EXHIBIT 10.13
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of February 5, 2004,
by and between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability
company ("Seller") and JDA SOFTWARE GROUP, INC., a Delaware corporation
("Purchaser").
In consideration of this Agreement, Seller and Purchaser agree as
follows:
1. SALE OF SUBJECT PROPERTY. Seller agrees to sell to Purchaser,
and Purchaser agrees to buy from Seller, all of Seller's right, title and
interest in and to the following property (collectively, "Subject Property"):
(a) REAL PROPERTY. Fee simple interest in that certain
parcel of real estate legally described on Exhibit A attached hereto
and made a part hereof (the "Land"); together with (i) all building
structures, improvements and fixtures owned by Seller located on the
Land, (the "Improvements"); and (ii) all rights, privileges, servitudes
and appurtenances thereunto belonging or appertaining (the "Real
Property").
(b) PERSONAL PROPERTY AND INTANGIBLES. All of the
equipment and personal property owned by Seller and used in the
operation of the Real Property, if any, and made a part hereof and the
right to use the name "IDA Corporate Center" and other business or
trade names associated with the Subject Property (excluding, any name
containing the name "Opus"), to the extent the same are assignable
(collectively, "Personal Property").
(c) LEASES. Seller's interest as landlord in and to the
leases described on Exhibit B attached hereto and made a part hereof,
together with all amendments or modifications thereto (collectively,
"Leases," herein the Lease described on Exhibit B with JDA Software
Group, Inc. will be referred to as the "JDA Lease" and the Lease
described on Exhibit B with Trapeze Software, Inc. will be referred to
as the "Trapeze Lease"). The McLeod Lease (as defined in Section 26
hereof) will terminate on January 31, 2004 pursuant to the McLeod
Termination Agreement (as defined in Section 26 hereof) and will not be
assigned, sold or transferred to Purchaser.
(d) PERMITS. Seller's interest in and to the licenses,
permits, certificates of occupancy described on Exhibit D attached
hereto and made a part hereof, to the extent, if any, that the same are
in Seller's possession and are assignable (collectively, "Permits").
(e) SERVICE CONTRACTS. Seller's interest in and to the
existing service and maintenance contracts described on Exhibit E
attached hereto and made a part hereof, together with all amendments or
modifications thereto ("Service Contracts"), subject to this Section
1(e). On or before the Contingency Date (defined below), Purchaser
shall advise Seller, in writing, of any Service Contracts that
Purchaser desires to be assigned to and assumed by Purchaser at Closing
(as such term is defined in Section 8(a) hereof). Seller shall then
cause any Service Contracts that Purchaser does not elect to assume
(i.e.,
any Service Contracts not set forth in the aforesaid written notice
from Purchaser) to be terminated prior to Closing, provided that Seller
has reasonably sufficient notice to allow for timely termination of
such Service Contracts. Failure by Purchaser to notify Seller, in
writing, prior to the Contingency Date, shall constitute an irrevocable
election by Purchaser to have all of the Service Contracts terminated
by Seller prior to Closing.
(f) WARRANTIES. Seller's interest in and to all unexpired
warranties and guaranties (i) given or assigned to, or benefiting,
Seller, the Real Property or the Personal Property, (ii) regarding the
acquisition, construction, design, use, operation, management or
maintenance of the Real Property or the Personal Property, and (iii)
described on Exhibit F attached hereto and made a part hereof, to the
extent that the same are in Seller's possession and are assignable
("Warranties").
(g) PLANS. A limited perpetual license, as hereinafter
described, to review and use a copy of the final plans and
specifications (excluding shop drawings) relating to the construction
of the Improvements in Seller's or the property manager's possession
("Plans"); provided, however, neither Purchaser nor its successors or
assigns may use the Plans for any purpose other than the repair,
maintenance or restoration of the Improvements without the prior
written consent of Seller, and Purchaser hereby agrees to indemnify,
defend and hold harmless Seller and its affiliates from and against any
unauthorized use of the Plans, which obligation shall survive Closing.
Seller reserves the right to use the Plans for any purpose.
2. PURCHASE PRICE. Purchaser shall pay to Seller, as
consideration for the purchase of the Subject Property, the sum ("Purchase
Price") of Twenty- Three Million Eight Hundred Thirty-Six Thousand and 00/100
Dollars ($23,836,000.00). The Purchase Price shall be payable as follows:
(a) INITIAL EARNEST MONEY DEPOSIT. Upon the execution of
this Agreement by Seller and Purchaser, Purchaser shall deposit the sum
of Two Hundred Thirty-Eight Thousand and 00/100 Dollars ($238,000.00)
(the "Initial Earnest Money") with the escrow department of First
American Title Insurance Company, 4801 East Washington, Suite 110,
Phoenix, Arizona 85034 ("Title Company") pursuant to an escrow
agreement in substantially the form of Exhibit G attached hereto and
made a part hereof (the "Escrow Agreement").
(b) ADDITIONAL EARNEST MONEY DEPOSIT. Within two (2) days
after the Contingency Date, provided that this agreement has not been
terminated as set forth in Section 3 hereof on or before the
Contingency Date, Purchaser shall deposit the additional sum of One
Million Two Hundred Sixty-Two Thousand and 00/100 Dollars
($1,262,000.00) (the "Additional Earnest Money") with the escrow
department of the Title Company. Upon such deposit, the Title Company
shall issue its written acknowledgment of receipt as required under the
Escrow Agreement. The Initial Earnest Money and Additional Earnest
Money and all interest earnings thereon are collectively referred to
herein as the "Earnest Money". The Earnest Money shall be paid to
Seller at Closing as a credit against the Purchase Price.
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(c) BALANCE OF PURCHASE PRICE. The balance of the
Purchase Price, plus or minus prorations and other adjustments, if any,
shall be due at Closing. Purchaser shall pay such balance to Seller, or
at the direction of Seller, by wire transfer of immediately available
funds.
3. CONDITIONS PRECEDENT TO CLOSING. Purchaser's obligation to
consummate the transaction contemplated by this Agreement shall be subject to
satisfaction or waiver of each of the following conditions ("Conditions
Precedent") on or before the date which is thirty (30) days following the date
of this Agreement ("Contingency Date"):
(a) TITLE/SURVEY. Within ten (10) days after the date
hereof, Seller will furnish to Purchaser (i) a current title commitment
("Commitment") for an owner's title policy issued by the Title Company
showing title in Seller (with copies of all underlying title documents
listed in the Commitment other than any financing documents encumbering
the Real Property), (which Commitment is in a nominal amount, but shall
be increased to the Purchase Price at Closing), and (ii) a survey
("Survey") for the Real Property prepared in accordance with the
Minimum Standard Detail Requirements for Class A Land Title Surveys
(jointly established by ALTA/ACSM as revised in 1999) and certified to
Purchaser, Seller and the Title Company. If the Survey discloses survey
defects or if the Commitment shows exceptions which defects or
exceptions are not acceptable to Purchaser (collectively, "Unpermitted
Encumbrances"), then Purchaser shall notify Seller, in writing, on or
before the date which is five (5) days prior to the Contingency Date,
specifying the Unpermitted Encumbrances, and, prior to the Contingency
Date, Purchaser shall have received assurances satisfactory to
Purchaser, in its reasonable discretion, that the Unpermitted
Encumbrances will be removed or endorsed over on or before Closing. Any
matter shown on the Commitment or the Survey and not objected to by
Purchaser in the manner provided above shall be a permitted
encumbrance.
(b) DUE DILIGENCE MATERIALS; TESTS. Upon execution of
this Agreement Seller has delivered to Purchaser true and correct
copies of all Leases, Permits, Service Contracts, Warranties, Plans and
any environmental assessments and soils reports in Seller's possession
or control with respect to the Subject Property, for Purchaser's review
and analysis. Seller shall allow Purchaser and Purchaser's officers,
employees, agents, attorneys, architects and engineers access to the
Real Property, subject to the rights of the tenants under the Leases
(collectively, "Tenants") without charge and at all reasonable times,
for the purpose of making such inspections, tests and verifications
(collectively, "Tests") as they shall deem reasonably necessary. On or
before the Contingency Date, Purchaser shall be satisfied, in its sole
and absolute discretion, with the results of the Tests. Purchaser shall
pay all costs and expenses of the Tests and shall defend, indemnify and
hold harmless Seller, and its agents, employees and contractors, and
the Subject Property, from and against any and all loss, cost, damage,
liability, settlement, cause of action or threat thereof or expense
(including, without limitation, reasonable attorneys' fees and costs)
arising from or relating to the Tests. Purchaser shall promptly repair
and restore any damage to the Subject Property attributable to the
conduct of the Tests, and shall promptly return the Subject Property to
substantially the same condition as existed prior to the conduct of the
Tests. No Tests shall be conducted without Seller's
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approval as to the time and manner of such Tests, which approval shall
not be unreasonably withheld or delayed. At Seller's sole option, any
such Tests shall be performed in the presence of a representative of
Seller. All Tests shall be conducted in such a manner so as to minimize
interference with the operation of the Subject Property and the
business of any and all Tenants and occupants thereof. Anything in this
Agreement to the contrary notwithstanding, the indemnity, defense and
hold harmless obligations of Purchaser under this Section 3(b) shall
survive Closing and any termination of this Agreement.
(c) BOARD APPROVAL. Purchaser shall have obtained
approval of the Purchaser's Board of Directors to consummate the
purchase contemplated by this Agreement.
Purchaser shall, on or before the Contingency Date notify Seller in
writing if the Conditions Precedent have not been satisfied or waived by
Purchaser, in Purchaser's sole and absolute discretion. If Purchaser so timely
notifies Seller, then this Agreement shall terminate and Purchaser shall receive
a return of the Initial Earnest Money, provided Purchaser shall execute any
document reasonably required by Seller to evidence such termination including,
without limitation, a quit claim deed. Upon such termination, neither party will
have any further rights or obligations (other than the obligations of Purchaser
set forth in Section 3(b) and the indemnity obligations of Purchaser set forth
in Articles 14 and 15, which obligations shall survive any such termination)
regarding this Agreement or the Subject Property. If Purchaser gives notice that
the Conditions have been satisfied or waived by Purchaser, or if Purchaser fails
to notify Seller on or prior to the Contingency Date that the Conditions
Precedent have not been satisfied or waived by Purchaser, then Purchaser's
termination right set forth in this Section 3 shall be deemed to have been
waived by Purchaser, in which event (i) Purchaser shall deposit the Additional
Earnest Money with the Title Company within two (2) days after the Contingency
Date, (ii) all of the Earnest Money (including the Initial Earnest Money and the
Additional Earnest Money) shall become non-refundable as of the Contingency
Date, except as specifically provide otherwise herein, and (iii) the parties
shall proceed to Closing in accordance with the provisions herein contained.
4. COVENANTS BY SELLER. Seller covenants and agrees with
Purchaser that from the date hereof until the Closing Date (as such term is
defined in Section 8(a) hereof), Seller shall conduct its business involving the
Subject Property as follows (except as specifically provided to the contrary
herein):
(a) TRANSFERS; EASEMENTS. Seller shall refrain from
transferring any of the Subject Property, or creating on the Real
Property any easements provided, however, that nothing herein shall
preclude Seller from (i) replacing any equipment, supplies or machinery
in the ordinary course of operating the Subject Property or (ii)
entering into any easements or other documents required by any
applicable governmental or quasi-governmental authority or provider of
utility services.
(b) CONTRACTS. Seller shall refrain from entering into or
amending any contracts or other agreements regarding the Subject
Property that would be binding on Purchaser following consummation of
the sale contemplated by this Agreement without
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the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed and which shall be deemed given by
Purchaser if Purchaser does not object to Seller's request for approval
within five (5) business days. Nothwithstanding the foregoing, Seller
may (i) enter into an amendment of the Declaration (as defined in
Section 25 hereof) pursuant to the terms of Section 25 hereof and (ii)
execute and record a Map of Dedication of Northsight II (the "Map of
Dedication") in the map records of Maricopa County, Arizona. Upon the
filing of the Map of Dedication, the legal description of the Real
Property will be the description shown on Exhibit N attached hereto
(the "Revised Legal Description"). Provided that the Map of Dedication
is recorded prior to the Closing Date, the legal description to be
conveyed pursuant to the Deed and the other Seller Closing Documents
will be the Revised Legal Description.
(c) OPERATIONS. Seller shall operate, maintain, repair
and insure the Subject Property in a manner consistent with the
existing operation, maintenance, repair and insurance of the Subject
Property.
5. REPRESENTATIONS AND WARRANTIES BY SELLER.
(a) REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser as follows:
(i) AUTHORITY. Seller is a limited liability
company duly organized and validly existing and in good
standing under the laws of the State of Delaware and in good
standing under the laws of the State of Arizona. Seller has
the requisite power and authority to enter into and perform
this Agreement and Seller's Closing Documents (as such term is
defined in Section 9(a) hereof). This Agreement and Seller's
Closing Documents have been duly authorized by all necessary
action on the part of Seller and have been or will be duly
executed and delivered by Seller. Seller's execution, delivery
and performance of this Agreement and Seller's Closing
Documents will not conflict with or result in a violation of
Seller's organizational documents, or any judgment, order or
decree of any court or arbiter, to which Seller is a party.
This Agreement and Seller's Closing Documents are valid and
binding obligations of Seller, and are enforceable against
Seller in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, creditor's rights and
other similar laws.
(ii) UTILITIES. Seller has received no written
notice of actual or threatened reduction or curtailment of any
utility service currently supplied to the Real Property.
(iii) HAZARDOUS SUBSTANCES. Except as disclosed by
any environmental assessment or report delivered to or
received by Purchaser (including, without limitation, any
environmental assessments or reports delivered by Seller to
Purchaser), to Seller's actual knowledge, (A) the Real
Property has never been used for the production, storage,
deposit or disposal of hazardous substances in any reportable
quantities under and in violation of applicable environmental
laws; (B) no above or below ground storage tank is or has been
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located at the Real Property; (C) Seller has not received any
written notice from any applicable governmental authority that
any hazardous substances have been placed or located upon the
Real Property in violation of applicable environmental laws;
and (D) Seller has no knowledge of any material adverse
environmental condition related to the Real Property except as
set forth in the environmental reports in the possession or
control of Seller.
(iv) FIRPTA. Seller is not a "foreign person,"
"foreign partnership," "foreign trust" or "foreign estate" as
those terms are defined in Section 1445 of the Internal
Revenue Code.
(v) PROCEEDINGS. There is no action, litigation,
condemnation or proceeding of any kind pending or, to the best
knowledge of Seller, threatened against Seller, which would
have a material and adverse affect on the ability of Seller to
perform its obligations under this Agreement, or against any
portion of the Real Property.
(vi) CONDITION OF THE REAL PROPERTY. Seller has
not received written notice from any governmental authority
having jurisdiction over the Real Property of any violation of
any applicable law, rule, regulation or code of any such
governmental authority, which has not been cured or remedied.
To the best of Seller's knowledge, except as disclosed by any
engineering report received by Purchaser with respect to the
Real Property, the major structural, mechanical and electrical
systems constituting the Improvements are in good working
order and condition to perform the work or function for which
intended. To the best of Seller's knowledge, there are no
material adverse physical conditions or defects in or on the
Improvements, except as disclosed in writing to Purchaser.
Seller has provided to Purchaser copies of all written
engineering reports in Seller's possession or control
regarding the condition of the Real Property.
(vii) LEASES.
(A) Exhibit B is a true and complete list of all
of the Leases or other occupancy agreements.
Except as set forth in the Leases, there are
no options to expand, rights of first
refusal, options to terminate without cause
of Seller, options to renew, options to
purchase, or any rent abatements given to
any of the Tenants after the Tenants are in
occupancy and paying rent.
(B) To the best of Seller's knowledge, each of
the Trapeze Lease and the License Agreement
with Voice Stream PCS III, Corporation (the
"Voice Stream License") is in full force and
effect according to the terms set forth
therein, and has not been modified, amended,
or altered, in writing or otherwise, except
as set forth in Exhibit B.
(C) Seller has not received written notice from
the Tenant under the Trapeze Lease or the
licensee under the Voice Stream License of
any unperformed obligation of the landlord
under such Leases, including, without
limitation, failure of the landlord to
construct
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any required tenant improvements. Neither of
the tenants under the Trapeze Lease and the
Voice Stream License has asserted in writing
to Seller any offsets, defenses or claims
available against rent payable by it or
other performance or obligations otherwise
due from it under the Trapeze Lease or the
Voice Stream License, respectively. To the
best of Seller's knowledge, with respect to
the Trapeze Lease as of the date hereof, all
tenant improvement allowances have been paid
and all tenant improvements have been
completed.
(D) To the best of Seller's knowledge, neither
the tenant under the Trapeze Lease nor the
licensee under the Voice Stream License is
in default under its Lease (beyond any
applicable grace or cure period), and
neither is in arrears in the payment of any
sums or in the performance of any
obligations required of it under such
Trapeze Lease or Voice Stream License, as
appropriate.
(E) There are no brokers' commissions, finders'
fees, or other charges payable or to become
payable to any third party on behalf of
Seller as a result of or in connection with
the Trapeze Lease, including, without
limitation, any unexecuted options to expand
or renew, other than as set forth on Exhibit
C attached hereto and made a part hereof.
(viii) SPECIAL ASSESSMENTS. Except as shown on any
tax bills delivered to Purchaser and the Commitment, Seller
has not received any notice, in writing, of any special
assessment which affects the Subject Property.
(b) SELLER'S KNOWLEDGE. For purposes of this Agreement,
the phrase "to the best of Seller's knowledge" or words of similar
import shall mean the actual knowledge of Scott Haugen of Opus
Properties, L.L.C., and Patrick Mascia, Vice President of Seller,
without independent inquiry or investigation.
(c) REPRESENTATION AND WARRANTY BECOMING UNTRUE. In the
event that, between the date of this Agreement and the Closing Date,
Seller becomes aware that any of the foregoing representations and
warranties of Seller is no longer true and correct, Seller shall
promptly notify Purchaser thereof in writing. Seller covenants and
agrees, within thirty (30) days (such thirty (30)-day period being
sometimes hereinafter referred to as the "Warranty Cure Period"), to
use reasonable efforts to cure any such then- incorrect representations
and warranties, and the Closing shall be delayed in accordance with
this Section 5(c) while Seller undertakes such efforts. If, after using
reasonable efforts, Seller cannot effect such cure on or before the
expiration of the Warranty Cure Period, Purchaser shall, within five
(5) business days following expiration of the Warranty Cure Period,
elect either (i) to terminate this Agreement (other than the
obligations of Purchaser and Seller set forth in Sections 3(b), 14 and
15 hereof, which obligations shall survive any such termination),
provided Purchaser shall execute any document reasonably required by
Seller to evidence such termination including, without
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limitation, a quit claim deed, or (ii) to waive any such incorrect
representations and warranties of Seller, and thereby release Seller
from any and all liability or obligations with respect thereto, and to
proceed hereunder. Failure of Purchaser to notify Seller within the
aforesaid five (5)-business day period shall constitute Purchaser's
irrevocable election under clause (ii) of the immediately preceding
sentence. In the event that Purchaser terminates this Agreement as
provided in clause (i) above, and provided that Purchaser is not in
breach or default hereunder beyond any applicable grace or cure period,
the Earnest Money shall be promptly returned to Purchaser.
6. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser
represents and warrants to Seller that Purchaser is a corporation duly organized
and validly existing and in good standing under the laws of the State of
Delaware and in good standing under the laws of the State of Arizona; that
Purchaser has the requisite power and authority to enter into this Agreement and
the Purchaser's Closing Documents (as herein defined); such documents have been
duly authorized by all necessary action on the part of Purchaser and have been
or will be duly executed and delivered; that the execution, delivery and
performance by Purchaser of such documents will not conflict with or result in
violation of Purchaser's organizational documents or any judgment, order or
decree of any court or arbiter to which Purchaser is a party; such documents are
valid and binding obligations of Purchaser, and are enforceable against
Purchaser in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, creditor's rights and other similar
laws.
7. OTHER MATTERS RELATED TO REPRESENTATIONS AND WARRANTIES OF
SELLER AND PURCHASER. The respective representations and warranties of Seller
and Purchaser contained in this Agreement shall survive Closing; provided,
however, that (a) any cause of action that Purchaser may have against Seller by
reason of a breach or default of any of Seller's representations and warranties
set forth herein shall automatically expire on the date which is one (1) year
after the Closing Date ("Warranty Expiration Date"), except that the same shall
not expire as to any such breach or default as to which Purchaser has instituted
litigation against Seller prior to the Warranty Expiration Date; (b) Seller's
total liability for any breach or breaches of its representations and warranties
set forth herein shall in no event exceed $7,000,000, which liability limit
shall survive closing and (c) Seller shall have no liability whatsoever to
Purchaser with respect to any breach or breaches by Seller of its
representations and warranties set forth herein, if, prior to Closing, Purchaser
obtains knowledge by virtue of its current or prior occupancy of the Subject
Property as the tenant under the JDA Lease or through a written document or
report received on or prior to the Closing Date of a fact or circumstance, the
existence of which would constitute a breach of Seller's representations and
warranties set forth herein. Among other things, for purposes hereof, Purchaser
shall be deemed to have knowledge of any fact or circumstance set forth in any
environmental assessments, engineering reports, estoppel certificates delivered
by the tenant under the Trapeze Lease, or other written materials reviewed or
received by Purchaser on or prior to the Closing Date. Seller's representations
and warranties set forth herein shall be deemed automatically modified to the
extent that any information contained in any environmental assessments or
engineering reports or other written materials reviewed or received by Purchaser
prior to the Closing Date is inconsistent with the matters which are the subject
to such representations and warranties. Notwithstanding the foregoing, Seller
shall have no liability with respect to any breach to the extent the loss
sustained by Purchaser as a result thereof does not exceed $10,000.00 in the
aggregate, provided, further if
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any such loss exceeds $10,000.00, Seller shall be liable for the total amount of
such loss subject to the maximum liability provisions herein contained. For
purposes of this Agreement, "Purchaser's knowledge" or words of similar import
shall mean the actual knowledge of Paul Mehlhorn, Vice President of Purchaser.
8. CLOSING.
(a) CLOSING DATE. The closing of the purchase and sale
contemplated by this Agreement ("Closing") shall occur on the date
which is forty-five (45) days after the Contingency Date, or on such
earlier or later date as Seller and Purchaser may mutually agree,
subject to delays occasioned by operation of Sections 5(c) or 9(b)
hereof ("Closing Date"). The closing shall be consummated through
escrow as described in Section 9(e) below.
(b) PURCHASER'S CLOSING CONDITIONS PRECEDENT. Purchaser's
obligation to consummate the transaction contemplated by this Agreement
shall be subject to satisfaction or waiver of each of the following
conditions ("Purchaser's Closing Conditions Precedent"); provided,
however, that Purchaser shall have the unilateral right to waive any
Purchaser's Closing Condition Precedent, in whole or in part, by
written notice to Seller:
(i) The representations and warranties of Seller
set forth in Section 5(a) hereof shall be, in all material
respects, true and complete.
(ii) Seller shall have performed all of the
obligations required to be performed by Seller under this
Agreement, as and when required by this Agreement, in all
material respects.
(iii) Seller shall have delivered at Closing the
Seller's Closing Documents, the Joint Closing Documents, and a
"marked-up" title commitment or pro forma title policy
pursuant to Section 9(b) hereof.
(iv) Purchaser shall have received on or before
the Closing Date, an estoppel certificate from the tenant
under the Trapeze Lease in the form attached to the Trapeze
Lease, or if no form is attached, then substantially in the
form of Exhibit I attached hereto, or otherwise approved by
Purchaser. No estoppel certificate shall be required for JDA
Software Group, Inc., as tenant, or for the tenant under the
McLeod Lease (as defined in Section 26).
(v) Seller shall provide evidence to Purchaser
that the McLeod Lease (as defined in Section 26 hereof) has
been terminated on or before the Closing Date as provided in
Section 26 hereof.
(vi) An amendment to the Declaration (as defined
in Section 25 hereof) shall have been prepared and shall be
executed at or prior to Closing providing that if the sale of
the Subject Property to the Purchaser hereunder is
consummated, Purchaser shall succeed to the rights,
obligations and duties of the
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Declarant under the Declaration in the event that Opus West
Corporation is no longer the Declarant.
(c) SELLER'S CONDITIONS PRECEDENT. Seller's obligation to
consummate the transaction contemplated by this Agreement shall be
subject to satisfaction or waiver of each of the following conditions
("Seller's Closing Conditions Precedent"); provided, however, that
Seller shall have the unilateral right to waive any Seller's Closing
Condition Precedent, in whole or in part, by written notice to
Purchaser:
(i) The representations and warranties of
Purchaser set forth in Section 6 hereof shall be, in all
material respects, true and complete.
(ii) Purchaser shall have performed all of the
obligations required to be performed by Purchaser under this
Agreement, as and when required by this Agreement, in all
material respects.
(iii) The Tenant under the JDA Lease shall not be
in default under the terms of the JDA Lease, and all rents due
under the JDA Lease shall be paid in full through and
including the Closing Date.
(d) FAILURE OF CONDITION PRECEDENT. In the event that
Purchaser's Closing Conditions Precedent or Seller's Closing Conditions
Precedent, as the case may be, have not been satisfied or waived as of
the scheduled Closing Date as the same may be extended as permitted
above, and provided the failure to satisfy or waive any such condition
is not attributable to a breach or default of this Agreement by Seller
or Purchaser, as the case may be (in which event the provisions of
Section 11 shall apply), this Agreement shall terminate (other than the
obligations of Purchaser and Seller set forth in Sections 3(b), 14 and
15 hereof, which obligations shall survive any such termination), and
the Earnest Money shall be returned to Purchaser, provided, however,
upon such termination Purchaser shall, at the request of Seller,
execute any document reasonably requested by Seller to evidence such
termination, including, without limitation, a quit claim deed. Upon
such termination, neither party will have any further rights or
obligations (except the obligations of Purchaser under Section 3(b) and
the obligations of Purchaser and Seller set forth in Sections 14 and 15
hereof, which obligations shall survive any such termination).
9. CLOSING DELIVERIES.
(a) SELLER'S CLOSING DOCUMENTS. On the Closing Date,
Seller shall execute and/or deliver to Purchaser or cause to be
executed and/or delivered the following (collectively, "Seller's
Closing Documents"):
(i) DEED. A Special Warranty Deed conveying the
Real Property to Purchaser in the form set forth in Exhibit J
attached hereto and made a part hereof (the "Deed").
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(ii) BILL OF SALE. A Bill of Sale transferring
the Personal Property to Purchaser, in the form set forth in
Exhibit K attached hereto and made a part hereof.
(iii) SELLER'S AFFIDAVIT. An Affidavit of Seller
in favor of the Title Company indicating that on the Closing
Date, to the best of Seller's knowledge, there are no
outstanding, unsatisfied judgments, tax liens (other than the
lien of real estate taxes not yet due and payable) or
bankruptcies against or involving Seller or the Real Property;
and that, to the best of Seller's knowledge, there are no
other unrecorded interests in the Real Property other than the
Leases or any other document shown on the Commitment.
(iv) ORIGINAL DOCUMENTS. Original copies of the
Leases, the Permits, those of the Service Contracts (if any)
to be assigned to and assumed by Purchaser pursuant to Section
l(e) hereof, the Warranties and the Plans, to the extent that
the same are in Seller's possession and have not previously
been delivered to Purchaser.
(v) FIRPTA AFFIDAVIT. A non-foreign affidavit
properly containing such information as is required by Section
1445(b)(2) of the Internal Revenue Code and the regulations
promulgated thereunder.
(vi) KEYS AND MANUALS. All keys to locks on the
Subject Property and all manuals for equipment with respect to
the Subject Property in the possession or control of Seller.
(vii) TITLE DOCUMENTS. Affidavits and personal
undertakings of Seller relating to gap coverage, mechanic's
liens, creditor's rights and all other documents reasonably
required by the Title Company to issue the Policy to
Purchaser.
(viii) CLOSING CERTIFICATE. A Closing Certificate
executed by Seller certifying that representations and
warranties made by Seller herein are true as of the Closing
Date, as modified in the interim.
(ix) MANAGEMENT AND LEASING AGREEMENT
TERMINATIONS. A termination of existing management agreements
and leasing brokerage agreements, if any, and those Service
Contracts which Purchaser requests be terminated.
(x) FINANCIAL RECORDS. Financial records
directly related to operation of the Subject Property.
(xi) TENANT ESTOPPEL CERTIFICATES. Subject to the
terms of Section 8(b)(iv) hereof, a tenant estoppel
certificate from the tenant under the Trapeze Lease.
Notwithstanding the foregoing, Seller shall not be in default
under this Agreement if Seller is unable to obtain an estoppel
certificate from the tenant
11
under the Trapeze Lease, and no costs, expenses or other
damages shall be due to Purchaser due to such event.
(b) TITLE POLICY. At Closing, Seller shall cause the
Title Company to deliver to Purchaser its owner's title insurance
policy required by this Agreement, in the form of an ALTA Form
(10/17/92) or a marked-up title commitment or pro forma owners policy,
together with endorsements reasonably requested by Purchaser prior to
the Contingency Date and which are approved by the Seller. If the
owner's title insurance policy which the Title Company is prepared to
issue shows any Unpermitted Encumbrances, Seller covenants and agrees,
within thirty (30) days (such thirty (30)-day period being sometimes
hereinafter referred to as the "Title Cure Period"), to use reasonable
efforts to remove such Unpermitted Encumbrances or to cause the Title
Company to issue its endorsement over any such Unpermitted
Encumbrances, and the Closing shall be delayed in accordance with this
Section 9(b) while Seller undertakes such efforts. If, after using
reasonable efforts as aforesaid, Seller cannot cause such Unpermitted
Encumbrances to be removed, or Seller cannot cause the Title Company to
issue its endorsement over any such Unpermitted Encumbrances, on or
before the expiration of the Title Cure Period, Purchaser shall, within
five (5) business days following expiration of the Title Cure Period,
elect either (i) to terminate this Agreement (other than the
obligations set forth in Sections 3(b), 14 and 15 hereof, which
obligations shall survive any such termination), or (ii) to take title
to the Real Property as it then is (without any abatement in the
Purchase Price). Failure of Purchaser to notify Seller within the
aforesaid five (5)-business day period shall constitute Purchaser's
irrevocable election under clause (ii) of the immediately preceding
sentence. In the event that Purchaser terminates this Agreement as
provided in clause (i) above, the Earnest Money shall be promptly
returned to Purchaser, provided, however, upon such termination
Purchaser shall, at the request of Seller, execute any document
reasonably requested by Seller to evidence such termination, including,
without limitation, a quit claim deed. Upon such termination, neither
party will have any further rights or obligations (except the
obligations of Purchaser under Section 3(b) and the obligations of
Purchaser and Seller set forth in Sections 14 and 15 hereof, which
obligations shall survive any such termination).
(c) PURCHASER'S CLOSING DOCUMENTS. On the Closing Date,
Purchaser shall execute and/or deliver or cause to be executed and/or
delivered to Seller the following (collectively, "Purchaser's Closing
Documents"):
(i) PURCHASE PRICE. The Purchase Price, plus or
minus prorations and other adjustments, if any, by wire
transfer of immediately available funds to be received in
Title Company's trust account on or before 11:00 a.m. central
time on the Closing Date.
(ii) TITLE DOCUMENTS. Such affidavits of
Purchaser and other documents as may be reasonably required by
the Title Company in order to record the Deed and issue the
title insurance policy required by this Agreement and which
are reasonably acceptable to Purchaser.
12
(iii) MISCELLANEOUS. Other documents reasonably
required to consummate the transaction this Agreement
contemplates.
(d) PURCHASER'S AND SELLER'S CLOSING DOCUMENTS. On the
Closing Date, Seller and Purchaser shall jointly execute and deliver
the following (collectively, the "Joint Closing Documents"):
(i) CLOSING STATEMENT. A closing statement in
form and substance reasonably acceptable to both Seller and
Purchaser, and consistent with the terms, provisions and
conditions of this Agreement, showing the Purchase Price and
all prorations, adjustments, credits and debits this Agreement
describes or requires.
(ii) ASSIGNMENT AND ASSUMPTION OF LEASES. An
Assignment and Assumption of Leases in the form of Exhibit L
hereof.
(iii) ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND
PROJECT DOCUMENTS. An Assignment and Assumption Agreement of
Contracts and Project Documents in the form of Exhibit M
hereto.
(iv) NOTICES TO TENANT. Written notice to the
tenant under the Trapeze Lease advising it of the sale of the
Subject Property and directing it to make future lease
payments and to send all notices or other communications to
Purchaser at the place designated by Purchaser.
(v) AFFIDAVIT OF PROPERTY VALUE. An Affidavit of
Property Value as required by the Arizona Department of
Revenue.
(vi) DESIGNATION AGREEMENT. A Designation
Agreement executed by Seller, Purchaser and Title Company
designating the "reporting person" for purposes of completing
the Internal Revenue Service Form 1099 and, if applicable,
Internal Revenue Form 8594.
(vii) MISCELLANEOUS. Such other documents,
instruments and affidavits as shall be reasonably necessary to
consummate the transaction contemplated by this Agreement,
including, without limitation, affidavits identifying any
brokers involved as the only persons entitled to a brokerage
or similar commission in connection with consummation of the
transaction contemplated hereby, and which are reasonably
acceptable to Seller and Purchaser.
(viii) TAX AGREEMENT. A letter agreement by and
between Seller and Purchaser regarding allocation and
proration of real estate taxes (the "Tax Agreement").
(e) ESCROW CLOSING. This transaction shall be closed
through an escrow pursuant to escrow instructions reasonably acceptable
to Seller and Purchaser or, if Seller and/or Purchaser fail to so
agree, at the office of the Seller's attorney. The attorneys for both
Seller and Purchaser are authorized to sign the escrow agreement. Upon
the creation of such escrow, payment of the Purchase Price and delivery
of the Deed shall be
13
made through the escrow. The cost of the deed and money escrow shall be
divided equally between Seller and Purchaser; provided, however, that
Purchaser shall be solely responsible for any costs associated with a
separate money lender's escrow. This Agreement shall not be merged into
nor in any manner superseded by the deed and money escrow agreement.
10. ADJUSTMENT AND PRORATIONS. Seller and Purchaser shall make all
adjustments and apportion all income and expenses with respect to the Subject
Property, including, without limitation, the following:
(a) REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. Seller
shall be responsible for payment to the collecting authorities of all
real estate taxes and installments of special assessments and other
assessments of any kind or nature whatsoever ("Taxes") which have been
assessed against the Real Property and which are due and payable as of
the date (the "Proration Date") immediately preceding the Closing Date,
and Purchaser shall be responsible for payment to the collecting
authorities of all Taxes which have been or will be assessed and which
become due and payable on and after the Closing Date. With respect to
Taxes which have been assessed against the Real Property but which are
not due and payable as of the day prior to the Closing Date, such Taxes
shall be prorated as of the day prior to the Closing Date on the basis
of the most recent ascertainable Taxes, with Seller providing Purchaser
a credit at Closing for such prorated amount; provided, however, there
shall be no proration of Taxes to the extent that Taxes are or will be
payable by tenants under Leases, and provided further that Seller
provides Purchaser a credit at closing in an amount equal to the
monthly amounts which Seller has received from tenants under the Leases
(and including any tax payments received under the McLeod Lease) for
Taxes which have been assessed against the Real Property but which are
not due and payable. To the extent the provisions of the Tax Agreement
are inconsistent with this Section 10(a), the Tax Agreement shall
control.
(b) TITLE INSURANCE. Seller shall pay all title
examination fees of Title Company and the premium for cost of the
standard coverage portion of the Owner's Policy, without endorsements.
Purchaser shall pay the costs of the extended coverage portion of the
Owner's Policy and all fees Title Company charged for endorsements to
the Owner's Policy.
(c) SURVEY COSTS. Seller shall pay all costs of the
Survey.
(d) CLOSING FEE. Seller and Purchaser shall each pay
one-half of the closing fee or escrow fee Title Company charges.
(e) TRANSFER TAX. Seller shall pay all documentation,
stamp and transfer taxes payable in connection with the transfer of the
Subject Property (other than any mortgage registration tax or other
fees or expenses applicable to any financing Purchaser secures).
(f) RENTS/TENANT EXPENSE CONTRIBUTIONS. Except as
described in subsection (g) below, Seller and Purchaser shall prorate
on an accrual basis to the Closing
14
Date and on the basis of the most reliable information available, all
current and advance rent payments of each tenant under the Leases; all
real estate taxes, special assessments, operating expenses, insurance
and other charges and amounts payable by each tenant under the Leases
(collectively, "Expense Contributions"); all utility deposits made by
Seller; and all other accrued and prepaid expenses and income. Seller
shall receive a credit at Closing for all rent and additional rent due
under the JDA Lease through and including the Closing Date. When actual
Expense Contributions for the year in which Closing occurs are known,
Purchaser shall bill the tenants under the Leases for the additional
amount, if any, owed by such tenants as a result of non-payment or
underpayment of such tenants' share of Expense Contributions for the
year to which such Expense Contributions apply under the Leases. Upon
collection of such amounts the same shall be reported between Seller
and Purchaser, and Purchaser shall pay Seller all amounts due Seller
for the period up to and including the Proration Date. In the event
Expense Contributions collected by Seller for the period up to and
including the Proration Date exceed actual Expense Contributions for
such period, Seller shall pay to Purchaser an amount equal to the
excess of Expense Contributions collected over actual Expense
Contributions for such period as soon as reasonably practical after
such Expense Contributions are known. Seller shall have the right, upon
five (5) days written notice, to inspect the books and records of the
Subject Property to verify that Purchaser is remitting to Seller all
amounts required to be remitted to Seller according to the terms of
this Agreement.
(g) DELINQUENT RENTS UNDER THE TRAPEZE LEASE. In the
event that on the Closing Date any tenant under the Trapeze Lease is
delinquent in the payment of any rent (base rent and additional rent),
billed but unpaid at the time of Closing, then no proration of such
rent shall be made at Closing, and Seller may attempt to collect in the
manner described in this subsection (g). With prior notice to
Purchaser, Seller may take such action as Seller deems necessary
against the tenant under the Trapeze Lease who is delinquent in the
payment of rent (base rent or additional rent) as of the Closing Date
to collect such unpaid rent; provided, however, that Seller will not
attempt to terminate such tenant's right to possess its premises or its
lease. If Seller recovers any amount from such tenant, Seller will
apply such amount in the following order of priority: (a) first, to
Seller to offset Seller's collection costs and rent accrued but unpaid
prior to the Closing Date; and (b) second, the balance to Seller. If
Purchaser recovers any such delinquent amounts, Purchaser will apply
such amounts in the following order of priority: (a) first to Purchaser
to offset Purchaser's collection costs and any rent accrued but unpaid
after the Closing Date; and (b) second, the balance to Seller.
(h) SECURITY DEPOSITS. Purchaser shall receive a credit
against the Purchase Price in an amount equal to the sum of all
unapplied cash security deposits in Seller's possession plus, if
accrued interest on such security deposits must be reimbursed to any
tenant that paid a security deposit, all interest accrued on such
security deposits.
(i) RECORDING COSTS. Seller shall pay all costs to record
documents necessary for Seller to place record title to the Real
Property in marketable condition. Purchaser shall pay the cost of
recording the Deed and all other recording costs.
15
(j) McLEOD TERMINATION FEE. Purchaser shall receive a
credit against the purchase Price in an amount equal to the McLeod
Termination Fee (as defined in Section 26 hereof) to the extent such
McLeod Termination Fee has been received by Seller.
(k) OTHER COSTS. All other costs shall be allocated in
accordance with the customs prevailing in similar transactions in the
greater Phoenix, Arizona metropolitan area.
Except as otherwise expressly provided in this Agreement, all prorations
provided for herein shall be final.
11. DEFAULT/REMEDIES. In the event of a breach or default by
Seller in closing the transaction contemplated by this Agreement, Purchaser, as
its sole and exclusive remedy, shall have the right either (i) to terminate this
Agreement and receive a return of the Earnest Money, or (ii) to enforce specific
performance of this Agreement, provided that any action for specific performance
be commenced within ninety (90) days of the scheduled Closing Date, as the same
may have been extended pursuant to the provisions hereof. Except as otherwise
provided in Sections 3(b), 14 and 15 hereof, which shall survive termination of
the Agreement, in the event of a breach or default by Purchaser in closing the
transaction contemplated by this Agreement, Seller, as its sole and exclusive
remedy, shall have the right to terminate this Agreement and receive the Earnest
Money as liquidated damages, it being agreed by the Seller and the Purchaser
that the damages to the Seller in case of default by Purchaser may be impossible
to ascertain and that the Earnest Money constitutes a fair and reasonable amount
of damages in the circumstances. Nothing herein contained shall limit the rights
or obligations of the parties with respect to a default under this Agreement
occurring from and after the Closing Date, and in such case the parties shall
have all rights and remedies available at law, in equity or otherwise including,
without limitation, the right to specific performance, subject to the conditions
and limitations herein set forth including, without limitation, the provisions
of Section 7 hereof. Notwithstanding anything herein to the contrary, neither
party shall be entitled to receive special, consequential, incidental, or
punitive damages under this Agreement.
12. DAMAGE. If, prior to the Closing Date, all or any part of the
Improvements are substantially damaged by fire or other casualty, Seller shall
promptly give notice to Purchaser of such fact. Thereafter, at Purchaser's
option (to be exercised by Purchaser's written notice to Seller given within
thirty (30) days after Seller's initial notice to Purchaser), this Agreement
shall terminate. In the event of any such termination of this Agreement, neither
party will have any further obligations under this Agreement (other than the
obligations set forth in Sections 3(b), 14 and 15 hereof, which obligations
shall survive any such termination), and the Earnest Money shall be refunded to
Purchaser provided Purchaser is not in breach or default hereunder beyond any
applicable grace or cure period, and Purchaser shall, at the request of Seller,
execute any document reasonably requested by Seller to evidence such termination
including, without limitation, a quit claim deed. If Purchaser fails to elect to
terminate (in the manner provided in this Section 12) despite such damage, or if
the Improvements are damaged but not substantially, Seller shall promptly
commence to repair such damage or destruction and to return the Improvements to
substantially their condition prior to such damage. If such damage shall be
completely repaired prior to the Closing Date, then there shall be no reduction
in the Purchase Price, and Seller shall retain the proceeds of all insurance
related to such damage. If such
16
damage shall not be completely repaired prior to the Closing Date, but Seller is
diligently proceeding to repair, then Seller shall complete the repair after the
Closing Date and shall be entitled to receive the proceeds of all insurance
related to such damage; provided, however, that Purchaser shall have the right
to delay the Closing Date until repair is completed. For purposes of this
Section 12, the words "substantially damaged" mean damage that would cost
$250,000 or more to repair, as reasonably determined by Seller.
13. CONDEMNATION. If, prior to the Closing Date, eminent domain
proceedings are commenced against all or any substantial part of the Subject
Property, Seller shall immediately give notice to Purchaser of such fact and, at
Purchaser's option (to be exercised within thirty (30) days after Seller's
notice), this Agreement shall terminate. In the event of any such termination,
neither party will have further obligations under this Agreement (other than the
obligations set forth in Sections 3(b) and 14 hereof, which obligations shall
survive any such termination), and the Earnest Money shall be refunded to
Purchaser provided Purchaser is not in breach or default hereunder beyond any
applicable grace or cure period, and Purchaser shall, at the request of Seller,
execute any document reasonably requested by Seller to evidence such termination
including, without limitation, a quit claim deed. If Purchaser fails to elect to
terminate (in the manner provided in this Section 13), then there shall be no
reduction in the Purchase Price, and Seller shall assign to Purchaser at the
Closing Date all of Seller's right, title and interest in and to any award made
or to be made in the condemnation proceedings. Prior to the Closing Date, Seller
shall not designate counsel, appear in, or otherwise act with respect to the
condemnation proceedings without Purchaser's prior written consent, which
consent shall not be unreasonably withheld or delayed; provided, however, that
if any action is necessary with respect to such proceeding to avoid any
forfeiture or material prejudice, Seller shall be entitled to take such action
as and to the extent necessary without obtaining Purchaser's prior written
consent. For purposes of this Section, the words "substantial part" mean the
fair market value of the portion of the Subject Property to be so taken exceeds
$250,000.
14. BROKER'S COMMISSION. Seller represents and warrants to
Purchaser that in connection with the transaction contemplated hereby, no third
party broker or finder has been engaged or consulted by Seller or is entitled to
compensation or commission in connection herewith other than R. Craig Coppola of
Lee & Associates Arizona (the "Broker"). Seller shall pay to the Broker a
commission in the aggregate amount of $236,000 at Closing, if the transaction
contemplated by the Agreement is consummated. Seller shall defend, indemnify and
hold harmless Purchaser from and against any and all claims of brokers, finders
or any like third party claiming any right to commission or compensation by or
through acts of Seller in connection herewith. Purchaser represents and warrants
to Seller that in connection with the transaction contemplated hereby, no third
party broker or finder has been engaged or consulted by Purchaser or is entitled
to compensation or commission in connection herewith other than the Broker.
Purchaser shall defend, indemnify and hold harmless Seller from and against any
and all claims of brokers, finders or any like party claiming any right to
commission or compensation by or through acts of Purchaser in connection
herewith. The indemnity obligations hereunder, in favor of both Seller and
Purchaser, shall include, without limitation, all damages, losses, risks,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees and costs) arising from and related to matters being indemnified hereunder;
provided, however, that the total liability of Seller with respect to the
foregoing shall be subject to the conditions and limitations set forth in
Section 7 hereof. No broker, finder or like party shall be entitled to rely
17
(as a third-party beneficiary or otherwise) on the provisions herein in claiming
any right to commission or compensation or otherwise. This Section 14 shall
survive the expiration or termination of this Agreement or the Closing for one
(1) year following the date of Closing.
15. MUTUAL INDEMNIFICATION. Seller and Purchaser agree to
indemnify each other against and hold each other harmless from all liabilities
(including reasonable attorneys' fees and costs in defending against claims)
arising out of the ownership, operation or maintenance of the Subject Property
for their respective periods of ownership; provided, however, nothing herein
shall diminish the defense, indemnity and hold harmless obligations of Purchaser
set forth in Section 3(b) hereof with respect to matters arising from or related
to the Tests. If and to the extent that the indemnified party has insurance
coverage, or the right to make claim against any third party for any amount to
be indemnified against as set forth above, the indemnified party will, upon full
performance by the indemnifying party of its indemnification obligations, assign
such rights to the indemnifying party or, if such rights are not assignable, the
indemnified party will diligently pursue such rights by appropriate legal action
or proceeding and assign the recovery and/or right of recovery to the
indemnifying party to the extent of the indemnification payment made by such
party; provided, however, any amounts recovered shall first be applied to
reimburse the indemnified party for any unreimbursed costs, expenses or
liabilities incurred in pursuing such rights or otherwise subject to and to the
extent of indemnification hereunder. The provisions of this paragraph shall
survive Closing and execution and delivery of the Deed, subject to the
conditions and limitations set forth in Section 7 of this Agreement. Nothing in
this Section 15 shall be construed to alter, modify or limit the indemnification
rights and obligations of the landlord and tenant under the JDA Lease pursuant
to the terms of the JDA Lease.
16. ASSIGNMENT. Except as provided below Purchaser may not assign
its rights under this Agreement without the prior written consent of Seller.
Notwithstanding the foregoing, Purchaser may assign its rights under this
Agreement prior to Closing to an entity controlled by Purchaser or under common
control with Purchaser without the prior consent of Seller, provided that
Purchaser provides written notice of any such assignment to Seller prior to
Closing. Any assignment (regardless of whether or not such assignment requires
consent of Seller) shall be subject to all the provisions, terms, covenants and
conditions of this Agreement, and the assignor shall, in any event, continue to
be and remain liable under this Agreement, as it may be amended from time to
time, as a principal and not as a surety without notice to such assignor. Any
such assignment and assumption shall be evidenced by a written agreement in form
and substance reasonably acceptable to Seller.
17. NOTICES. Any notice or other communication in connection with
this Agreement shall be in writing and shall be sent by United States certified
mail, return receipt requested, postage prepaid, by nationally recognized
overnight courier guarantee next business day delivery, by telecopy or facsimile
transmission (provided that such notice sent by facsimile is also sent via
nationally recognized overnight courier for guaranteed next business day
delivery), or by personal delivery, properly addressed as follows:
If to Seller: OPUS REAL ESTATE ARIZONA II, L.L.C.
10350 Bren Road West
Minnetonka, MN 95343
Attn: Patrick E. Mascia
18
Facsimile No.: (952) 656-4750
With a copy to: Opus L.L.C.
10350 Bren Road West
Minnetonka, MN 55343
Attn: Legal Department
Facsimile No.: (952) 656-4755
And a copy to: Briggs and Morgan, Professional Association
2200 IDS Center
Minneapolis, MN 55402
Attn: Charles R. Haynor
Facsimile No. (612) 977-8650
If to Purchaser: JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260
Attn: Paul Mehlhorn, VP - Finance and Planning
Facsimile No.: (480) 308-4265
With a copy to: JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260
Attn: Michael Bridge, Esq., VP and
General Counsel
Facsimile No.: (480) 308-3001
All notices shall be deemed given three (3) business days following deposit in
the United States mail with respect to certified or registered letters, one (1)
business day following deposit if delivered to an overnight courier guaranteeing
next day delivery and on the same day if sent by personal delivery or by
telecopy or facsimile transmission (with proof of transmission). Attorneys for
each party shall be authorized to give notices for each such party. Any party
may change its address for the service of notice by giving written notice of
such change to the other party, in any manner above specified.
18. CAPTIONS. The section headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement.
19. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter herein
contained, and all prior negotiations, discussions, writings and agreements
between the parties with respect to the subject matter herein contained are
superseded and of no further force and effect. No covenant, term or condition of
this Agreement shall be deemed to have been waived by either party, unless such
waiver is in writing signed by the party charged with such waiver.
19
20. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
21. CONTROLLING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona without
application of the choice of law rules of Arizona.
22. SEVERABILITY. The unenforceability or invalidity of any
provisions hereof shall not render any other provision herein contained
unenforceable or invalid.
23. "AS IS" SALE. PURCHASER ACKNOWLEDGES THAT EXCEPT AS SET FORTH
IN THIS AGREEMENT OR IN THE DOCUMENTS SET FORTH IN SUBSECTIONS (i), (ii), (iii),
(v), (vii), (viii), (ix), and (x) OF SECTION 9(a) (A) NEITHER SELLER, NOR ANY
OWNER, PRINCIPAL, AGENT, ATTORNEY, EMPLOYEE, BROKER, OR OTHER REPRESENTATIVE OF
SELLER, HAS MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT PROPERTY OR ANY MATTER RELATED
THERETO, AND (B) PURCHASER IS NOT RELYING ON ANY WARRANTY, REPRESENTATION, OR
COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OF THE SUBJECT
PROPERTY, AND THAT PURCHASER IS ACQUIRING THE SUBJECT PROPERTY IN ITS "AS-IS"
CONDITION WITH ALL FAULTS. IN PARTICULAR, BUT WITHOUT LIMITATION, EXCEPT AS SET
FORTH IN THIS AGREEMENT OR THE DOCUMENTS SET FORTH IN SUBSECTIONS (i), (ii),
(iii), (v), (vii), (viii), (ix), and (x) OF SECTION 9(a), SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE, CONDITION, OCCUPATION OR
MANAGEMENT OF THE SUBJECT PROPERTY, COMPLIANCE OF THE SUBJECT PROPERTY WITH
APPLICABLE STATUTES, LAWS, CODES, ORDINANCES, REGULATIONS OR REQUIREMENTS OR
COMPLIANCE OF THE SUBJECT PROPERTY WITH COVENANTS, CONDITIONS, AND RESTRICTIONS,
WHETHER OR NOT OF RECORD. PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER WILL
CONDUCT ITS OWN INVESTIGATIONS AND STUDIES OF THE PROPERTY AND ALL ASPECTS
THEREOF, INCLUDING WITHOUT LIMITATION THE PROPERTY'S CHARACTERISTICS, ITS
PHYSICAL CONDITION (INCLUDING ANY DEFECTS THEREIN), ALL LEGAL REQUIREMENTS
APPLICABLE THERETO, THE OPERATION AND USE THEREOF, THE ENVIRONMENTAL CONDITION
OF THE PROPERTY AND ALL MATTERS DESCRIBED IN THE PRECEDING SENTENCE; IF FOR ANY
REASON WHATSOEVER PURCHASER IS PRECLUDED BY SELLER FROM CONDUCTING SUCH
INVESTIGATIONS AND STUDIES, PURCHASER SHALL BE REQUIRED TO GIVE WRITTEN NOTICE
THEREOF TO SELLER PRIOR TO THE CONTINGENCY DATE.
24. JDA LEASE PROVISIONS. Seller and Purchaser acknowledge that
this Agreement and the obligations of the parties hereunder are separate and
distinct from the JDA Lease and the obligations of the parties thereunder.
Notwithstanding anything to the contrary in this Agreement, the Purchaser shall
not be entitled to any additional benefits as tenant under the JDA Lease by
virtue of this Agreement. Without limiting the foregoing, Purchaser, in its
capacity as purchaser under this Agreement and as tenant under the JDA Lease,
acknowledges that (a) this Agreement shall not limit any ability of Seller to
pass through costs and expenses to Purchaser,
20
in its capacity as tenant under the JDA Lease, pursuant to the terms of the JDA
Lease, even if such costs and expenses result from Sellers obligation under the
terms of this Agreement to make repairs, perform maintenance, rebuild the
Improvements, or prorate taxes or other expenses, and (b) the Purchaser shall
not be relieved of any of its obligations under the JDA Lease. This Agreement
shall not alter or modify the obligations of the landlord and tenant under the
JDA Lease, including without limitation rights and obligations that survive
termination of the JDA Lease pursuant to the terms of the JDA Lease. In
addition, this Agreement does not alter or modify the letter agreement dated
June 30, 2003 by and between Purchaser and Opus West Corporation relating to the
Phase II Building (as defined therein), and such letter agreement shall remain
in full force and effect following consummation of the sale pursuant to this
Agreement.
25. SCOTTSDALE NORTHSIGHT DECLARATION. The Purchaser and Seller
acknowledge that pursuant to a Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale Northsight dated January 6,
2004 and recorded with the County Recorder of Maricopa County, Arizona as
Document No. 2004-0012154 (the "Declaration"), the parking spaces in the parking
structure located on the Subject Property shall be shared by the Owners (as
defined in the Declaration) and their Permittees (as defined in the Declaration)
pursuant to the terms and conditions of the Declaration. Further, Purchaser
acknowledges that a portion of the Real Property shown as Parcel 3 of the
attached Exhibit A (defined as the "Building Parcel" in the Declaration) may not
be a separate tax parcel as of the Closing Date, and the taxes relating to such
parcel shall be apportioned pursuant to the terms and conditions of the
Declaration. To the extent that Seller has received a tax proration payment for
first half 2004 taxes from Opus West Corporation with respect to the parcel
containing the parking structure, Seller shall provide a credit against the
Purchase Price to Purchaser at Closing for such amount. Seller and Purchaser
acknowledge that the Subject Property is subject to all terms and conditions of
the Declaration.
26. McLEOD LEASE TERMINATION. Seller has entered into a Lease
Termination Agreement dated January 15, 2004 (the "McLeod Termination
Agreement") with McLeodUSA Telecommunications Services, Inc. ("McLeod")
terminating the Lease dated June 15, 2000 (the "McLeod Lease") by and between
the Seller and McLeod, which termination is effective as of January 31, 2004.
Pursuant to such Lease Termination Agreement, McLeod has paid a termination fee
in the amount of $10,736 (the "McLeod Termination Fee") to Seller. Upon the
consummation of the sale of the Subject Property, Seller shall provide a credit
to Purchaser for the amount of the McLeod Termination Fee. In the event that the
sale of the Subject Property does not close pursuant to the terms and conditions
of this Agreement, Seller shall be entitled to retain the McLeod Termination
Fee.
27. TIME OF ESSENCE. Time is of the essence of this Agreement.
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
29. INTERPRETATION. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
21
30. TAX DEFERRED EXCHANGE. Seller shall have the right to
structure the sale of the Subject Property as a tax deferred exchange in
accordance with the provisions of Section 1031 of the Internal Revenue Code and
Purchaser agrees to accommodate the Seller's exchange so long as Purchaser does
not incur any additional expense, liability or delay.
31. ATTORNEYS' FEES. If either party commences an action against
the other to enforce this Agreement or because of the breach by either party of
this Agreement, the prevailing party in such action shall be entitled to recover
reasonable attorney fees, costs, and expenses (including expert fees and costs)
incurred in connection with the prosecution or defense of such action, including
any appeal, in addition to all other relief.
32. NO MERGER. Purchaser shall elect prior to Closing whether the
JDA Lease shall be terminated at Closing or assigned to Purchaser, as landlord.
In the event the JDA Lease is assigned at Closing, the Purchaser's interests as
fee owner of the Subject Property and tenant under the JDA Lease shall not merge
and shall remain separate and distinct.
33. INTEREST ON EARNEST MONEY. Pursuant to Section 2(b) hereof,
the term "Earnest Money" as used herein includes all interest earned on the
Earnest Money. The parties acknowledge and agree that the party entitled to
receive the Earnest Money pursuant to the terms and conditions of this Agreement
shall also be entitled to receive all accrued interest thereon.
34. EXHIBITS. The following exhibits are made a part hereof, with
the same force and effect as if specifically set forth herein:
Exhibit A - Legal Description
Exhibit B - Schedule of Leases
Exhibit C Schedule of Broker Commissions
Exhibit D - Schedule of Permits
Exhibit E - Schedule of Service Contracts
Exhibit F - Schedule of Warranties
Exhibit G - Form of Earnest Money Escrow Agreement
Exhibit H - Intentionally Omitted
Exhibit I - Form of Tenant Estoppel Certificate
Exhibit J - Form of Special Warranty Deed
Exhibit K - Form of Bill of Sale
Exhibit L - Form of Assignment and Assumption of Leases
Exhibit M - Form of Assignment and Assumption of Contracts
and Project Documents
Exhibit N - Revised Legal Description
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
OPUS REAL ESTATE ARIZONA II, L.L.C.
By: _____________________________
Its: Vice President
PURCHASER:
JDA SOFTWARE GROUP, INC.
By: /s/ James D. Armstrong
-----------------------------
Its: ________________________
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
OPUS REAL ESTATE ARIZONA II,
L.L.C
By: /s/ Patrick S. Mascia
-----------------------------
Its: vice President
PURCHASER:
JDA SOFTWARE GROUP, INC.
By:______________________________
Its:__________________________
23
EXHIBIT A
LEGAL DESCRIPTION
PARCEL NO. 1:
That portion of Parcel 2, as shown on the Map of Dedication for NORTHSIGHT,
according to Book 302 of Maps, Page 11 and Affidavit of Correction recorded as
87-0478660 of Official Records, Maricopa County, Arizona, located in a portion
of the Southeast quarter of Section 12, Township 3 North, Range 4 East of the
Gila and Salt River Base and Meridian, Maricopa County, Arizona, more
particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, as shown on said MAP OF DEDICATION FOR NORTHSIGHT, according to
Book 302 of Maps, Page 11 and Affidavit of Correction recorded as 87-0478660,
Official Records of Maricopa County, Arizona, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, as shown on said MAP OF DEDICATION FOR NORTHSIGHT a distance of
661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the Parcel herein described;
thence North 89 degrees 52 minutes 51 seconds West, leaving said Westerly
right-of-way line, a distance of 770.93 feet;
thence North 00 degrees 13 minutes 51 seconds West, a distance of 272.42 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 772.60 feet to
a point on said Westerly right of way of 87th Street;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly right of
way, a distance of 272.41 feet to the POINT OF BEGINNING of the Parcel herein
described.
PARCEL NO. 2:
A non-exclusive easement for ingress, egress and utilities as set forth in
Easement Agreement recorded September 6, 2000 in 00-687539.
PARCEL NO. 3:
A portion of Parcel 2, as shown on the Map of Dedication for NORTHSIGHT,
according to Book 302 of Maps, Page 11 and Affidavit of Correction recorded in
87-0478660, of Official Records, located in a portion of the Southeast quarter
of Section 12, Township 3 North, Range 4
A-1
East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona,
more particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, a distance of 661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the parcel described herein;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly
right-of-way line, a distance of 148.03 feet to a point of curvature of a
tangent curve, concave Westerly, having a radius of 955.00 feet;
thence Southerly along the arc of said curve and said Westerly right-of-way
line, through a central angle of 22 degrees 46 minutes 21 seconds, 379.57 feet
to a point of non-tangency;
thence North 67 degrees 06 minutes 30 seconds West, a distance of 105.37 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 98.42 feet;
thence North 44 degrees 52 minutes 51 seconds West, a distance of 352.47 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 129.25 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 420.83 feet to
the POINT OF BEGINNING of the parcel described herein.
PARCEL NO. 4:
Easements as set forth in the Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale NORTHSIGHT dated January 6,
2004 and recorded January 6, 2004 as Document No. 2004-0012154 of Official
Records of Maricopa County, Arizona.
PARCEL NO. 5:
Easements as set forth in the Slope and Temporary Stock Pile, Staging and
Construction Easement Agreement dated June 23, 1998 and recorded June 26, 1998
as 98-546099 of Official Records, of Maricopa County, Arizona, as amended by
that certain First Amendment to Slope and Temporary Stockpile Staging and
Construction Easement Agreement recorded January 6, 2004 as Document No.
2004-0012151 of Official Records.
A-2
EXHIBIT B
SCHEDULE OF LEASES
1. Trapeze Software, Inc.
a. Lease dated August 26, 1999
b. Letter of Credit dated September 3, 2003
i. Amendment to LOG dated September 11, 2003
ii. Amendment to LOG dated September 17, 2003
2. JDA Software Group, Inc.
a. Lease dated April 30, 1998
b. First Amendment to Office Lease dated June 30, 1998
c. Second Amendment to Office Lease dated November 30, 1998
d. Letter Agreement dated October 6, 1999
e. Third Amendment to Office Lease dated October 8, 1999
f. Revised and Restated Third Amendment to Office Lease dated
October 20, 1999
g. Fourth Amendment to Office Lease dated May 30, 2001
h. Fifth Amendment to Office Lease dated May 31, 2001
i. Sixth Amendment to Office Lease dated August 31, 2003
j. Seventh Amendment to Office Lease dated June 30, 2003
3. McLeodUSA Telecommunication Services, Inc. *NOTE: THE MCLEOD LEASE WILL
TERMINATE ON JANUARY 31, 2004 PURSUANT TO THE TERMS OF THE MCLEOD
TERMINATION AGREEMENT*
a. Lease dated June 15, 2000
b. Guarantee dated May 5, 2000
c. Lease Termination Agreement dated January 15, 2004
4. Voice Stream PCS III, Corporation
a. Telecommunications License Agreement dated July 1, 2003
B-1
EXHIBIT C
SCHEDULE OF BROKER COMMISSIONS
NONE.
C-1
EXHIBIT D
SCHEDULE OF PERMITS
NONE.
D-1
EXHIBIT E
SCHEDULE OF SERVICE CONTRACTS
VENDOR DESCRIPTION START DATE END DATE
------ ----------- ---------- --------
Clola Enterprises Janitorial & Day Porter 1/1/2004 12/31/2004
Truly Nolen Pest Control 4/1/2003 3/31/2004
WE Landscape Group, LLC Landscape Maintenance 4/1/2003 3/31/2004
HiRise Service Window Washing 11/1/2003 10/31/2004
Parking Lot Light
Red Dog Illuminations Maintenance 5/1/2003 4/30/2004
Paradise Waste Trash Removal 6/1/2003 5/31/2004
Arizona Sterling Protection Security 6/1/2003 5/31/2004
Cactus Sweeping Parking Lot Sweeping 9/1/2003 8/31/2004
Arizona Fire & Security Alarm Monitoring 11/14/2003 -
Skyline Fire & Communications Fire Alarm Monitoring 3/16/1999 -
E-1
EXHIBIT F
SCHEDULE OF WARRANTIES
Name Product/Service Expiration Date
- ---------------------------------------------------------------------------------------
Pleko Southwest, Inc. EIFS 2/14/2004
Specialty Roofing Roof Work 3/31/2004
Pleko Insulated Finish
Canyon Plastering System 3/31/2004
Standard Restaurant
Equipment Co. Commercial Ice System 6/15/2004
GAP Materials
Corporation Roofing Membrane 3/31/2009
Thermopane Insulating
Interpane Glass 3/31/2009
Anodizing, Inc. Aluminum Painting 3/31/2019
Interstate Interior Washroom Partitions & Mirrors guaranteed against
Systems Accessories, Bicycle Racks silver spoilage until 3/3 1/14
3/31/09, Motors & Electrical
Mountain States MechoShade & ElectroShad accessories guaranteed until
Drapery System 3/31/04
Opus West Limited Warranty on December 14, 2004
Corporation Parking Facilities, pursuant
to Section 27 of Exchange
Agreement dated June 30,
2003
F-1
EXHIBIT G
FORM OF EARNEST MONEY ESCROW AGREEMENT
THIS EARNEST MONEY ESCROW AGREEMENT ("Agreement") is made as of
January_____, 2004, by and among OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware
limited liability company ("Seller"), JDA SOFTWARE GROUP, INC., a Delaware
corporation ("Purchaser"), and FIRST AMERICAN TITLE INSURANCE COMPANY, a
California corporation ("Escrow Agent").
RECITALS:
A. By that certain Purchase Agreement dated as of January____,
2004 ("Purchase Agreement"), between Seller and Purchaser, Seller has agreed to
sell to Purchaser and Purchaser has agreed to purchase from Seller all of
Seller's right, title and interest in and to the Subject Property, upon and
subject to the terms and provisions set forth in the Purchase Agreement.
B. Seller and Purchaser desire that Escrow Agent act as escrowee
to receive, hold and disburse funds in the manner hereinafter set forth.
C. Unless otherwise provided herein, all capitalized words and
terms used herein shall have the same meanings ascribed to such words and terms
as in the Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Upon execution of the Purchase Agreement, Purchaser shall
deposit with Escrow Agent the sum of Two Hundred Thirty-Eight Thousand and
00/100 Dollars ($238,000.00) as the Initial Earnest Money ("Initial Earnest
Money"). Within two (2) days after the Contingency Date, Purchaser shall deposit
One Million Two Hundred Sixty-Two Thousand and 00/100 Dollars ($1,262,000.00) as
Additional Earnest Money. Upon receipt by Escrow Agent, the Initial Earnest
Money and Additional Earnest Money shall be invested in Escrow Agent's separate
and segregated money market account. Purchaser shall be entitled to the interest
accrued on the Earnest Money and the Earnest Money shall include such accrued
interest. Escrow Agent shall acknowledge to Seller, in writing, receipt of the
Initial Earnest Money and Additional Earnest Money when it is delivered to
Escrow Agent.
2. Purchaser's Tax Identification Number is 86-0787377.
3. Escrow Agent is hereby released and exculpated of all
liability whatsoever arising out of or in connection with its activities as
Escrow Agent hereunder, except to the extent of loss or damage caused by its
negligence, breach of fiduciary duty, failure to comply with the terms of this
Earnest Money Escrow Agreement or willful misconduct. Purchaser and Seller
hereby jointly indemnify and hold Escrow Agent harmless from and against any and
all claims, liabilities, judgments, attorney's fees and other expenses of every
kind or nature arising out of this Earnest Money Escrow Agreement, other than
such claims, liabilities, judgments, attorney's
G-1
fees and other expenses resulting from the negligence, breach of fiduciary duty
or willful misconduct of Escrow Agent or Escrow Agent's failure to comply with
the terms of this Earnest Money Escrow Agreement.
4. In the event Escrow Agent receives written notice of default,
non-performance, dispute or exercise of right under the Purchase Agreement from
Seller or Purchaser accompanied by a demand for delivery to such party of the
Earnest Money, Escrow Agent is immediately to give written notice to the other
party of such claim and accompanying demand. In the event the other party fails
to dispute or object to such claim and demand within five (5) business days from
the date of Escrow Agent's written notice, Escrow Agent is authorized to deliver
the Earnest Money to the party making such claim and demand. In the event the
other party disputes or objects to the aforesaid claim and demand within the
5-business day period prescribed herein, Escrow Agent is not to deliver the
Earnest Money deposited hereunder without receipt of a mutual agreement of the
parties, in writing, or appropriate court order. In such an event, Escrow Agent
shall either hold the same, or at Escrow Agent's election, deposit the same with
a court of competent jurisdiction to determine how the Earnest Money should be
disbursed. Escrow Agent shall be entitled to rely on the decision of such court
with respect to the disposition of the Earnest Money. In the event of any
dispute regarding disposition of any portion of the Earnest Money, Escrow Agent
shall be entitled to consult with its counsel and receive reimbursement for all
reasonable expenses of such consultation with respect to its duties as Escrow
Agent. All such expenses shall be paid from the Earnest Money deposited herein
to the extent such funds are sufficient, with an amount equal to the same being
promptly paid to the recipient of the Earnest Money, whether Purchaser or
Seller, by the non-prevailing party in the dispute, whether Purchaser or Seller.
Subject to the foregoing, this Agreement shall at all times be subject to the
joint order of Seller and Purchaser and upon such joint order Escrow Agent shall
deliver the Earnest Money as instructed by such joint order.
5. There shall be no escrow fee hereunder. Purchaser shall be
responsible for payment of any investment fee.
6. Any notice or other communication in connection with this
Agreement shall be in writing and shall be sent by United States certified mail,
return receipt requested, postage prepaid, by nationally recognized overnight
courier guarantee next day delivery, by telecopy or facsimile transmission
(provided that such notice sent by facsimile is also sent via nationally
recognized overnight courier for guaranteed next business day delivery), or by
personal delivery, properly addressed as follows:
If to Seller: OPUS REAL ESTATE ARIZONA II, L.L.C.
10350 Bren Road West
Minnetonka, MN 55343
Attn: Patrick E. Mascia
Facsimile No.: (952) 656-4750
With a copy to: Opus L.L.C.
10350 Bren Road West
Minnetonka, MN 55343
G-2
Attn: Legal Department
Facsimile: (952) 656-4755
And a copy to: Briggs and Morgan, P.A.
2200 IDS Center
Minneapolis, MN 55402
Attn: Charles R. Haynor
Facsimile No.: (612) 977-8650
If to Purchaser: JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260
Attn: Paul Mehlhorn, VP-Finance and
Planning
Facsimile No.: (480) 308-4265
With a copy to: JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260
Attn: Michael
Bridge, Esq., VP and
General Counsel
Facsimile No.: (480) 308-3001
If to Escrow Agent: First American Title Insurance Company
4801 East Washington
Suite 110
Phoenix, AZ 85034
Attn: Carol Peterson
Facsimile No.: (602) 685-7580
Copies of all notices hereunder shall be sent to the Escrow Agent at the address
show above. All notices shall be deemed given three (3) business days following
deposit in the United States mail with respect to certified or registered
letters, one (1) business day following deposit if delivered to an overnight
courier guaranteeing next business day delivery and on the same day if sent by
personal delivery or by telecopy or facsimile transmission (with proof of
transmission). Attorneys for each party shall be authorized to give notices for
each such party. Any party may change its address for the service of notice by
giving written notice of such change to the other party, in any manner above
specified.
7. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns
under the Purchase Agreement.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona. In the event that any
provision hereof shall be deemed illegal or unenforceable, said provision shall
be severed herefrom and the remainder of this Agreement shall be enforced in
accordance with the intentions of the parties as herein expressed.
G-3
9. This Agreement may not be amended or altered except by an
instrument in writing executed by all the parties hereto.
10. If any party shall bring suit against the other to enforce the
terms of this Agreement, the losing party shall pay to the prevailing party the
prevailing party's costs and expenses (including, without limitation, reasonable
attorneys' fees and costs) incurred in enforcing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
OPUS REAL ESTATE ARIZONA II, L.L.C.
By:____________________________________
Its:_______________________________
PURCHASER:
JDA SOFTWARE GROUP, INC.
By:____________________________________
Its:_______________________________
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:_______________________________
Its:______________________________
G-4
EXHIBIT H
INTENTIONALLY OMITTED.
H-1
EXHIBIT I
FORM OF TENANT ESTOPPEL CERTIFICATE
TO: _________________________
_________________________
_________________________
RE: Property Address:
Lease Date:
Between_______________________________________, Landlord
and____________________________________________, Tenant
Square Footage Leased
Suite No.
Floor
The undersigned, Tenant under the above-referenced lease ("Lease"),
certifies to ______________, the following:
1. A true and correct copy of the Lease is attached hereto. The
Lease is in full force and effect and has not been canceled, modified, assigned,
extended or amended except as follows:
2. There is no prepaid rent, except $__________________and the
amount of security deposit is $___________________________, of which
$_____________________has been applied.
3. The Lease commenced on__________________,________, and the
current monthly Base Rent is___________________________. Base Rent was last paid
on__________________________, 2004 and has been paid
through______________________________, 2004.
4. The lease terminates on __________________, 2004 and we have
the following renewal option (s):_____________________________________________.
5. All work to be performed for us under the Lease has been
performed as required and has been accepted by us, except______________________.
6. The Lease is in full force and effect, free from default and
there are no claims against the Landlord or offsets against rent.
7. The undersigned has not assigned its interest in the Lease or
sublet the premises or any thereof or pledged or hypothecated its interest on
the Lease, except______________________.
8. That the premises as let are being used for the purpose as
described in said Lease.
9. The data in the heading of this Certificate are true and
correct.
10. There are no unpaid improvement allowances owing under the
Lease.
I-1
11. There are no agreements, other than the Lease, between
Landlord and the undersigned with respect to the premises.
12. The undersigned has not entered into any agreement with any
broker relating to the premises, pursuant to which any brokerage commission is
due.
The undersigned individual is duly authorized to execute and deliver
this certificate. The undersigned understands that you and your successors and
assigns will rely on this certificate in purchasing the subject property.
Dated this____________day of________________, 2004.
TENANT:
By:_________________________________________
Its:________________________________________
I-2
EXHIBIT J
FORM OF SPECIAL WARRANTY DEED
WHEN RECORDED RETURN TO
JDA SOFTWARE GROUP, INC.
14400 North 87th Street
Scottsdale, AZ 85260
Attn: Michael Bridge, Esq., VP and General Counsel
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
undersigned OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability
company (the "Grantor"), does hereby grant and convey to JDA SOFTWARE GROUP,
INC., a Delaware corporation (the "Grantee"), that certain real property
situated in Maricopa County, Arizona, legally described as set forth on Exhibit
A attached hereto, together with al rights and privileges appurtenant thereto
and any improvements thereon.
The above-described property is conveyed subject to all taxes and other
assessments, reservations in patents, and all easements, rights of way,
encumbrances, liens, covenants, conditions, restrictions, obligations and
liabilities that are listed on Exhibit B attached hereto.
The Grantor hereby binds itself and its successors to warrant and
defend the title as against all acts of the Grantor herein and no other, subject
to the matters above set forth.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be
executed this _____day of_______________________, 2004.
OPUS REAL ESTATE ARIZONA II, L.L.C.,
a Delaware limited liability company
By_____________________________________
Name:__________________________________
Title:_________________________________
J-1
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
___________________ day of_________________, 2004, by___________________, the
Vice President of Opus Real Estate Arizona II, L.L.C., a Delaware limited
liability company, on behalf of said limited liability company.
____________________________________
Notary Public
My commission expires:___________________
J-2
EXHIBIT "A" TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
PARCEL NO. 1:
Parcel 3, as shown on the Map of Dedication for Northsight II, according to
Book_____________________of Maps, Page_______, Records of Maricopa County,
Arizona, located in a portion of Parcel 2 of the Map of Dedication for
Northsight per Book 302 of Maps, Page________________, Maricopa County Records
and also a portion of the Southeast Quarter of Section 12, Township 3 North,
Range 4 East of the Gila and Salt River Base and Meridian, Maricopa County,
Arizona, more particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, as shown on said MAP OF DEDICATION FOR NORTHSIGHT, according to
Book 302 of Maps, Page 11 and Affidavit of Correction recorded as 87-0478660,
Official Records of Maricopa County, Arizona, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, as shown on said MAP OF DEDICATION FOR NORTHSIGHT a distance of
661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the Parcel herein described;
thence North 89 degrees 52 minutes 51 seconds West, leaving said Westerly
right-of-way line, a distance of 770.93 feet;
thence North 00 degrees 13 minutes 51 seconds West, a distance of 272.42 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 772.60 feet to
a point on said Westerly right of way of 87th Street;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly right of
way, a distance of 272.41 feet to the POINT OF BEGINNING of the Parcel herein
described.
PARCEL NO. 2:
A non-exclusive easement for ingress, egress and utilities as set forth in
Easement Agreement recorded September 6, 2000 in 00-687539.
PARCEL NO. 3:
Parcel 2, as shown on the Map of Dedication for Northsight II, according to
Book____of Maps, Page______, Records of Maricopa County, Arizona, located in a
portion of Parcel 2 of the Map of Dedication for Northsight per Book 302 of
Maps, Page______, Maricopa County Records and also a
J-3
portion of the Southeast Quarter of Section 12, Township 3 North, Range 4 East
of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, more
particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, a distance of 661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the parcel described herein;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly
right-of-way line, a distance of 148.03 feet to a point of curvature of a
tangent curve, concave Westerly, having a radius of 955.00 feet;
thence Southerly along the arc of said curve and said Westerly right-of-way
line, through a central angle of 22 degrees 46 minutes 21 seconds, 379.57 feet
to a point of non-tangency;
thence North 67 degrees 06 minutes 30 seconds West, a distance of 105.37 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 98.42 feet;
thence North 44 degrees 52 minutes 51 seconds West, a distance of 352.47 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 129.25 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 420.83 feet to
the POINT OF BEGINNING of the parcel described herein.
PARCEL NO. 4:
Easements as set forth in the Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale NORTHSIGHT dated January 6,
2004 and recorded January 6, 2004 as Document No. 0012154 of Official Records of
Maricopa County, Arizona.
PARCEL NO. 5:
Easements as set forth in the Slope and Temporary Stock Pile, Staging and
Construction Easement Agreement dated June 23, 1998 and recorded June 26, 1998
as 98-546099 of Official Records, of Maricopa County, Arizona, as amended by
that certain First Amendment to Slope
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and Temporary Stockpile Staging and Construction Easement Agreement recorded
January 6, 2004 as Document No. 2004-0012151 of Official Records.
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EXHIBIT "B" TO SPECIAL WARRANTY DEED
PERMITTED ENCUMBRANCES
1. Second installment of 2003 taxes, a lien, payable on or before March 1,
2004, and delinquent May 1, 2004 (affects all parcels).
2. Reservations contained in the Patent from the United States of America,
reading as follows:
Subject to any vested and accrued water rights for mining,
agricultural, manufacturing, or other purposes, and rights to ditches
and reservoirs used in connection with such water rights as may be
recognized and acknowledged by the local customs, laws and decisions of
courts; and there is reserved from the lands hereby granted, a right of
way thereon for ditches or canals constructed by the authority of the
United States of America.
Affects all parcels.
3. Water rights, claims or title to water, whether or not shown by the
public records (affects all parcels).
4. Easements, restrictions, reservations, conditions and set-back lines as
set forth on the plat recorded in Book 302 of Maps, Page 11 and
Affidavit of Correction recorded as 87- 478660 of Official Records and
Restrictions set forth in Notes 2 3 and 4 of said Map of Dedication,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color,
religion, sex, handicap, familial status or national origin to the
extent such covenants, conditions or restrictions violate 42 USC
3604(c) (affects all parcels).
5. The terms, conditions and provisions contained in the document entitled
"Slope and Temporary Stockpile, Staging and Construction Easement
Agreement" recorded June 26, 1998 as 98-0546099 of Official Records and
First Amendment to Slope and Temporary Stockpile, Staging and
Construction Easement Agreement recorded January 6, 2004 as Document
No. 2004-0012151 of Official Records (Affects parcels 1, 2 and 3 only).
6. The terms, conditions and provisions contained in the document entitled
"City of Scottsdale Lot Split Approval" recorded December 3, 1998 as
98-1096697 of Official Records (affects all parcels).
7. The terms, conditions and provisions contained in the document entitled
"Easement Agreement" recorded September 6, 2000 as 2000-0687539 of
Official Records (affects parcels 1 and 2).
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8. The terms, conditions and provisions contained in the document entitled
"City of Scottsdale Lot Split Approval" recorded September 27, 2000 as
2000-0737007 of Official Records (affects parcels 1 and 2).
9. The terms, conditions and provisions contained in the document entitled
"Memorandum of Design Approval Rights" recorded August 31, 2001 as
2001-0813633 of Official Records (affects parcels 1 and 2).
10. The following matters disclosed by an ALTA/ACSM survey made by DEI
Professional Services, L.L.C. on January 23, 2003, designated Job No.
02082 (affects parcels 1 and 2):
a) The fact that a dirt ditch runs North to South along an
Easterly portion of said land.
b) Encroachment of curbing and asphalt and sign in a Southeastern
portion of said land outside driveway easement.
11. The terms, conditions and provisions contained in the document entitled
"Development Fee Agreement" recorded September 22, 2003 as 2003-1329156
of Official Records (affects all parcels).
12. Covenants, conditions and restrictions in the Declaration of Covenants,
Conditions and Restrictions and Grant of Easements for Scottsdale
Northsight document recorded January 6, 2004 as Document No.
2004-0012154 of Official Records, but deleting any covenant, condition
or restriction indicating a preference, limitation or discrimination
based on race, color, religion, sex, handicap, familial status, or
national origin, to the extent such covenants, conditions or
restrictions violate Title 42, Section 3604(c), of the United States
Codes (affects all parcels).
13. The terms, conditions and provisions contained in the document entitled
"City of Scottsdale Drainage and Flood Control Easement and Provision
for Maintenance" recorded October 29, 2003 as 2003-1502695 of Official
Records (affects parcels 1, 2, 3 and 4 only).
14. An easement for sight distance and incidental purposes, recorded as
2003-1509935 of Official Records (affects all parcels).
15. Easement for electric lines and incidental purposes, recorded as
98-1081935 of Official Records (parcels 3, 4 and 5 only).
16. The terms, conditions and provisions contained in the document entitled
"City of Scottsdale Lot Split Approval" recorded March 17, 2003 as
2003-0325766 of Official Records (affects parcels 3, 4 and 5 only).
17. The terms, conditions and provisions contained in the document entitled
"Development Fee Agreement" recorded January 14, 1999 as 99-38588 of
Official Records (affects parcels 3, 4 and 5 only).
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18. Rights of Trapeze Software, Inc., as tenant only, under an unrecorded
lease dated August 26, 1999, as disclosed by Subordination, Attornment
and Non-Disturbance Agreement recorded November 9, 1999 as 99-1030456
of Official Records (affects parcels 3, 4 and 5 only). The lease under
which the tenant is occupying space does not contain any options to
purchase or rights of first refusal covering all or any portion of the
fee interest in the land or the building thereon.
19. Rights of JDA Software Group, Inc., as tenant only, under an unrecorded
lease dated April 30, 1998, as disclosed by Subordination, Attornment
and Non-Disturbance Agreement recorded November 9, 1999 as 99-1030457
of Official Records (affects parcels 3, 4 and 5 only). The lease under
which the tenant is occupying space does not contain any options to
purchase or rights of first refusal covering all or any portion of the
fee interest in the land or the building thereon.
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EXHIBIT K
FORM OF BILL OF SALE
BILL OF SALE
This Bill of Sale ("Bill of Sale") is executed this______________day
of__________________________, 2004, by OPUS REAL ESTATE ARIZONA II, L.L.C., a
limited liability company created and existing under and by virtue of the laws
of the State of Delaware ("Seller"), in favor of JDA SOFTWARE GROUP, INC., a
Delaware corporation ("Purchaser").
1. Reference to Purchase Agreement. Reference is made to that
certain Purchase Agreement dated as of January______________, 2004, by and
between Seller and Purchaser, pursuant to which Seller has agreed to sell to
Purchaser, and Purchaser has agreed to purchase from Seller, the improved real
property and other assets described therein ("Purchase Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meaning set
forth in the Purchase Agreement.
2. Sale. For good and valuable consideration received by Seller,
the receipt and sufficiency of which are hereby acknowledged, Seller hereby
sells, assigns and transfers the Personal Property to Purchaser.
3. Warranties. Seller makes no warranties or representations as
to the Personal Property. Among other things, all warranties of quality, fitness
for a particular purpose or merchantability are hereby expressly excluded.
In witness whereof Seller has executed this Bill of Sale the day and
year first above written.
Seller:
OPUS REAL ESTATE ARIZONA II, L.L.C.
By______________________________________
Its__________________________________
K-1
EXHIBIT L
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is made as
of________________, 2004 ("Effective Date"), by and between OPUS REAL ESTATE
ARIZONA II, L.L.C., a Delaware limited liability company ("Assignor"), and JDA
SOFTWARE GROUP, INC., a Delaware corporation ("Assignee").
RECITALS:
A. Assignee has acquired from Assignor title to that certain real
property, and any improvements situated thereon owned by Assignor, more
particularly described on Exhibit "A" attached hereto ("Property") pursuant to a
Purchase Agreement dated as of January_______________, 2004 (the "Purchase
Agreement").
B. In connection with the conveyance of the Property from
Assignor to Assignee, Assignor and Assignee intend and agree that, except as
provided below, all of Assignor's rights as lessor under the leases, together
with all amendments or modifications thereto, including the rights to all
security deposits, letters of credit, delinquent rents and charges, prepaid
rents and all guaranties thereof, as set forth on Exhibit "B" attached hereto
(each a "Lease," and collectively, the "Leases"), shall be assigned to Assignee.
C. Assignee has agreed to assume all of the obligations of
Assignor under the Leases as set forth herein.
AGREEMENT:
In consideration of the foregoing recitals and other good and valuable
consideration, Assignor and Assignee agree as follows:
1. ASSIGNMENT BY ASSIGNOR. Assignor hereby assigns and transfers
to Assignee all right, title and interest of Assignor in and to each of the
Leases together with any rights relating thereto, including without limitation
all rents, issues, profits therefrom, all guaranties thereof and all security
deposits and letters of credit relating thereto. Notwithstanding the foregoing,
Assignor reserves the right to enforce against the tenants under the Leases all
obligations or duties of such tenants that arose or accrued prior to the
Effective Date, provided, however, in no event shall Assignor terminate any
Lease or disturb any tenant's right to occupy its respective premises as a
result of Assignor's enforcement of such reserved rights.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the
assignment of the Leases and assumes and agrees to keep, perform and fulfill all
of the duties, covenants, provisions, conditions and obligations of the landlord
in the Leases which arise or are incurred or are related to events occurring
from and after the Effective Date.
L-1
3. INDEMNIFICATION BY ASSIGNOR. Assignor will indemnify, defend
and hold harmless Assignee and Assignee's employees, partners, directors,
officers, affiliates, subsidiaries, shareholders, agents and representatives
from any and all liabilities, claims, damages, costs or expenses (including
reasonable attorneys' fees) arising under the Leases as a result of any
obligations and duties of the landlord thereunder arising prior to the Effective
Date. Notwithstanding the foregoing, to the extent that (a) Assignor would be
entitled under the IDA Lease (as defined in the Purchase Agreement) to pass
through any such liabilities, claims, damages, costs or expenses to the tenant
under the JDA Lease and/or (b) any such liabilities, claims, damages, costs or
expenses result from the acts or omissions of Assignee as tenant under the JDA
Lease, Assignor shall have no liability to Assignee under this Agreement.
4. INDEMNIFICATION BY ASSIGNEE. Assignee will indemnify, defend
and hold harmless Assignor and Assignor's employees, partners, directors,
officers, affiliates, subsidiaries, shareholders, agents and representatives
from any and all liabilities, claims, damages, costs or expenses (including
reasonable attorneys' fees) arising under the Leases as a result of any
obligations and duties of landlord thereunder arising on or after the Effective
Date.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
6. AUTHORITY. Each of the parties signing this Assignment hereby
warrants and represents that it has the full legal power, authority and right to
execute, deliver and perform the obligations under this Assignment, that this
Assignment has been duly authorized by all requisite actions on the part of such
warranting party, and that no remaining action or third party action is required
to make this Assignment binding upon such party.
7. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State in which the Property is located.
8. ATTORNEYS' FEES. If either party commences litigation against
the other for the specific performance of this Assignment, the interpretation of
this Assignment, for damages for the breach hereof or otherwise for enforcement
of any remedy hereunder, the parties hereto agree, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as may have been
incurred. Any attorneys' fees incurred in enforcing any right of indemnity set
forth in this Assignment shall be recoverable and deemed to be within the scope
of such indemnity and/or this attorneys' fees provision.
9. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which, when so executed and when delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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Assignor and Assignee have executed this Assignment as of the Effective Date.
ASSIGNOR:
OPUS REAL ESTATE ARIZONA II, L.L.C.
By______________________________________
Its_________________________________
ASSIGNEE:
JDA SOFTWARE GROUP, INC.
By______________________________________
Its_________________________________
L-3
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASES
(LEGAL DESCRIPTION)
PARCEL NO. 1:
Parcel 3, as shown on the Map of Dedication for Northsight II, according to Book
____________ of Maps, Page _______, Records of Maricopa County, Arizona, located
in a portion of Parcel 2 of the Map of Dedication for Northsight per Book 302 of
Maps, Page__________, Maricopa County Records and also a portion of the
Southeast Quarter of Section 12, Township 3 North, Range 4 East of the Gila and
Salt River Base and Meridian, Maricopa County, Arizona, more particularly
described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, as shown on said MAP OF DEDICATION FOR NORTHSIGHT, according to
Book 302 of Maps, Page 11 and Affidavit of Correction recorded as 87-0478660,
Official Records of Maricopa County, Arizona, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, as shown on said MAP OF DEDICATION FOR NORTHSIGHT a distance of
661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the Parcel herein described;
thence North 89 degrees 52 minutes 51 seconds West, leaving said Westerly
right-of-way line, a distance of 770.93 feet;
thence North 00 degrees 13 minutes 51 seconds West, a distance of 272.42 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 772.60 feet to
a point on said Westerly right of way of 87th Street;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly right of
way, a distance of 272.41 feet to the POINT OF BEGINNING of the Parcel herein
described.
PARCEL NO. 2:
A non-exclusive easement for ingress, egress and utilities as set forth in
Easement Agreement recorded September 6, 2000 in 00-687539.
PARCEL NO. 3:
Parcel 2, as shown on the Map of Dedication for Northsight II, according to
Book _________ of Maps,
L-4
Page_______, Records of Maricopa County, Arizona, located in a portion of Parcel
2 of the Map of Dedication for Northsight per Book 302 of Maps, Page______,
Maricopa County Records and also a portion of the Southeast Quarter of Section
12, Township 3 North, Range 4 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona, more particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, a distance of 661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the parcel described herein;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly
right-of-way line, a distance of 148.03 feet to a point of curvature of a
tangent curve, concave Westerly, having a radius of 955.00 feet;
thence Southerly along the arc of said curve and said Westerly right-of-way
line, through a central angle of 22 degrees 46 minutes 21 seconds, 379.57 feet
to a point of non-tangency;
thence North 67 degrees 06 minutes 30 seconds West, a distance of 105.37 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 98.42 feet;
thence North 44 degrees 52 minutes 51 seconds West, a distance of 352.47 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 129.25 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 420.83 feet to
the POINT OF BEGINNING of the parcel described herein.
PARCEL NO. 4:
Easements as set forth in the Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale NORTHSIGHT dated January 6,
2004 and recorded January 6, 2004 as Document No. 0012154 of Official Records of
Maricopa County, Arizona.
PARCEL NO. 5:
Easements as set forth in the Slope and Temporary Stock Pile, Staging and
Construction Easement Agreement dated June 23, 1998 and recorded June 26, 1998
as 98-546099 of Official
L-5
Records, of Maricopa County, Arizona, as amended by that certain First Amendment
to Slope and Temporary Stockpile Staging and Construction Easement Agreement
recorded January 6, 2004 as Document No. 2004-0012151 of Official Records.
L-6
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF LEASES
(SCHEDULE OF LEASES)
1. Trapeze Software, Inc.
a. Lease dated August 26, 1999
b. Letter of Credit dated September 3, 2003
i. Amendment to LOC dated September 11, 2003
ii. Amendment to LOC dated September 17, 2003
2. JDA Software Group, Inc.
a. Lease dated April 30, 1998
b. First Amendment to Office Lease dated June 30, 1998
c. Second Amendment to Office Lease dated November 30, 1998
d. Letter Agreement dated October 6, 1999
e. Third Amendment to Office Lease dated October 8, 1999
f. Revised and Restated Third Amendment to Office Lease dated October
20, 1999
g. Fourth Amendment to Office Lease dated May 30, 2001
h. Fifth Amendment to Office Lease dated May 31, 2001
i. Sixth Amendment to Office Lease dated August 31, 2003
j. Seventh Amendment to Office Lease dated June 30, 2003
3. Voice Stream PCS III, Corporation
a. Telecommunications License Agreement dated July 1, 2003
L-1
EXHIBIT M
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROJECT DOCUMENTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROJECT DOCUMENTS
("Assignment") is made as of_________________, 2004 ("Effective Date"), by and
between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability
company ("Assignor"), and JDA SOFTWARE GROUP, INC., a Delaware corporation
("Assignee").
RECITALS:
A. Assignee has acquired from Assignor title to that certain real
property, and any improvements situated thereon owned by Assignor, more
particularly described on Exhibit "A" attached hereto ("Property").
B. In connection with the conveyance of the Property from
Assignor to Assignee, Assignor and Assignee intend and agree that Assignor's
right, title and interest in the agreements set forth on Exhibit "B" attached
hereto and all licenses, authorizations, approvals, permits, entitlements,
warranties, guaranties, approvals, certificates of occupancy, certificates,
surveys and reports, including, without limitation, any hazardous materials
reports, engineering and soils reports and any ALTA surveys, if any, in the
possession of Assignor, relating to the acquisition, construction, design, use,
operation, management or maintenance of the Property (collectively, the
"Contracts and Project Documents"), to the extent assignable, shall inure to the
benefit of and be assigned and transferred to Assignee.
AGREEMENT:
In consideration of the foregoing recitals and other good and valuable
consideration, Assignor and Assignee agree as follows:
1. ASSIGNMENT BY ASSIGNOR. To the extent assignable, Assignor
hereby assigns and transfers to Assignee all right, title and interest of
Assignor in the Contracts and Project Documents, together with any rights owned
by Assignor relating thereto. Notwithstanding the foregoing, Assignor reserves
the right to (a) enforce the provisions of the Contracts and Project Documents
in respect to all obligations or duties of the other party thereto that arose or
accrued prior to the Effective Date, and (b) exercise such rights under the
Contracts and Project Documents as are necessary in order for Assignor to
fulfill its obligations under the purchase agreement dated the Effective Date by
and between Assignor and Assignee relating to the Property ("Agreement"),
provided, however, in no event shall Assignor terminate any of the Contracts and
Project Documents as a result of Assignor's enforcement of such reserved rights.
2. LIMITED LICENSE. Assignor grants to Assignee a limited license
to use the plans and specifications relating to the construction of the
improvements on the Property in Assignor's possession for the purposes and
subject to the conditions and indemnifications as set forth in the Agreement.
M-1
3. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the
assignment of the Contracts and Project Documents, and Assignee assumes and
agrees to keep, perform and fulfill all of the duties, covenants, provisions,
conditions and obligations of Assignor contained therein which arise or are
incurred or are related to events occurring from and after the Effective Date.
4. INDEMNIFICATION BY ASSIGNOR. Assignor will indemnify, defend
and hold harmless Assignee and Assignee's employees, partners, directors,
officers, affiliates, subsidiaries, shareholders, agents and representatives
from any and all liabilities, claims, demands, damages, losses, costs or
expenses (including reasonable attorneys' fees) arising under the Contracts and
Project Documents as a result of any obligations and duties of Assignor
thereunder arising or accruing prior to the Effective Date.
5. INDEMNIFICATION BY ASSIGNEE. Assignee will indemnify, defend
and hold harmless Assignor and Assignor's employees, partners, directors,
officers, affiliates, subsidiaries, shareholders, agents and representatives
from any and all liabilities, claims, demands, damages, losses, costs or
expenses (including reasonable attorneys' fees) arising under the Contracts and
Project Documents as a result of any obligations and duties of Assignor
thereunder arising or accruing from and after the Effective Date, except for
those matters described in Section 3 hereof which are Assignor's responsibility.
6. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
7. AUTHORITY. Each of the parties signing this Assignment hereby
warrants and represents that it has the full legal power, authority and right to
execute, deliver and perform the obligations under this Assignment, that this
Assignment has been duly authorized by all requisite actions on the part of such
warranting party, and that no remaining action or third party action is required
to make this Assignment binding upon such party.
8. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State in which the Property is located.
9. ATTORNEYS' Fees. If either party commences litigation against
the other for the specific performance of this Assignment, the interpretation of
this Assignment, for damages for the breach hereof or otherwise for enforcement
of any remedy hereunder, the parties hereto agree, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as may have been
incurred. Any attorneys' fees incurred in enforcing any right of indemnity set
forth in this Assignment shall be recoverable and deemed to be within the scope
of such indemnity and/or this attorneys' fees provision.
10. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which, when so executed and when delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
M-2
Assignor and Assignee have executed this Assignment as of the Effective Date.
ASSIGNOR:
OPUS REAL ESTATE ARIZONA II, L.L.C.
By ____________________________________
Its_________________________________
ASSIGNEE:
JDA SOFTWARE GROUP, INC.
By ____________________________________
Its_________________________________
M-3
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND
PROJECT DOCUMENTS
(LEGAL DESCRIPTION)
PARCEL NO. 1:
Parcel 3, as shown on the Map of Dedication for Northsight II, according to Book
_________ of Maps, Page _____, Records of Maricopa County, Arizona, located in a
portion of Parcel 2 of the Map of Dedication for Northsight per Book 302 of
Maps, Page _______, Maricopa County Records and also a portion of the Southeast
Quarter of Section 12, Township 3 North, Range 4 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona, more particularly described as
follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, as shown on said MAP OF DEDICATION FOR NORTHSIGHT, according to
Book 302 of Maps, Page 11 and Affidavit of Correction recorded as 87-0478660,
Official Records of Maricopa County, Arizona, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, as shown on said MAP OF DEDICATION FOR NORTHSIGHT a distance of
661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the Parcel herein described;
thence North 89 degrees 52 minutes 51 seconds West, leaving said Westerly
right-of-way line, a distance of 770.93 feet;
thence North 00 degrees 13 minutes 51 seconds West, a distance of 272.42 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 772.60 feet to
a point on said Westerly right of way of 87th Street;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly right of
way, a distance of 272.41 feet to the POINT OF BEGINNING of the Parcel herein
described.
PARCEL NO. 2:
A non-exclusive easement for ingress, egress and utilities as set forth in
Easement Agreement recorded September 6, 2000 in 00-687539.
PARCEL NO. 3:
M-4
Parcel 2, as shown on the Map of Dedication for Northsight II, according to Book
_________ of Maps, Page ______, Records of Maricopa County, Arizona, located in
a portion of Parcel 2 of the Map of Dedication for Northsight per Book 302 of
Maps, Page ______, Maricopa County Records and also a portion of the Southeast
Quarter of Section 12, Township 3 North, Range 4 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona, more particularly described as
follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, a distance of 661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the parcel described herein;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly
right-of-way line, a distance of 148.03 feet to a point of curvature of a
tangent curve, concave Westerly, having a radius of 955.00 feet;
thence Southerly along the arc of said curve and said Westerly right-of-way
line, through a central angle of 22 degrees 46 minutes 21 seconds, 379.57 feet
to a point of non-tangency;
thence North 67 degrees 06 minutes 30 seconds West, a distance of 105.37 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 98.42 feet;
thence North 44 degrees 52 minutes 51 seconds West, a distance of 352.47 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 129.25 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 420.83 feet to
the POINT OF BEGINNING of the parcel described herein.
PARCEL NO. 4:
Easements as set forth in the Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale NORTHSIGHT dated January 6,
2004 and recorded January 6, 2004 as Document No. 0012154 of Official Records of
Maricopa County, Arizona.
PARCEL NO. 5:
Easements as set forth in the Slope and Temporary Stock Pile, Staging and
Construction
M-5
Easement Agreement dated June 23, 1998 and recorded June 26, 1998 as 98-546099
of Official Records, of Maricopa County, Arizona, as amended by that certain
First Amendment to Slope and Temporary Stockpile Staging and Construction
Easement Agreement recorded January 6, 2004 as Document No. 2004-0012151 of
Official Records.
M-6
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROJECT
DOCUMENTS
(CERTAIN ASSIGNED AGREEMENTS)
SERVICE CONTRACTS:
1.
WARRANTIES:
M-1
EXHIBIT N
Revised Legal Description PARCEL NO. 1:
Parcel 3, as shown on the Map of Dedication for Northsight II, according to Book
________ of Maps, Page _______, Records of Maricopa County, Arizona, located in
a portion of Parcel 2 of the Map of Dedication for Northsight per Book 302 of
Maps, Page _____, Maricopa County Records and also a portion of the Southeast
Quarter of Section 12, Township 3 North, Range 4 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona, more particularly described as
follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, as shown on said MAP OF DEDICATION FOR NORTHSIGHT, according to
Book 302 of Maps, Page 11 and Affidavit of Correction recorded as 87-0478660,
Official Records of Maricopa County, Arizona, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, as shown on said MAP OF DEDICATION FOR NORTHSIGHT a distance of
661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the Parcel herein described;
thence North 89 degrees 52 minutes 51 seconds West, leaving said Westerly
right-of-way line, a distance of 770.93 feet;
thence North 00 degrees 13 minutes 51 seconds West, a distance of 272.42 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 772.60 feet to
a point on said Westerly right of way of 87th Street;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly right of
way, a distance of 272.41 feet to the POINT OF BEGINNING of the Parcel herein
described.
PARCEL NO. 2:
A non-exclusive easement for ingress, egress and utilities as set forth in
Easement Agreement recorded September 6, 2000 in 00-687539.
PARCEL NO. 3:
Parcel 2, as shown on the Map of Dedication for Northsight II, according to Book
_______ of Maps, Page ______, Records of Maricopa County, Arizona, located in a
portion of Parcel 2 of the Map of
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Dedication for Northsight per Book 302 of Maps, Page __, Maricopa County Records
and also a portion of the Southeast Quarter of Section 12, Township 3 North,
Range 4 East of the Gila and Salt River Base and Meridian, Maricopa County,
Arizona, more particularly described as follows:
COMMENCING at the East quarter corner of said Section 12;
thence North 89 degrees 58 minutes 13 seconds West, along the monument line of
Raintree Drive, a distance of 660.08 feet;
thence South 00 degrees 07 minutes 09 seconds West, along the monument line of
87th Street, a distance of 661.93 feet;
thence North 89 degrees 52 minutes 51 seconds West, a distance of 45.00 feet to
a point on the Westerly right-of-way line of said 87th Street and also the POINT
OF BEGINNING of the parcel described herein;
thence South 00 degrees 07 minutes 09 seconds West, along said Westerly
right-of-way line, a distance of 148.03 feet to a point of curvature of a
tangent curve, concave Westerly, having a radius of 955.00 feet;
thence Southerly along the arc of said curve and said Westerly right-of-way
line, through a central angle of 22 degrees 46 minutes 21 seconds, 379.57 feet
to a point of non-tangency;
thence North 67 degrees 06 minutes 30 seconds West, a distance of 105.37 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 98.42 feet;
thence North 44 degrees 52 minutes 51 seconds West, a distance of 352.47 feet;
thence North 00 degrees 07 minutes 09 seconds East, a distance of 129.25 feet;
thence South 89 degrees 52 minutes 51 seconds East, a distance of 420.83 feet to
the POINT OF BEGINNING of the parcel described herein.
PARCEL NO. 4:
Easements as set forth in the Declaration of Covenants, Conditions and
Restrictions and Grant of Easements for Scottsdale NORTHSIGHT dated January 6,
2004 and recorded January 6, 2004 as Document No. 0012154 of Official Records of
Maricopa County, Arizona.
PARCEL NO. 5:
Easements as set forth in the Slope and Temporary Stock Pile, Staging and
Construction Easement Agreement dated June 23, 1998 and recorded June 26, 1998
as 98-546099 of Official Records, of Maricopa County, Arizona, as amended by
that certain First Amendment to Slope
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and Temporary Stockpile Staging and Construction Easement Agreement recorded
January 6, 2004 as Document No. 2004-0012151 of Official Records
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