AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS

 

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                                                                      EXHIBIT 99

 

                         AGREEMENT FOR PURCHASE AND SALE

                    OF REAL PROPERTY AND ESCROW INSTRUCTIONS

 

THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS

("Agreement") is made and entered into as of this_____ day of January, 2005, by

and between TREIT - City Center West A, LLC, a Nevada limited liability company,

NNN City Center West A1, LLC, a Nevada limited liability company, NNN City

Center West A3, LLC, a Nevada limited liability company NNN City Center West A4,

LLC, a Nevada limited liability company (collectively, "Seller"), and United

Insurance Company of America or its assigns ("Buyer"), with reference to the

following facts:

 

      A.     Seller owns certain real property located in Las Vegas, Nevada and

            more specifically described in Exhibit A attached hereto (the

            "Land"), commonly known as City Center West A and such other assets,

            as the same are herein described.

 

      B.     Seller desires to sell to Buyer and Buyer desires to purchase from

            Seller the Land and the associated assets.

 

NOW, THEREFORE, in consideration of the mutual covenants, premises and

agreements herein contained, the parties hereto do hereby agree as follows:

 

1.     Purchase and Sale.

 

         1.1.      The purchase and sale includes, and at Close of Escrow

                  (hereinafter defined) Seller shall sell, assign, grant and

                  transfer to Buyer, Seller's entire right and interest in and

                  to all of the following (hereinafter sometimes collectively,

                  the "Property"):

 

            1.1.1. The Land, together with all structures, buildings,

                    improvements, machinery, fixtures, and equipment affixed or

                   attached to the Land and all easements and rights appurtenant

                   to the Land (all of the foregoing being collectively referred

                   to herein as the "Real Property");

 

            1.1.2. All leases (the "Leases"), including associated amendments,

                   with all persons ("Tenants") leasing the Real Property or any

                   part thereof or hereafter entered into in accordance with the

                   terms hereof prior to Close of Escrow, together with all

                   security deposits, other deposits held in connection with the

                   Leases, Lease guarantees and other similar credit

                    enhancements

 

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                   providing additional security for such Leases (attached

                   hereto as Exhibit 1.1.2 is a current "Rent Roll" for the

                   Property);

 

             1.1.3. All tangible and intangible personal property owned by Seller

                   located on or used in connection with the Real Property,

                   including, specifically, without limitation, equipment,

                   furniture, tools and supplies, and all related intangibles

                   including Seller's interest, if any, in the name "City Center

                   West A" (the "Personal Property");

 

            1.1.4. All service contracts (that Buyer elects to assume),

                    agreements (that Buyer elects to assume), warranties and

                   guaranties relating to the operation of the Property (the

                   "Contracts"); and

 

            1.1.5. To the extent transferable, all building permits,

                   certificates of occupancy and other certificates, permits,

                   licenses and approvals relating to the Property (the

                   "Permits").

 

2.     Purchase Price.

 

      The total Purchase Price of the Property shall be Twenty Seven Million Six

      Hundred Ten Thousand Dollars ($27,610,000) ("Purchase Price") payable as

      follows:

 

         2.1.      Deposit/Further Payments/Down Payment.

 

            2.1.1. Concurrent with Opening of Escrow (as hereinafter defined),

                   Buyer shall deposit into Escrow the amount of One Hundred

                   Thousand ($100,000) (the "Initial Deposit"), in the form of a

                   wire transfer payable to Ticor Title Insurance Company, 777

                    N. Rainbow Boulevard, Suite 150, Las Vegas, Nevada 89107,

                   Attn: Amy Childress ["Escrow Holder"). Escrow Holder shall

                   place the Deposit into an interest bearing money market

                   account at a bank or other financial institution reasonably

                   satisfactory to Buyer, and interest thereon shall be credited

                   to Buyer's account.

 

            2.1.2. Upon the expiration of the Inspection Period (hereafter

                    defined) Buyer shall deposit into Escrow the amount of One

                   Hundred Thousand ($100,000) (the "Additional Deposit"). The

                   Initial Deposit and the Additional Deposit shall collectively

                   be referred to herein as the "Deposit".

 

            2.1.3. On or before Close of Escrow, Buyer shall deposit into Escrow

                   the balance of the Purchase Price less the outstanding

                   principal balance as of the Close of Escrow of that certain

                   loan (the

 

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                   "Loan") made by The Manufacturer's Life Insurance Company

                   (U.S.A.) (the "Lender") to Seller, by wire transfer payable

                   to Escrow Holder. Buyer shall be required to pay all loan

                   assumption fees charged by the Lender (including, if

                   applicable, any fees of Lender's counsel). The unpaid

                   principal balance of the Loan as of December 31, 2004 was

                   $12,484,175.66; the interest is payable on the unpaid

                   principal balance at the rate of 6.5% per annum; and the fee

                   for assuming the Loan is one percent (1%) of the outstanding

                   principal balance paid by Buyer. Buyer shall submit a formal

                   loan application for assumption of the Loan within thirty

                   (30) days after Opening of Escrow and must secure Lender's

                   approval for the assumption within sixty (60) calendar days

                   ("Loan Assumption Period") following the Opening of Escrow.

                   Buyer shall have the right to terminate this Agreement prior

                   to the expiration of the Loan Assumption Period if any aspect

                   of the loan documents or proposed loan assumption are

                   unacceptable to Buyer. Buyer shall pursue the loan assumption

                   with the Lender diligently and in good faith. It shall be a

                   condition precedent to both parties' obligations to close

                   that the Lender shall approve the Buyer's assumption of the

                   Loan and the release of Seller and current Loan guarantors

                    from liability under the Loan. If Buyer so requests, the Loan

                   Assumption Period shall be extended by thirty (30) days.

 

 

            2.1.4. All reserves and escrows held by Lender as of the Close of

                   Escrow shall be credited to Seller at the Close of Escrow.

 

3.     Title to Property.

 

         3.1.      Title Insurance.

 

            Escrow Holder will obtain and deliver to Buyer an ALTA extended

            coverage policy of title insurance from Ticor Title Insurance

            Company with their standard provisions and exclusions, but with

            extended coverage over all general exceptions (the "Title Policy")

            in the amount of the Purchase Price. The Title Policy shall insure

             that Buyer owns good and marketable fee simple title to the Real

            Property subject only to the Permitted Exceptions (defined in

            Section 3.2 below).

 

         3.2.      Procedure for Approval of Title.

 

            During the Inspection Period (hereafter defined) Buyer shall review

            the Title Documents (hereinafter defined) and the Survey

            (hereinafter defined). If the Title Documents or Survey reflect or

            disclose any

 

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            defect, exception or other matter affecting the Property ("Title

            Defects") that is unacceptable to Buyer, then at least ten (10)

            business days prior to the expiration of the Inspection Period,

             Buyer shall provide Seller with written notice of Buyer's

            objections. Seller may, at its sole option, elect to cure or remove

            the objections made by Buyer. Should Seller elect to attempt to cure

            or remove the objections, it shall be a condition precedent to

            Buyer's obligation to acquire the Property that Seller cures or

            removes such title objections prior to the Close of Escrow. Unless

            Seller provides written notice to Buyer at least five (5) business

            days before the expiration of the Inspection Period that Seller

            intends to cure or remove Buyer's title objections, Seller shall be

            deemed to have elected not to cure or remove Buyer's title

             objections, and Buyer shall be entitled, as Buyer's sole and

            exclusive remedies, either to (i) terminate this Agreement and

            obtain a refund of the Deposit by providing written notice of

            termination to Seller before the end of the Inspection Period and

            returning the Due Diligence Items (hereinafter defined) or (ii)

            waive the objections and close this transaction as otherwise

            contemplated herein. If Buyer shall fail to terminate this Agreement

            during the Inspection Period, all matters shown on the Survey or

            described in the Title Report, except for monetary liens for

            indebtedness of the Seller and any matters the Seller has agreed to

            cure or remove in writing, shall be deemed "Permitted Exceptions."

 

4.     Due Diligence Items.

 

         4.1.      Seller shall deliver to Buyer each of the following within

                  seven days of the Opening of Escrow (collectively, the "Due

                   Diligence Items"):

 

            4.1.1. The existing survey of the Property, if any. In addition,

                   Seller shall deliver a current ALTA survey of the Property

                   certified in favor of Buyer (the "Survey") within twenty (20)

                   says after the Opening of Escrow;

 

            4.1.2. A current preliminary title report or title commitment (the

                   "Title Report") for the issuance of the Title Policy to Buyer

                   from the Escrow Holder, together with good and legible copies

                   of all documents constituting exceptions to the title as

                   reflected in the Title Report (collectively referred to

                   hereinafter as the "Title Documents");

 

            4.1.3. A list of all contracts, including but not limited to service

                   contracts, warranties, management, maintenance, leasing,

                   commission and other agreements affecting the Property, if

                   any,

 

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                    together with copies of the same shall be available for

                    inspection at the Real Property. Seller agrees not to enter

                    into any additional contracts or agreements prior to closing

                    which cannot be canceled upon thirty (30) days written

                    notice without cost, penalty, or obligation unless such

                    contracts or other agreements are approved in writing by

                    Buyer, which approval shall not be unreasonably withheld or

                    delayed;

 

            4.1.4.   All site plans, leasing plans, as built plans, drawings,

                    environmental, mechanical, electrical, structural, soils and

                    similar reports and/or audits and plans and specifications

                    relative to the Property in the possession of Seller, if

                    any, shall be made available for inspection at the Real

                     Property;

 

            4.1.5.   True and correct copies of the real estate and personal

                    property tax statements covering the Property or any part

                    thereof for each of the two (2) years prior to the current

                    year and, if available, for the current year;

 

            4.1.6.   A schedule of all current or pending litigation with respect

                    to the Property or any part, thereof, if any;

 

            4.1.7.   Operating statements for the most recent two calendar years

                    shall be available for inspection at the Real Property;

 

            4.1.8.   The tenant files (including but not limited to all Leases

                    and amendments thereto), books and records relating to the

                    ownership and operation of the Property shall be available

                    for inspection by Buyer during ordinary business hours at

                    the Real Property;

 

            4.1.9.   An inventory of all personal property located on the

                    Property, used in the maintenance of the Property or stored

                    for future use at the Property and an inventory of all

                    furniture and appliances used in the units, if any; and

 

            4.1.10. All documents evidencing the Loan.

 

      4.2.   Estoppel Certificates.

 

            As a condition precedent to Buyer's obligation to acquire the

            Property, Seller shall obtain and deliver to Buyer estoppel

             certificates from tenants who are leasing at least 90% of the total

            rentable square footage at the Real Property, in accordance with

            their respective Leases, dated no earlier than thirty (30) days

            prior to the Closing, and

 

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            in form and substance reasonably acceptable to Buyer. Buyer may

            elect to accept estoppel certificates from less than the aforesaid

            percentage of the tenants in satisfaction of this condition

            precedent, in Buyer's sole and absolute discretion. Estoppel

            certificates from all of the required tenants shall be deemed to

            satisfy this condition precedent unless they disclose material

             adverse matters. Buyer shall notify Seller no later than three (3)

            business days after receipt of a copy of each executed estoppel

            certificate of its approval or disapproval of the estoppel

            certificate and the basis of such disapproval, if disapproved. If

            Buyer disapproves of an estoppel certificate because of a material,

            adverse matter disclosed therein, and Seller is unable to obtain a

            reasonably acceptable estoppel certificate prior to the Close of

            Escrow, so that the aforesaid minimum percentage of estoppel

            certificates is not obtained, then at Buyer's election, this

            Agreement shall terminate, Buyer shall be entitled to a refund of

             the Deposit, and neither party shall have any further obligation to

            the other except Buyer's indemnification obligations under Paragraph

            5. At Closing, provided that Buyer has not terminated this Agreement

            as allowed herein, Seller shall deliver to Buyer an Estoppel

            Certificate executed by Seller for each tenant from whom an approved

            tenant estoppel certificate has not been obtained, in the same form

            as solicited from the tenant.

 

5.     Inspections.

 

      Buyer, at its sole expense, shall have the right to conduct feasibility,

      environmental, engineering and physical studies or other tests (the

      "Inspections") of the Property at any time during the Inspection Period

       (hereinafter defined). Buyer, and its duly authorized agents or

      representatives, shall be permitted to enter upon the Property at all

      reasonable times during the Inspection Period in order to conduct

      engineering studies, environmental examinations, soil tests and any other

      Inspections and/or tests that Buyer may deem necessary or advisable. Buyer

      must arrange all Inspections of the Property with Seller at least two (2)

      business days in advance of any Inspections. In the event that the review

      and/or Inspections conducted pursuant to this paragraph or any information

      obtained by Buyer concerning the Property or Buyer's intended us thereof,

      shows any fact, matter or condition to exist with respect to the Property

      or Buyer's intended use thereof that is unacceptable to Buyer, in Buyer's

      sole subjective discretion, then Buyer shall be entitled, as its sole and

      exclusive remedy, to (1) terminate this Agreement and obtain a refund of

      the Deposit, or (2) waive the objection, and close the transaction as

      otherwise contemplated herein. Buyer agrees to promptly discharge any

      liens that may be imposed against the Property as a result of the

      Inspections and to defend, indemnify and hold Seller harmless from all,

      claims, suits, losses, costs,

 

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      expenses (including without limitation court costs and attorneys' fees),

      liabilities, judgments and damages incurred by Seller as a result of any

      Inspections.

 

         5.1.      Approval.

 

            5.1.1. Buyer shall have forty-five (45) days after the Opening of

                   Escrow ("Inspection Period") to approve or disapprove the

                   Inspections and other information obtained by Buyer

                   concerning the Property and Buyer's intended use thereof. If

                   Buyer shall fail to notify Seller and Escrow Holder of its

                   disapproval in writing within the Inspection Period, the

                   condition of the Property shall be deemed approved. If Buyer

                   shall disapprove the Inspections or other information

                   obtained by Buyer concerning the Property and Buyer's

                    intended use thereof within the Inspection Period, this

                   Agreement and the Escrow shall thereupon be terminated, the

                   Deposit shall be refunded to Buyer, Buyer shall not be

                   entitled to purchase the Property, Seller shall not be

                   obligated to sell the Property to Buyer and the parties shall

                   be relieved of any further obligation to each other with

                   respect to the Property, except as provided in Paragraph 5.

 

            5.1.2. Notwithstanding anything to the contrary contained herein,

                   Buyer hereby agrees that, in the event this Agreement is

                   terminated for any reason, then Buyer shall promptly and at

                    its sole expense return to Seller all Due Diligence Items

                   which have been delivered by Seller to Buyer in connection

                   with the Inspections, along with copies of all reports,

                   drawings, plans, studies, summaries, surveys, maps and other

                   data prepared by third parties relating to the Property,

                   subject to restrictions on Buyer's ability to make any such

                   materials available to Seller that are imposed in any

                   agreement with a third party preparing any such reports or

                   materials ("Buyer's Reports"). Buyer shall cooperate with

                   Seller at no expense to Buyer in order to obtain a waiver of

                   any such limitations.

 

            5.1.3. Notwithstanding any contrary provision of this Agreement,

                   Buyer acknowledges that Seller is not representing or

                   warranting that any of the Due Diligence Items prepared by

                   third parties are accurate or complete, such as the Survey,

                   engineering reports and the like. Seller advises Buyer to

                   independently verify the facts and conclusions set forth

                    therein, provided however, Seller warrants that it has no

                   knowledge of

 

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                  any material errors or misstatements in such information

                  regarding the Property.

 

6.     Escrow.

 

         6.1.      Opening.

 

            Purchase and sale of the Property shall be consummated through an

            escrow ("Escrow") to be opened with Escrow Holder within two (2)

            business days after the execution of this Agreement by Seller and

            Buyer. Escrow shall be deemed to be opened as of the date fully

            executed copies (or counterparts) of this Agreement are delivered to

            Escrow Holder by Buyer and Seller ("Opening of Escrow"). This

            Agreement shall be considered as the Escrow instructions between the

            parties, with such further instructions, as Escrow Holder shall

            require in order clarify its duties and responsibilities. If

            Escrow Holder shall require further Escrow instructions, Escrow

            Holder may prepare such instructions on its usual form. Such further

            instructions shall be promptly signed by Buyer and Seller and

            returned to Escrow Holder within three (3) business days of receipt

            thereof. In the event of any conflict between the terms and

            conditions of this Agreement and such further instructions, the

            terms and conditions of this Agreement shall control.

 

          6.2.      Close of Escrow.

 

            6.2.1. Escrow shall close ("Close of Escrow") on or before

                   forty-five (45) days after the expiration of the Inspection

                   Period.

 

         6.3.      Buyer Required to Deliver.

 

             Buyer shall deliver to Escrow the following:

 

            6.3.1. The Deposit as provided in Paragraph 2 above;

 

            6.3.2. On or before Close of Escrow, the payment required by

                   Paragraph 2.1.3; provided, however that Buyer shall not be

                   required to deposit the amount specified in Paragraph 2.1.3

                   until Buyer has been notified by Escrow Holder that (i)

                   Seller has delivered to Escrow each of the documents and

                    instruments to be delivered by Seller in connection with

                   Buyer's purchase of the Property, (ii) Title Company has

                   committed to issue and deliver the Title Policy to Buyer and

                   Seller and (iii) the only impediment to Close of Escrow is

                   delivery of such amount by or on behalf of Buyer;

 

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            6.3.3. On or before Close of Escrow, such other documents as Title

                    Company may reasonably require from Buyer in order to issue

                   the Title Policy;

 

            6.3.4. An original assignment and assumption agreement (the

                   "Assignment and Assumption Agreement") duly executed by

                    Seller assigning and conveying to Buyer all of Seller's

                   right, title and interest in and to the Leases and the

                   Contracts; and

 

            6.3.5. Documents necessary for the Buyer's Assumption of the Loan.

 

         6.4.      Seller Required to Deliver.

 

            On or before Close of Escrow, Seller shall deliver to Escrow the

            following:

 

            6.4.1. A duly executed and acknowledged Special Warranty Deed,

                   conveying fee title to the Property in favor of Buyer (the

                   "Deed");

 

            6.4.2. An executed Certificate of Non-Foreign Status;

 

            6.4.3. A bill of sale of the Personal Property, if any, without

                   warranty, in favor of Buyer and duly executed by Seller;

 

            6.4.4. Such other documents as Title Company may reasonably require

                   from Seller in order to issue the Title Policy;

 

            6.4.5. Seller shall deliver to Buyer all keys to all buildings and

                   other improvements located on the Property, combinations to

                   any safes thereon, and security devices therein in Seller's

                   possession;

 

            6.4.6. Seller shall deliver all records and files relating to the

                   management or operation of the Property, including, without

                   limitation, all insurance policies, all security contracts,

                   all tenant files (including correspondence), property tax

                   bills, and all calculations used to prepare statements of

                   rental increases under the Leases and statements of common

                   area charges, insurance, property taxes and other charges

                   which are paid by tenants of the Project;

 

            6.4.7. A counterpart original of the Assignment and Assumption

                   Agreement; and

 

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            6.4.8. Documents necessary for the Buyer's assumption of the Loan.

 

         6.5.      Buyer's Costs.

 

            Buyer shall pay the following:

 

            6.5.1. One-half (1/2) of Escrow Holder's fees, costs and expenses.

 

            6.5.2. One-half of all state and local transfer taxes;

 

             6.5.3. All other costs customarily borne by purchasers of real

                  property in Las Vegas, Nevada;

 

            6.5.4. The premium for the "extended coverage" aspect of the Title

                   Policy and any additional endorsements which Buyer may elect

                   to obtain;

 

            6.5.5. All costs charged by the Lender and the title company in

                   connection with Buyer's assumption of the Loan;

 

            6.5.6. All other costs customarily borne by purchasers of real

                   property in Las Vegas, Nevada

 

         6.6.      Seller's Costs.

 

            Seller shall pay the following:

 

            6.6.1. One-half (1/2) of Escrow Holder's fees, costs and expenses;

 

            6.6.2. Title Company's premium for the standard coverage aspect of

                   the Title Policy;

 

            6.6.3. One-half of all state and local transfer taxes;

 

            6.6.4. All other costs customarily borne by sellers of real property

                   in Las Vegas, Nevada.

 

         6.7.      Prorations.

 

            6.7.1. Real property taxes, assessments, rents, security deposits

                   expenses and other prorateable items shall be prorated

                   through Escrow between Buyer and Seller as of Close of

                   Escrow. Rents, security deposits and expenses shall be

                   approved by Buyer prior to Close of Escrow. Any delinquent

                   rents collected by Buyer

 

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                   shall be paid to Seller. Seller shall have the right to

                   pursue any Tenant for delinquent rent, but shall not cause a

                   Tenant to be delinquent for their current rent or become

                    financially unstable. Tax and assessment prorations shall be

                   based on the latest available tax bill. If, after Close of

                   Escrow, Buyer receives any further or supplemental tax bill

                   relating to any period prior to Close of Escrow, or Seller

                   receives any further or supplemental tax bill relating to any

                   period after Close of Escrow, the recipient shall promptly

                   deliver a copy of such tax bill to the other party, and not

                   later than ten (10) days prior to the delinquency date shown

                   on such tax bill Buyer and Seller shall deliver to the taxing

                   authority their respective shares of such tax bill, prorated

                   as of Close of Escrow. Any reserves mai