Fifth Land, the Jamacha Land, the
Fairgrounds Land, the 3026 South Country Club Land, the 909 South Country Club
Land, the Hotel Land and the Spring Stuebner Land are collectively referred to
the "Land"; and the Gene Autry Trail Improvements, the Varner Improvements, the
Radio Improvements, the Ramon Improvements, the Waterman-Mill Improvements, the
Waterman Improvements, the W. 23rd Improvements, the Baseline Improvements, the
Bonnie View Improvements, the Highland Improvements, the N. 43rd Improvements,
the Washington Improvements, the Power Improvements, the Nellis Improvements,
the Cheyenne Improvements, the Artesia Improvements, the Arlington Improvements,
the West Fifth Improvements, the Jamacha Improvements, the Fairgrounds
Improvements, the 3026 South Country Club Improvements, the 909 South Country
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Club Improvements, the Hotel Improvements and the Spring Stuebner
Improvements are collectively referred to as the "Improvements".
B. PERSONAL PROPERTY. All fixtures, furniture,
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carpeting, draperies, appliances, building supplies, equipment, machinery,
inventory, the trade name and phone number(s) for "Sure Save USA Self Storage,"
licenses, including, without limitation, computer software licenses, permits and
other items of personal property owned by Sellers and presently affixed,
attached to, placed or situated upon the Land or Improvements and/or used in
connection with the ownership, operation and occupancy of the Land or
Improvements (collectively, "Personalty"), but specifically excluding any items
of personal property owned by any tenants ("Tenants") of the Land or
Improvements and any items of personal property owned by third parties and
leased to Sellers. Sellers shall deliver an inventory of the Personalty to Buyer
for approval not later than ten (10) days after the Effective Date (as
hereinafter defined) of this Agreement. Notwithstanding the foregoing, Buyer's
right to use the trade name "Sure Save USA Self Storage" shall be non-exclusive
and shall expire with respect to each Property upon the later of (i) expiration
of Sellers' existing Yellow Pages contracts relating to such Property and (ii)
the earlier of (a) replacement of Sellers' existing signage at such Property or
(b) one hundred twenty (120) days after the Closing Date.
C. LEASES. Sellers' interest in all leases and storage
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agreements ("Leases") now or hereafter affecting the Land or Improvements,
together with all advance rents and refundable security deposits, key deposits
and other deposits (collectively, "Security Deposits") of Tenants held by
Sellers.
D. CONTRACTS. Sellers' interest in all assignable
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leasing, service, supply and maintenance contracts, including Yellow Pages
contracts (collectively, "Contracts") relating to the ownership, use,
maintenance and operation of the Land, Improvements or Personalty which Buyer,
at its option, may elect to assume. Sellers shall deliver true and complete
copies of the Contracts to Buyer for approval not later than ten (10) days after
the Effective Date of this Agreement.
The items described in (A) and (B) of this Section 1 are hereinafter
individually referred to as a "Property" and collectively as the "Properties."
The items described in (A)(i) and in (B), (C) and (D) of this Section 1, to the
extent they relate to the Gene Autry Trail Land and Gene Autry Trail
Improvements, are hereinafter collectively referred to as the "Gene Autry Trail
Property." The items described in (A)(ii) and in (B), (C) and (D) of this
Section 1, to the extent they relate to the Varner Land and Varner Improvements,
are hereinafter collectively referred to as the "Varner Property." The items
described in (A)(iii) and in (B), (C) and (D) of this Section 1, to the extent
they relate to the Radio Land and Radio Improvements, are hereinafter
collectively referred to as the "Radio Property." The items described in (A)(iv)
and in (B), (C) and (D) of this Section 1, to the extent they relate to the
Ramon Land and Ramon Improvements, are hereinafter collectively referred to as
the "Ramon Property." The items described in (A)(v) and in (B), (C) and (D) of
this Section 1, to the extent they relate to the Waterman-Mill Land and
Waterman-Mill Improvements, are hereinafter collectively referred to as the
"Waterman-Mill Property." The items described in (A)(vi) and in (B), (C) and (D)
of this Section 1, to the extent they relate to the Waterman Land and Waterman
Improvements, are hereinafter collectively referred to as the "Waterman
Property." The items described in (A)(vii) and in (B), (C) and (D) of this
Section 1, to the extent they relate to the W. 23rd Land and W. 23rd
Improvements, are hereinafter collectively referred to as the "W. 23rd
Property." The items described in (A)(viii) and in (B), (C) and (D) of this
Section 1, to the extent they relate to the Baseline Land and Baseline
Improvements, are hereinafter collectively referred to as the "Baseline
Property." The items described in (A)(ix) and in (B), (C) and (D) of
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this Section 1, to the extent they relate to the Bonnie View Land and Bonnie
View Improvements, are hereinafter collectively referred to as the "Bonnie View
Property." The items described in (A)(x) and in (B), (C) and (D) of this Section
1, to the extent they relate to the Highland Land and Highland Improvements, are
hereinafter collectively referred to as the "Highland Property." The items
described in (A)(xi) and in (B), (C) and (D) of this Section 1, to the extent
they relate to the N. 43rd Land and N. 43rd Improvements, are hereinafter
collectively referred to as the "N. 43rd Property." The items described in
(A)(xii) and in (B), (C) and (D) of this Section 1, to the extent they relate to
the Washington Land and Washington Improvements, are hereinafter collectively
referred to as the "Washington Property." The items described in (A)(xiii) and
in (B), (C) and (D) of this Section 1, to the extent they relate to the Power
Land and Power Improvements, are hereinafter collectively referred to as the
"Power Property." The items described in (A)(xiv) and in (B), (C) and (D) of
this Section 1, to the extent they relate to the Nellis Land and Nellis
Improvements, are hereinafter collectively referred to as the "Nellis Property."
The items described in (A)(xv) and in (B), (C) and (D) of this Section 1, to the
extent they relate to the Cheyenne Land and Cheyenne Improvements, are
hereinafter collectively referred to as the "Cheyenne Property." The items
described in (A)(xvi) and in (B), (C) and (D) of this Section 1, to the extent
they relate to the Artesia Land and Artesia Improvements, are hereinafter
collectively referred to as the "Artesia Property." The items described in
(A)(xvii) and in (B), (C) and (D) of this Section 1, to the extent they relate
to the Arlington Land and Arlington Improvements, are hereinafter collectively
referred to as the "Arlington Property." The items described in (A)(xviii) and
in (B), (C) and (D) of this Section 1, to the extent they relate to the West
Fifth Land and West Fifth Improvements, are hereinafter collectively referred to
as the "West Fifth Property." The items described in (A)(xix) and in (B), (C)
and (D) of this Section 1, to the extent they relate to the Jamacha Land and
Jamacha Improvements, are hereinafter collectively referred to as the "Jamacha
Property." The items described in (A)(xx) and in (B), (C) and (D) of this
Section 1, to the extent they relate to the Fairgrounds Land and Fairgrounds
Improvements, are hereinafter collectively referred to as the "Fairgrounds
Property." The items described in (A)(xxi) and in (B), (C) and (D) of this
Section 1, to the extent they relate to the 3026 South Country Club Land and
3026 South Country Club Improvements, are hereinafter collectively referred to
as the "3026 South Country Club Property." The items described in (A)(xxii) and
in (B), (C) and (D) of this Section 1, to the extent they relate to the 909
South Country Club Land and 909 South Country Club Improvements, are hereinafter
collectively referred to as the "909 South Country Club Property." The items
described in (A)(xxiii) and in (B), (C) and (D) of this Section 1, to the extent
they relate to the Hotel Land and Hotel Improvements, are hereinafter
collectively referred to as the "Hotel Property." The items described in
(A)(xxiv) and in (B), (C) and (D) of this Section 1, to the extent they relate
to the Spring Stuebner Land and Spring Stuebner Improvements, are hereinafter
collectively referred to as the "Spring Stuebner Property."
2. PURCHASE PRICE. The aggregate purchase price
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("Purchase Price") for the Properties shall be One Hundred Sixty-Seven Million
and 00/100ths Dollars ($167,000,000.00), allocated to each Property as follows
("Purchase Price"):
Gene Autry Trail Property $ 8,700,000.00
Varner Property 8,300,000.00
Radio Property 13,100,000.00
Ramon Property 12,200,000.00
Waterman-Mill Property 4,350,000.00
Waterman Property 6,700,000.00
W. 23rd Property 8,200,000.00
Baseline Property 9,400,000.00
Bonnie View Property 5,000,000.00
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Highland Property 7,100,000.00
N. 43rd Property 4,500,000.00
Washington Property 3,000,000.00
Power Property 3,650,000.00
Nellis Property 4,800,000.00
Cheyenne Property 8,700,000.00
Artesia Property 18,700,000.00
Arlington Property 7,500,000.00
West Fifth Property 6,800,000.00
Jamacha Property 6,550,000.00
Fairgrounds Property 6,500,000.00
3026 South Country Club Property 2,900,000.00
909 South Country Club Property 2,800,000.00
Hotel Property 3,900,000.00
Spring Stuebner Property 3,650,000.00
Notwithstanding the above allocation of Purchase Price, and subject
to Section 26 hereof, Sellers shall not be required to sell any one (1) Property
unless Buyer purchases all of the Properties in accordance with the terms of
this Agreement.
3. DEPOSITS
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A. EARNEST MONEY DEPOSIT. Within three (3) business days
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after execution of this Agreement by all parties, Buyer shall deliver to and
deposit with First American Title Insurance Company ("Escrow Agent") the sum of
Two Million and 00/100ths Dollars ($2,000,000.00) ("Earnest Money Deposit")
securing the obligations of Buyer hereunder, which shall be held in escrow by
Escrow Agent in accordance with the terms and conditions of this Agreement. The
Earnest Money Deposit received hereunder by Escrow Agent shall be deposited by
Escrow Agent in an interest bearing escrow account, which interest shall accrue
for the benefit of Buyer.
B. CLOSING PAYMENT. At Closing, the Purchase Price,
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increased or decreased by credits, prorations and adjustments as provided
herein, shall be paid by Buyer to Sellers by payment of the Earnest Money
Deposit plus cash or confirmed federal wire transfer of immediately available
funds.
4. RIGHTS OF INSPECTION AND CANCELLATION
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A. INSPECTION PERIOD. For and in consideration of the
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Earnest Money Deposit, Buyer shall have a period of forty-five (45) days from
the Effective Date with respect to financial due diligence matters ("Financial
Diligence Period"), and a period of sixty (60) days from the Effective Date with
respect to all other matters ("Inspection Period"), during which time, Buyer,
and Buyer's counsel, accountants, agents and other authorized representatives
(collectively, "Authorized Agents"), shall be entitled to enter upon the
Properties for the purpose of inspecting and examining the Properties,
including, without limitation, conducting surveying, engineering and
environmental tests and studies, and any such other work as Buyer shall consider
appropriate. Buyer and its Authorized Agents shall have full and continuing
access to the Properties and all parts thereof and Sellers shall cooperate fully
with Buyer and its Authorized Agents in Buyer's inspection process. If Buyer, in
Buyer's sole discretion and opinion, is dissatisfied with the results of Buyer's
inspection of the Properties or any of the other items furnished by Sellers and
reviewed by Buyer, as set forth in this Section 4, Buyer may, by written notice
delivered to Sellers prior to
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the expiration of the Financial Diligence Period or the Inspection Period, as
applicable, terminate this Agreement, in which event the Earnest Money Deposit
and all interest earned thereon shall be immediately delivered to Buyer, Sellers
and Buyer shall have no further obligations hereunder (except as may otherwise
be provided in this Agreement) and this Agreement shall be null and void.
B. DOCUMENT REVIEW. Sellers agree to furnish to Buyer
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not later than ten (10) days after the Effective Date and allow Buyer and
Buyer's Authorized Agents, to inspect and make copies of:
(a) Surveys;
(b) Environmental reports;
(c) Property tax bills;
(d) Form of storage leases/agreements for the
Properties;
(e) Current rent rolls;
(f) Year-to-date income and expense statements;
(g) Summary of all capital expenditures of Sellers
relating to the Properties for the month
preceding the Effective Date;
(h) Copies of any pending litigation filed against
the Properties or against Sellers which could
adversely affect on the Properties; and
(i) The general ledgers for the Properties.
Seller shall also furnish to Buyer, if in Sellers'
possession:
(v) Notices or correspondence from governmental
entities with respect to the Properties;
(w) Copies of building plans and specifications and
certificate(s) of occupancy for the Properties;
(x) Business operation, business registration or any
similar licenses or permits issued by the city,
county and/or state in which the Properties are
located;
(y) Copies of all warranties or guarantees provided
to Sellers for any improvements to the
Properties; and
(z) Estoppel letters from all non-mini storage
warehouse tenants including, without limitation,
any office and retail space tenants
(a to i and v to z, collectively, "Documents"). Sellers shall also make
available to Buyer for review, at either the office of Sellers or at the
Properties, the originals of the Leases, and Buyer shall have the right to make
photocopies of the Leases.
C. ENVIRONMENTAL SITE ASSESSMENT. Buyer shall order
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current environmental site assessments for the Properties. In the event Buyer,
in Buyer's sole discretion, is dissatisfied with the results of the
environmental site assessment(s), Buyer may terminate this Agreement by written
notice delivered to Sellers at any time prior to the expiration of the
Inspection Period in which event the Earnest Money Deposit and all interest
earned thereon shall be immediately delivered to Buyer and neither Sellers or
Buyer shall have any further obligations hereunder (except as may be otherwise
provided herein) and this Agreement shall be null and void. If Buyer terminates
this Agreement, Buyer shall provide copies of the site assessments to Seller,
provided Seller reimburses Buyer for the cost thereof.
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D. INSPECTION OBLIGATION. Buyer and its Authorized
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Agents shall: (a) not disturb the Tenants or interfere with their use of the
Properties pursuant to their respective Leases; (b) not interfere with the
operation and maintenance of the Properties; (c) not damage any part of the
Properties or any personal property owned or held by any Tenant or any third
party; (d) not injure or otherwise cause bodily harm to Sellers, their agents,
contractors and employees or any Tenant; (e) promptly pay when due the costs of
all tests, investigations, and examinations done with regard to the Properties
with Buyer's authorization; (f) not permit any liens to attach to the Properties
by reason of the exercise of Buyer's rights hereunder; and (g) restore the
Properties to the condition in which the same was found before any such
inspections or tests were undertaken, normal wear and tear excepted.
E. SECURITIES LAW MATTERS. At Buyer's request, at any
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reasonable time after the Closing with reasonable prior notice, Sellers shall
provide to Buyer's designated independent auditor access to the books and
records of the Properties and all related information with respect to the
Properties for (i) the period for which Buyer or U-Store-It Trust is required to
have the Properties audited under the regulations of the Securities and Exchange
Commission ("SEC") and (ii) any subsequent period required to be presented in
the registration statement(s) and filings of U-Store-It Trust and Sellers shall
provide to such auditor a representation letter in substantially the form of
Exhibit "H" attached hereto in connection with the audit of the Properties in
accordance with generally accepted auditing standards. In addition, Sellers
shall have their accountants, at Buyer's expense and on terms and conditions
mutually acceptable to Sellers' accountants and Buyer, (x) assist in the
preparation of audited financial statements of Sellers with respect to the
Properties in order to generate audited financial statements and related audit
reports required to be included in registration statement(s) and filings with
respect to the Properties and (y) consent to use of such reformulated
statements.
F. CONFIDENTIALITY. Buyer acknowledges that any and all
----------------
of the Documents are proprietary and confidential in nature and are delivered to
Buyer solely to assist Buyer in determining the feasibility of purchasing the
Properties. Except as otherwise provided herein, Buyer agrees not to disclose
the Documents, or any of the provisions, terms or conditions thereof, to any
party outside of Buyer's organization except its Authorized Agents and to its
attorneys, accountants, lenders, or investors (collectively, the "Permitted
Outside Parties"). Buyer further agrees that the Documents shall be disclosed
and exhibited only to those persons within Buyer's organization, the Authorized
Agents or to the Permitted Outside Parties who are responsible for determining
the feasibility of Buyer's acquisition of the Properties and who have agreed to
preserve the confidentiality of such information as required herein. Buyer shall
return all of the Documents and any and all copies Buyer has made of the
Documents on the first to occur of (a) Buyer's election not to acquire the
Properties as provided herein or (b) at such time as this Agreement is
terminated for any reason. Notwithstanding anything to the contrary contained in
this Agreement (or in any document or instrument related to this Agreement), at
any time after the Effective Date, Buyer and U-Store-It Trust shall be permitted
to (i) disclose the existence of this Agreement and the matters set forth herein
in registration statement(s) and filings (as amended or supplemented from time
to time) with the SEC or as may be otherwise required under the federal
securities laws, and (ii) file this Agreement as an exhibit to such registration
statement(s) and any other filings required under the federal securities laws.
5. SURVEYS. Buyer shall order current surveys (collectively,
--------
"Surveys") of the Properties prepared by a surveyor licensed to practice in each
state where the Properties are situated, in accordance with the requirements and
standards of Buyer and Buyer's lender, if any, whether or not the Purchase Price
is to be paid all in cash pursuant to the terms of this Agreement, duly
certified to Buyer, Sellers, Buyer's lender, if any, and to the Title Company
(as
9
hereinafter defined) and its issuing agent and their respective successors and
assigns. Any objections to the Surveys, zoning matters or title based upon the
Surveys shall be deemed to be an objection to title as provided in Section 6
hereof.
6. TITLE COMMITMENTS AND POLICIES. Buyer shall order an update of
-------------------------------
title in order for the First American Title Insurance Company, Chicago, Illinois
("Title Company") to issue title commitments (collectively, "Commitments") for
the Properties. The Title Company will issue to Buyer at Closing ALTA Owner's
Title Insurance Policies ALTA 1970 Form B (amended 10/17/70 and 10/17/84) and
equivalent CLTA Owner's Title Insurance Policies, if available (if such form is
not available, then on such form which is acceptable to Buyer) (collectively,
"Title Policies"), in the amount of the Purchase Price for each Property
insuring Buyer's fee simple title to the Properties to be good, marketable and
indefeasible. The Commitments must include copies of all documents shown as
title exceptions in the Commitments ("Title Documents"). All matters shown on
the Surveys and the Title Documents which are not objected to by Buyer by
delivery of written notice to Sellers prior to the expiration of the Inspection
Period shall be conclusively deemed to be acceptable to Buyer. If Buyer has
given Sellers timely written notice of defect(s) which render the title
unacceptable to Buyer, in Buyer's sole discretion, then Sellers may elect to
agree to cure or eliminate such defects or to terminate this Agreement. Sellers
agree to remove by payment any delinquent installments of taxes, bonds or
assessments, judgment liens, income tax liens and other similar liens which can
be cured or removed by the payment of money or bonding. In the event that
Sellers do not cure or eliminate all timely raised title defects or objections
by the Closing to Buyer's satisfaction, then Buyer shall have the option of
either: (A) accepting the title "as-is," without reduction in the Purchase Price
and without claim against Sellers therefor or (B) canceling this Agreement, in
which event the Escrow Agent shall immediately deliver the Earnest Money Deposit
together with any interest earned thereon to Buyer, this Agreement shall be null
and void and Sellers and Buyer shall be released from all further obligations
under this Agreement except as may be otherwise set forth herein. Following the
Closing and the recording of the applicable closing documents, the Title Company
shall issue the Title Policies with such endorsements as are required by Buyer
and Buyer's lender. In the event the title insurance laws of the state in which
a Property is located do not authorize the issuance of an ALTA owner's title
insurance policy, the Title Policies shall include such other endorsements as
may be necessary to insure Buyer's title to the Properties in substantially the
same form as would be provided by an ALTA owners title insurance policy.
7. ASSIGNMENT. Buyer may freely assign this Agreement to any entity
-----------
in which the general partner of Buyer has a controlling interest.
8. TIME OF CLOSING. The Closing ("Closing") shall be on or by thirty
----------------
(30) days from the end of the Inspection Period or any extension thereof agreed
to by the parties ("Closing Date"), time being of the essence; provided,
however, in the event the date for the Closing should fall on a Friday,
Saturday, Sunday or Monday, the Closing Date shall be on the following Tuesday.
Notwithstanding the foregoing, Sellers may extend the Closing Date to February
7, 2006, upon written notice delivered to Buyer no later than the expiration of
the Inspection Period.
9. POSSESSION. Possession and occupancy of the Properties shall be
-----------
delivered as of the Closing Date, unless otherwise provided herein.
10. REPRESENTATIONS AND COVENANTS OF SELLER. Each Seller expressly
----------------------------------------
covenants, represents and warrants to Buyer as to itself and as to each Property
in which such Seller has an interest, as follows:
10
A. Seller is the fee simple owner of the Property.
B. Seller is a duly formed and validly existing entity
in good standing under the laws of its state of organization and is qualified to
do business in the state(s) in which it is legally required to be so qualified.
C. Seller has full power and authority to execute and
deliver this Agreement and has taken all necessary action and obtained all
necessary consents to authorize the execution, delivery and performance of this
Agreement and all documentation required to effectuate the full intent and
purposes of this Agreement, and this Agreement is enforceable against Seller.
D. There is no legal action pending, or to the knowledge
of Sellers, threatened against Sellers, which relates to or affects the
Properties or otherwise adversely affects Sellers' ability to perform Sellers'
obligations hereunder.
E. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under federal or state bankruptcy laws is pending
against or contemplated by Seller.
F. Seller is not a foreign person within the meaning of
Section 1445(f) of the Internal Revenue Code of 1986, as amended.
G. The rent rolls and operating statements and other
financial information relating to the Properties delivered or to be delivered to
Buyer pursuant to this Agreement are true and correct in all material respects
as of the date thereof. To Sellers' knowledge, documentation and information
which is not financial in nature which has been or will be delivered or made
available to Buyer and/or Buyer's Authorized Agents for review during the
Inspection Period is true and correct in all material requests.
H. The copies of the Contracts delivered or to be
delivered to Buyer pursuant to this Agreement are true and correct in all
material respects.
I. The Leases listed on the rent rolls are all of the
leases affecting Seller's Properties, and the copies thereof which have been or
will be delivered to or made available to Buyer pursuant to this Agreement are
true and correct in all material respects.
J. Except as to be disclosed to Buyer in writing within
ten (10) days after the Effective Date, Seller has not distributed or authorized
the distribution of any localized, mass or direct marketing mailing which
provides any coupons, discounts or other rental concessions, rebates or free
rent (collectively, "Concessions") for any new or existing tenants of any
Property which would be effective after the Closing Date. Sellers shall not,
without the consent of Buyer, distribute or authorize the distribution of any
localized, mass or direct marketing mailing which provide any Concessions for
any new or existing tenants of any Property which would be effective after the
Closing Date.
K. Seller has not received any written notice of any
violation of any law, zoning ordinance, municipal ordinance, code, or regulation
(including any environmental law or regulation) affecting the Properties which
has not been cured, nor has Seller received any written notice of any existing
or threatened condemnation action involving any such Properties.
11
L. Seller has all right and power to cause the sale,
transfer and assignment of the Leases to Buyer and to Seller's knowledge, (i)
Seller has duly and punctually kept, observed and performed all of the material
obligations, terms, covenants, conditions and warranties of the Leases to be
kept, observed and performed; (ii) the Leases are valid and in full force and
effect and have not been amended except in the ordinary course of business;
(iii) Seller has not collected any rent for more than one (1) month in advance
under any Leases which are in effect on the Closing Date except as disclosed in
the rent rolls provided to Buyer; and (iv) except for written Leases, there are
no other leases of the Properties.
M. From the date hereof until Closing, Seller shall: (a)
maintain in accordance with Seller's past practice complete and accurate books,
accounts and records relating to the Properties; (b) continue to maintain and
operate the Properties in accordance with Seller's past practices and maintain,
renew or enter into new leases and contracts, including Yellow Pages contracts,
in furtherance thereof; (c) maintain the Properties in good order and condition
and not permit the Properties to adversely change their present condition; (d)
comply with the terms and provisions of all Leases, Contracts and other
obligations of Sellers relating to the Properties; and (e) only enter into
leases with new tenants of the Properties upon terms that are consistent with
the terms of the Leases in effect on the date of this Agreement.
N. Sellers shall exercise reasonable, good faith effort
to obtain from the tenants under any non-storage leases of 5,000 or more square
feet estoppel certificates in form prepared or approved by, Buyer.
O. To Seller's knowledge, no adverse soil conditions or
hazardous or toxic substances exist on the Properties, the Properties have not
in the past been used, are not presently being used and will not in the future
(for so long as Seller owns the same) be used for the handling, storage,
transportation or disposal of hazardous or toxic materials of any kind or
nature.
All representations, covenants and warranties of Sellers set forth
in this Agreement and the conditions and circumstances contained herein shall be
effective, valid, true and correct on the Closing Date and shall survive the
Closing for six (6) months. Buyer shall have the right to terminate this
Agreement and receive a refund of its Earnest Money Deposit together with any
interest earned thereon from Escrow Agent if any of the representations,
covenants and/or warranties are not valid, true and correct as of the Closing
Date, in which event this Agreement shall be deemed null and void and Sellers
and Buyer shall be released from all obligations under this Agreement, except as
may be otherwise set forth herein.
11. REPRESENTATIONS AND COVENANTS OF BUYER. Buyer expressly
---------------------------------------
covenants, represents and warrants to Sellers, as follows:
A. Buyer is a duly formed and validly existing limited
partnership in good standing under the laws of the State of Delaware.
B. Buyer has full power and authority to execute and
deliver this Agreement and has taken all necessary action and obtained all
necessary consents to authorize the execution, delivery and performance of this
Agreement and all documentation required to effectuate the full intent and
purposes of this Agreement, and this Agreement is enforceable against Buyer.
C. There is no legal action pending or to Buyer's
knowledge threatened
12
against Buyer which would materially affect the ability of Buyer to carry out
the transactions contemplated by this Agreement.
D. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under federal or state bankruptcy laws is pending
against or contemplated by Buyer.
Any representation or warranty made "to Seller's knowledge," or
words of similar meaning, with respect to representations and warranties made
herein by Sellers shall not be deemed to imply any duty of inquiry. For purposes
of this Agreement, the term "Seller's knowledge" shall mean and refer only to
actual knowledge of Rory Williams and shall not be construed to refer to the
knowledge of any member, manager, partner, shareholder, officer, director,
agent, employee or representative of Sellers, or any affiliate of Sellers, or to
impose upon Rory Williams any duty to investigate the matter to which such
actual knowledge or the absence thereof pertains, or to impose upon Rory
Williams any individual personal liability. Buyer agrees to look solely to
Sellers with respect to any alleged breach of a representation or warranty.
All representations, covenants and warranties of Buyer set forth in
this Agreement and the conditions and circumstances contained herein shall be
effective, valid, true and correct at the date of and shall survive the Closing
for six (6) months.
11A. REPRESENTATIONS AND WARRANTIES -- GENERAL. If, after the date
------------------------------------------
of this Agreement, either party discovers any material inaccuracy in any
representation or warranty under this Agreement which materially affects the
value of any Property, whether made by that party or the other party, the
discovering party shall promptly notify the other party in a written notice
setting forth the particular representation or warranty which is inaccurate, and
the nature of the inaccuracy discovered. The party in whose favor the
representation or warranty runs ("Benefited Party") shall have the right to
terminate this Agreement within ten (10) calendar days of learning of such
inaccuracy by giving notice to the other party ("Representing Party"). Failure
of the Benefited Party to terminate this Agreement within such ten (10) day
period shall be deemed a waiver of the right to terminate based upon such
inaccuracy. If the Representing Party had no knowledge of the inaccuracy on the
date of execution of this Agreement, then the Benefited Party's sole remedy
shall be to terminate this Agreement, and if the Benefited Party does terminate
this Agreement, the Earnest Money Deposit and any interest earned thereon shall
be returned to Buyer, and the parties shall have no further obligation to each
other except as otherwise provided herein. If the Representing Party did have
knowledge of the inaccuracy on the date of execution of this Agreement, then the
Benefited Party shall have all other rights and remedies afforded by this
Agreement (a "Knowing Misrepresentation").
12. COMMUNICATIONS. All notices, demands, requests, consents,
---------------
approvals, waivers or other communications shall be in writing and shall be
deemed to be delivered (i) when mailed, upon receipt or refusal thereof, (ii)
when delivered by a nationally recognized overnight courier service, upon
confirmation of delivery by the courier service or refusal thereof or (iii) when
sent by confirmed telecopy, upon receipt, and addressed to the parties as
follows:
13
If to Sellers, to the address as follows:
Rory Williams
Leasco
2755 Bristol Street, #140
Costa Mesa, California 92626
Phone: (714) 556-5080
Fax: (714) 556-5087
E-mail: rory@leasco.net
with a copy to:
Allen Hine
Brodowsky, Brodowsky and Hine
3126 "0" Street
Sacramento, California 95816
Phone: (916) 457-8800 Ext. 13
Fax: (916) 456-8875
E-mail: hinead@pacbell.net
Following Closing, Sellers' forwarding address shall be:
Rory Williams
Leasco
2755 Bristol Street, #140
Costa Mesa, California 92626
Phone: (714) 556-5080
Fax: (714) 556-5087
E-mail: rory@leasco.net
If to Buyer, to the address as follows:
Patricia A. Rocewicky, Assistant Vice President and Secretary
6745 Engle Road, Suite 300
Cleveland, Ohio 44130
Phone: (440) 234-0700
Fax: (440) 234-5899
E-mail: par@u-store-it.com
with a copy to:
Kurt von Boeselager
Hurtuk & Daroff Co., L.P.A.
6120 Parkland Boulevard, Suite 100
Cleveland, Ohio 44124
Phone: (440) 605-6667
Fax: (440) 605-6666
E-mail: kvb@hurtukdaroff.com
13. EFFECTIVE DATE OF AGREEMENT. The effective date ("Effective
----------------------------
Date") of this Agreement shall be the last date that this Agreement is executed
either by Sellers or by Buyer.
14. CONDITION. The Properties are being sold on an "AS IS, WHERE IS
----------
AND WITH ALL FAULTS" basis, and except as expressly set forth in this Agreement,
Seller expressly
14
disclaims all warranties and has made no representations or warranties of any
kind, express or implied, concerning the Property or the Documents or any other
matters.
15. SPECIAL ASSESSMENT LIENS. Certified, confirmed and ratified
-------------------------
special assessment liens, or liens for work substantially completed, but not yet
certified, confirmed or ratified, as of the Closing Date are to be paid at the
Closing by Sellers.
16. MECHANIC'S LIENS. The Properties are being sold free and clear
-----------------
of all mechanic's liens for work done or material furnished in improving the
Properties. If any work or improvements have been completed less than ninety
(90) days prior to Closing, Sellers will furnish security against mechanic's
liens or evidence of payment of liens or acceptable release or waiver of liens.
At Closing, Sellers shall deliver an affidavit to the Title Company as to the
items described in this Section 16, sufficient in form and substance to permit
the Title Company to issue the Title Policies to Buyer without exception for
mechanic's liens.
17. CONVEYANCE. Sellers shall convey title to the Properties to
-----------
Buyer by Special or Limited Warranty Deeds (collectively, "Deeds") subject only
to: (i) zoning and/or restrictions and prohibitions imposed by governmental
authorities to which Buyer has not objected; (ii) restrictions and easements to
which Buyer has not objected; and (iii) taxes and assessments which are a lien,
but not yet due and payable.
18. DOCUMENTS FOR CLOSING. Not later than ten (10) days prior to the
----------------------
Closing, Sellers shall deliver to Buyer and Buyer's attorney, a copy of the
proposed Deeds for review and approval. In addition, not later than three (3)
days prior to the Closing Date, Sellers shall deposit in escrow with the Escrow
Agent, the following executed documents:
(1) Deeds in the form approved by Buyer and Buyer's
attorney;
(2) Bill of Sale and General Assignments in the form of
Exhibit "B" attached hereto and made a part hereof;
-----------
(3) Domestic Owner's Affidavits in the form of Exhibit "C"
-----------
attached hereto and made a part hereof or such other
form as approved by the Title Company;
(4) Gap Affidavits as required by the Title Company;
(5) FIRPTA Affidavits in the form of Exhibit "D" attached
hereto and made a part hereof; -----------
(6) Counterparts of the Assignment and Assumption of Leases
in the form of Exhibit "E" attached hereto and made a
part hereof; -----------
(7) Counterparts of the Assignment and Assumption of
Contracts in the form of Exhibit "F" attached hereto and
made a part hereof; -----------
(8) Counterparts of the Non-Competition Agreements in the
form of Exhibit "G" attached hereto and made a part
-----------
hereof executed by all of the parties required to sign
pursuant to Section 28 of this Agreement;
(9) Estoppel certificates from non-mini storage tenants,
obtained by Sellers pursuant to Section 10(N) hereof.
Not later than twenty (20) days prior to Closing,
Sellers shall exercise food faith reasonable efforts to
deliver copies of the signed estoppels to Buyer for
Buyer's approval;
(10) Any documents required by the Title Company in order for
the Title Policies to be issued to Buyer in the form
required by this Agreement; and
(11) Audit Letter in the form of Exhibit "H" attached hereto
and made a part hereof. -----------
Not later than three (3) days prior to the Closing Date, Buyer shall
deposit in escrow with the Escrow Agent, the following executed documents:
15
(1) Counterparts of the Assignment of and Assumption of
Leases in the form of Exhibit "E";
-----------
(2) Counterparts of the Assignment and Assumption of
Contracts in the form of Exhibit "F"; and
-----------
(3) Counterparts of the Non-Competition Agreement in the
form of Exhibit "G."
------------
19. EXPENSES.
---------
A. Buyer shall pay the following costs:
(1) One-half (1/2) of the escrow
fee.
(2) The cost of recording, and any
transfer or conveyance tax
charged on or for the recording,
of the Deeds or other title
conveyance documents.
(3) Subject to Sellers'
contributions as set forth in
Section 19(B)(2) below, the cost
of the title examinations, the
Title Policies, the
environmental site assessments
and the Surveys.
(4) All other normal and customary
closing costs other than those
paid by Sellers as set forth in
Section 19(B) below.
B. In addition to any other costs to be borne
by Sellers as provided in this Agreement,
Sellers shall pay the following:
(1) One-half (1/2) of the escrow
fee.
(2) The cost of the Title Policies,
but only to the extent of the
cost of CLTA or equivalent title
policies.
(3) The cost of recording any
corrective instruments.
20. PRORATION OF TAXES (REAL AND PERSONAL); UTILITIES. Escrow Agent
--------------------------------------------------
shall prorate all taxes and assessments as of the date of Closing according to
the calendar year, using the last available County Treasurer's tax duplicate for
the purpose of closing the transaction. When the actual amount of such taxes
becomes known, Sellers and Buyer shall adjust the actual tax proration between
themselves. Any assessments, reassessed assessments and/or respread taxes upon
the Properties shall be paid out of Sellers' funds at Closing. Sellers and Buyer
shall work together to notify utility companies of the Closing and transfer all
utilities, including telephone numbers, to Buyer's name as of the Closing Date.
Sellers shall provide Buyer with a letter of authorization in customary form to
assist with this process. Sellers shall be entitled to a refund of all utility
deposits and shall pay all utilities up to and including the Closing. Buyer
shall be responsible for all utilities from and after the Closing.
21. PRORATION OF RENTS. Sellers shall pay or cause to be paid to
-------------------
Buyer, in cash at Closing, the amount of the Security Deposits and prepaid rents
paid to Sellers by Tenants as of the proration date specified in Section 22. The
prorations shall be computed on a monthly basis based upon the actual number of
days in the calendar month. Except as hereinafter provided, no proration shall
be made for rents delinquent as of the Closing Date ("Delinquent Rents"). At
16
Closing, Buyer shall pay Sellers an amount which is equal to ninety percent
(90%) of Delinquent Rents of Non-Defaulting Tenants which are delinquent thirty
(30) days or less. As used herein, Non-Defaulting Tenants means tenants who are
not more than thirty (30) days delinquent in the payment of rent as of the
Closing Date. Any Delinquent Rents collected after Closing shall belong
exclusively to Buyer and all rights to pursue collection of such amounts shall
vest solely in Buyer.
22. PRORATION DATE. Taxes and assessments, insurance, assumed
---------------
interest, rents, and other expenses and revenue of the Properties shall be
prorated through 11:59 P.M. on the day prior to Closing.
23. ESCROW. Escrow Agent shall hold the Earnest Money Deposit in
-------
escrow and disburse it in accordance with the terms and conditions of this
Agreement. In the event that a dispute shall arise between any of the parties to
this Agreement as to the proper disbursement of the Earnest Money Deposit, the
Escrow Agent may, at its option: (i) take no action and hold all funds (and
documents, if any) until agreement is reached between the disputing parties, or
until a judgment has been entered by a court of competent jurisdiction and the
appeal period has expired thereon, or if appealed, then until the matter has
been finally concluded, and then to act in accordance with such final judgment
or (ii) institute an action for declaratory judgment, interpleader or otherwise
joining all affected parties and thereafter complying with the ultimate judgment
of the court with regard to disbursement of the deposit and disposition of
documents, if any. In the event of any suit between Buyer and Sellers wherein
the Escrow Agent is made a party by virtue of acting as Escrow Agent hereunder,
or in the event of any suit wherein Escrow Agent interpleads the subject matter
of this escrow, the Escrow Agent shall be entitled to recover reasonable
attorneys' fee and costs incurred as Escrow Agent, including costs and
attorney's fees for appellate proceedings, if any, said fees and costs to be
charged and assessed as court costs in favor of the prevailing party. The Escrow
Agent shall not be liable to either party for misdelivery to Buyer, Sellers or
third parties, unless such misdelivery is due to gross negligence or wanton and
willful misconduct on the part of the Escrow Agent.
24. ATTORNEY'S FEES AND COSTS. In connection with any litigation
--------------------------
arising out of this Agreement, the prevailing party shall be entitled to recover
all costs incurred including reasonable attorneys' fees for services rendered in
connection with such litigation, appellate proceedings and post-judgment
proceedings. Notwithstanding the foregoing, a party shall not be considered to
be the prevailing party for the purposes of this paragraph 24, if such party
recovers less than the settlement amount offered by the other party prior to a
verdict.
25. BROKERAGE. Buyer and Sellers each represent and warrant to the
----------
other that neither has had any dealings with any person, firm, broker or finder
in connection with the negotiations of this Agreement and/or the consummation of
the purchase and sale contemplated hereby other than Mark L. Hansen of Hansen
Financial Group ("Broker"), and no other broker or person, firm or entity is
entitled to any commission or finder's fee in connection with this Agreement or
this transaction. Buyer and Sellers do each hereby indemnify, defend, protect
and hold the other harmless from and against any costs, expenses or liability
for compensation, commission or charges which may be claimed by any other
broker, finder or other similar party by reason of any actions of the
indemnifying party. Sellers shall pay to Broker the commission when, as and if
the transaction contemplated hereby actually closes.
26. CONDEMNATION AND CASUALTY.
--------------------------
A. CONDEMNATION. Sellers shall promptly notify Buyer of
-------------
any threatened or commenced condemnation or eminent domain proceedings affecting
any Property. In the
17
event that all or any "substantial portion" of a Property (as defined below in
this Section 26) shall be taken in condemnation or by conveyance in lieu thereof
or under the right of eminent domain or formal proceedings have been initiated
therefor after the Effective Date and before the Closing Date, then at the
election of Buyer by written notice thereof to Sellers within ten (10) days
after Sellers notify Buyer of the condemnation or eminent domain proceedings,
this Agreement shall be terminated as to the applicable Property (but not as to
any other Property), in which event the Purchase Price shall be reduced by the
allocable portion thereof attributable to such Property. In the event Buyer
fails to timely deliver written notice of termination as described above, Buyer
shall be deemed to have elected to proceed to close the transaction contemplated
herein pursuant to the terms hereof, in which event Sellers shall deliver to
Buyer at the Closing any proceeds actually received by Sellers attributable to
such Property from such condemnation or eminent domain proceeding or conveyance
in lieu thereof and assign to Buyer Sellers' rights to any such proceeds not yet
received by Sellers, and there shall be no reduction in the allocated portion of
the Purchase Price for such Property. If the taking does not involve a
"substantial portion" of the Property, as herein defined, then Buyer shall be
obligated to close the transaction contemplated herein according to the terms
hereof, notwithstanding such taking, and Sellers shall deliver to Buyer at the
Closing any proceeds actually received by Sellers attributable to such Property
from such condemnation or eminent domain proceeding or conveyance in lieu
thereof and assign to Buyer Sellers' rights to any such proceeds not yet
received by Sellers, and there shall be no reduction in the allocated portion of
the Purchase Price for such Property.
B. CASUALTY. Sellers shall promptly notify Buyer of any
---------
casualty affecting any Property. In the event that all or any "substantial
portion" of a Property shall be damaged or destroyed by fire or other casualty
after the Effective Date and before the Closing Date, Buyer may, at its option,
elect to withdraw such Property from this Agreement by written notice thereof to
Sellers within ten (10) days after Sellers notify Buyer of the casualty and the
availability and amount of insurance proceeds. In the event Buyer does not elect
to terminate this Agreement as to such Property as described above, Buyer shall
proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Sellers shall deliver to Buyer at the Closing any
insurance proceeds actually received by Sellers attributable to such Property
from such casualty, or assign to Buyer all of Sellers' right, title and interest
in any claim under any applicable insurance policies in respect of such
casualty, together with payment to Buyer of an amount equal to the
deductible(s), if any, applicable to such loss under the insurance policy(ies),
and there shall be no reduction in the allocated portion of the Purchase Price
for such Property. If the casualty loss does not involve a "substantial portion"
of the Property, as defined herein, then Buyer shall be obligated to close the
transaction contemplated herein according to the terms hereof, notwithstanding
such casualty loss, and Sellers shall either (i) deliver to Buyer at the Closing
any insurance proceeds actually received by Sellers attributable to the Property
from such casualty, or (ii) assign to Buyer all of Sellers' right, title, and
interest in any claim under any applicable insurance policies in respect of such
casualty, together with payment to Buyer of an amount equal to the
deductible(s), if any, applicable to such loss under the insurance policy(ies),
and there shall be no reduction in the allocated portion of the Purchase Price
for such Property.
C. SUBSTANTIAL PORTION DEFINED. For the purposes of this
----------------------------
Section 26, a taking of or casualty loss to a "substantial portion" of a
Property shall be deemed to include any taking or casualty loss which (i) is
equal to or greater than (A) 10% of the value of the Property as established by
allocated portion of the Purchase Price for such Property, or (B) 10% of the
aggregate gross number of square feet contained in the storage facilities
constituting such Property, or (ii) involves a taking that has a material
adverse effect on Buyer's
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use of the remainder of the Property, by materially adversely affecting the
adequacy of utilities, parking and/or access to the Property, the location or
size of signage for the Property, or the zoning compliance thereof.
D. RISK OF LOSS. Subject to the foregoing provisions of
-------------
this Section 26, risk of loss until Closing shall otherwise be borne by Sellers.
27. DEFAULT.
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A. SELLERS' DEFAULT; BUYER'S SOLE REMEDIES. If, after
----------------------------------------
written demand, any Seller fails to consummate this Agreement in accordance with
its terms (other than by reason of (i) Buyer's breach of any of its
representations or warranties contained in this Agreement; (ii) Buyer's
continuing default of any of its material covenants hereunder after ten (10)
days' prior written notice of such default; or (iii) a termination of this
Agreement by Sellers or Buyer pursuant to a right to do so expressly provided
for in this Agreement, except by reason of a default by either party, Buyer may
either (1) terminate this Agreement by written notice to Sellers, in which event
the Earnest Money Deposit, together with interest earned thereon shall be
returned to Buyer, or (2) pursue specific performance of this Agreement. In the
event of (a) any Seller's continuing default after Closing in any of its
representations, warranties or covenants in this Agreement which survive Closing
or any documents delivered by any Seller at Closing, and such default continues
for more than thirty (30) days after written notice of such default from Buyer
or (b) a Knowing Misrepresentation by Seller, Buyer shall be entitled to pursue
its remedies available at law or in equity. In no event shall Seller be liable
for any delay damages, lost profits or consequential damages.
B. BUYER'S DEFAULT; SELLERS' SOLE REMEDIES. If after
----------------------------------------
written demand, Buyer fails to consummate this Agreement in accordance with its
terms (other than by reason of (i) Sellers' breach of any of its representations
or warranties contained in this Agreement; (ii) Sellers' continuing default of
any of its material covenants after ten (10) days' prior written notice of such
default; or (iii) a termination of this Agreement by Sellers or Buyer pursuant
to a right to do so expressly provided for in this Agreement, except by reason
of a default by either party, Sellers may receive and retain the Earnest Money
Deposit, together with interest earned thereon as liquidated damages (and not as
a penalty) for breach of this Agreement. Such amount is agreed upon by and
between Sellers and Buyer as liquidated damages, due to the difficulty and
inconvenience of ascertaining and measuring actual damages, and the uncertainty
thereof. In the event of (a) Buyer's continuing default after Closing in any of
its representations, warranties or covenants in this Agreement which survive
Closing or any documents delivered by Buyer at Closing, and such default
continues for more than thirty (30) days after written notice of such default
from Sellers or (b) a Knowing Misrepresentation by Buyer, Sellers shall be
entitled to pursue any remedies available at law or in equity. In no event shall
Buyer be liable for any delay damages, lost profits or consequential damages.
28. COVENANT NOT TO COMPETE. Sellers and those parties who are
------------------------
executing this Agreement to evidence their participation in this covenant, agree
to enter into the Non-Competition Agreement at the time of Closing.
29. TIME. Time periods herein of less than six (6) days shall, in
-----
the computation, exclude Saturdays, Sundays and state or national legal holidays
and any time period provided for herein which shall end on Saturday, Sunday or
state or national legal holiday shall extend to 5:00 P.M. Eastern Time of the
next business day.
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30. PERSONS BOUND. The benefits and obligations of the covenants
--------------
herein shall inure to and bind the respective successors and assigns (where
assignment is permitted) of the parties hereto. Whenever used, the singular
number shall include the plural, the plural the singular and the use of any
gender shall include all genders.
31. FINAL AGREEMENT. This Agreement represents the final agreement
----------------
of the parties and no agreements or representations, unless incorporated into
this Agreement, shall be binding on any of the parties. Typewritten provisions
shall supersede printed provisions and handwritten provisions shall supersede
typewritten and/or printed provisions. Such handwritten or typewritten
provisions as are appropriate may be inserted on the face of this Agreement or
attached hereto as an addendum.
32. GOVERNING LAW. This Agreement shall be governed and construed in
--------------
all respects with the laws of the State of California.
33. EXECUTION AND COUNTERPARTS; FACSIMILES. This Agreement may be
---------------------------------------
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement. This Agreement shall
not bind Sellers or Buyer as an offer or an agreement unless signed by the
person or party sought to be bound. Facsimile transmissions and other copies of
executed documents shall serve the same purpose as originals in connection with
the terms of this Agreement and any notices required to be or given hereunder
may be delivered by facsimile transmission in the manner provided in Section 12.
The transmittal of an unexecuted draft of this document for purposes of review
shall not be considered an offer to enter into an agreement.
34. AMENDMENT. This Agreement may not be modified or amended, except
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by an agreement in writing signed by Sellers and Buyer. The parties may waive
any of the conditions contained herein or any of the obligations of the other
party hereunder, but any such waiver shall be effective only if in writing and
signed by the party waiving such conditions or obligations.
35. REMOVAL OF PROPERTIES FROM MARKET. Commencing with the Effective
----------------------------------
Date, Sellers shall remove the Properties from the market and terminate
negotiations for the sale of the Properties with all parties other than Buyer.
36. WAIVER OF TRIAL BY JURY. To the extent permitted by applicable
------------------------
law, Sellers and Buyer waive all right to trial by jury in any claim, action,
proceeding or counterclaim by either Sellers or Buyer against each other or any
matter arising out of or in any way connected with this Agreement.
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BUYER:
U-STORE-IT, L.P.
a Delaware limited partnership
By: U-Store-It Trust, its general partner
By: /s/ Tedd Towsley
---------------------------------------
Tedd Towsley
Vice President and Treasurer
Date of Execution by Buyer: 10/3/05
----------------
SELLERS:
CROWNRIDGE STORAGE PORTFOLIO, LLC
a(n) ___________________ limited liability company
By: /s/ Dale A. Williams 9/27/05
---------------------------------------
Its: Managing Member
---------------------------------------
WILLIAMS STORAGE PORTFOLIO III, LLC
a(n) ___________________ limited liability company
By: /s/ Dale A. Williams 9/27/05
---------------------------------------
Its: Managing Member
---------------------------------------
Date of Execution by Sellers:
--------------
PERSONS EXECUTING THIS AGREEMENT TO
EVIDENCE THEIR AGREEMENT WITH THE
TERMS OF SECTION 28
/s/ Dale A. Williams 9/27/05
--------------------------------------------
DALE A. WILLIAMS
/s/ Rory Williams
--------------------------------------------
RORY WILLIAMS
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