EXECUTION COPY
PURCHASE AND SALE AGREEMENT
BY
AND
BETWEEN
BRE/COLONIE CENTER L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
"SELLER"
AND
XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP
A DELAWARE LIMITED PARTNERSHIP
"PURCHASER"
DATED AS OF
SEPTEMBER 29, 2004
PROPERTY: COLONIE CENTER
ALBANY COUNTY, NEW YORK
TABLE OF CONTENTS
1. PURCHASE AND SALE..................................................1
2. PURCHASE PRICE.....................................................2
3. EVIDENCE OF TITLE..................................................6
4. CLOSING............................................................9
5. OPERATION OF PROPERTY PRIOR TO CLOSING............................17
6. REPRESENTATIONS AND WARRANTIES....................................18
7. CASUALTY LOSS AND CONDEMNATION....................................21
8. BROKERAGE.........................................................22
9. DEFAULT AND REMEDIES..............................................22
10. CONDITIONS PRECEDENT..............................................24
11. PROPERTY INFORMATION AND CONFIDENTIALITY..........................28
12. MISCELLANEOUS.....................................................30
EXHIBITS
EXHIBIT A - Legal Description of Land
EXHIBIT B-1 - Tangible Personal Property
EXHIBIT B-2 - Excluded Tangible Personal Property
EXHIBIT C - Service Contracts
EXHIBIT D-1 - Illustration of Possible Economic Terms of Earn-Out Leases
EXHIBIT D-2 - Illustration of Layout for Big Box Earn-Out Tenant
EXHIBIT D-3 - Proposed Sight Lines for Big Box Earn-Out Tenant
EXHIBIT D-4 - Proposed Radio Shack Terms
EXHIBIT E-1 - Xxxxxxx Money Escrow Agreement
EXHIBIT F - Additional Permitted Exceptions
EXHIBIT G - Deed
EXHIBIT H - Xxxx of Sale
EXHIBIT I-1 - Notice Letter To Tenants
EXHIBIT I-2 - Notice Letter To Anchors
EXHIBIT J - Assignment and Assumption of Leases
-i-
EXHIBIT K - Assignment and Assumption of Service Contracts and
Intangible Personal Property
EXHIBIT L - Non-Foreign Certification
EXHIBIT M-1 - Lease Schedule
EXHIBIT M-2 - Rent Roll
EXHIBIT N - Tenant Inducement and Leasing Commissions
(Responsibility of Seller)
EXHIBIT O - Security Deposits
EXHIBIT P-1 - Form Tenant Estoppel Certificate
EXHIBIT P-2 - Form of Sears Estoppel Certificate
EXHIBIT P-3 - Form of Macy's Estoppel Certificate
EXHIBIT Q - Form of Seller Tenant Estoppel Certificate
EXHIBIT R - Assignment and Assumption of REA
EXHIBIT S - Disclosure Schedule
EXHIBIT T - Illustration of Proration of Real Estate Taxes
EXHIBIT U Approved Arbitrators
-ii-
PURCHASE AND SALE AGREEMENT
COLONIE CENTER, ALBANY, NEW YORK
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made as
of the 29th day of September, 2004 by and between BRE/COLONIE CENTER L.L.C., a
Delaware limited liability company ("SELLER"), with an office at c/o Blackstone
Real Estate Advisors, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXXX
EQUITIES OPERATING PARTNERSHIP, LP, a Delaware limited partnership
("PURCHASER"), with an office at c/o Feldman Equities Inc., 0000 X. Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
RECITALS:
A. Seller is the owner of certain real estate in the City of
Albany, County of Albany, State of New York, which parcel is more particularly
described on EXHIBIT A attached hereto (the "LAND") upon which is located a
retail shopping center owned by Seller, which, together with parcels owned by
Sears Xxxxxxx & Company ("SEARS") and Macy's East, Inc. ("MACY'S"), is commonly
known and operated as Colonie Center, Albany, New York (the "MALL").
B. Seller desires to sell, and Purchaser desires to purchase, the
"PROPERTY" (hereinafter defined), each in accordance with and subject to the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the above Recitals, the mutual
covenants and agreements herein set forth and the benefits to be derived
therefrom, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller agree as
follows:
1. PURCHASE AND SALE
Subject to and in accordance with the terms and conditions set
forth in this Agreement, Seller agrees to sell, assign, and convey to Purchaser,
and Purchaser agrees to purchase from Seller all of Seller's right, title and
interest in: (i) the Land; (ii) all buildings, fixtures and other improvements
owned by Seller and located on, in, or under the Land ("IMPROVEMENTS"), (the
Land and the Improvements are collectively referred to as the "REAL PROPERTY");
(iii) all rights, appurtenances, easements and privileges, if any, presently on
or appertaining to the Land or Improvements, including, without limitation, in
and to any adjacent strips and gores between the Land and abutting properties,
and any land lying in any road, street, alley or right-of-way abutting or
adjacent to the Land; (iv) all of Seller's right, title and interest in and to
all leases and agreements, written or oral, for the use, possession or occupancy
of any portion of the Real Property as of the date hereof and such other leases
and other agreements entered into in accordance with this Agreement, and all
amendments thereto (the "LEASES") and all unapplied security deposits held by
Seller under the Leases; (v) all of Seller's right, title and interest in and to
all equipment, machinery, building materials, furniture, furnishings, supplies
and other tangible personal property owned by Seller and located on or attached
to and used in the operation, management and maintenance of the Real Property,
including without limitation the items identified on EXHIBIT B-1 attached hereto
(subject to ordinary depletion) (the "TANGIBLE PERSONAL PROPERTY"); (vi) all of
Seller's right, title and interest, in and to the agreements and equipment
leases (to the extent assignable) set forth on EXHIBIT C attached hereto and
other agreements entered into in accordance with this Agreement, and all
amendments thereto (the "SERVICE CONTRACTS"); and (vii) all of Seller's right,
title and interest in and to that certain Amended and Restated Construction,
Operation and Reciprocal Easement by and among Colonies Properties, Inc., Macy's
Northeast, Inc., Sears Xxxxxxx and Co. and The Equitable Life Assurance Society
of the United States dated as of October 3, 1990, and recorded Liber 2444 page
187, as amended by First Amendment dated as of January 8, 1999 and recorded on
August 8, 2002 in Liber 2716, Page 894 (collectively as so amended and
supplemented, the "REA"); (viii) all of Seller's right, title and interest in
and to (A) to the extent assignable, the right to use the name "Colonie Center";
(B) to the extent assignable, all plans and specifications, guaranties and
warranties with respect to the Real Property in Seller's or Seller's managing
agent's possession; and (C) to the extent assignable and obtained, all
certificates of occupancy and other permits, licenses and certificates held by
Seller with respect to the Real Property (collectively, "PERMITS AND LICENSES",
and, together with clauses (A) and (B) above, the "INTANGIBLE PERSONAL
PROPERTY"). The foregoing are collectively referred to in this Agreement as the
"PROPERTY". The Property expressly excludes (i) all property owned by (a) the
tenants or other users or occupants of the Property (each, a "TENANT" and
collectively, "TENANTS"), including, without limitation, the "ANCHORS" (herein
defined), (b) Urban Retail Properties Co., the managing agent of the Property
("MANAGING Agent"), and (c) third party providers pursuant to Service Contracts;
(ii) the equipment, machinery, building materials, furniture, furnishings,
supplies and other tangible personal property identified on EXHIBIT B-2 attached
hereto ("EXCLUDED TANGIBLE PERSONAL PROPERTY"); and (iii) any refund of taxes
applicable to the period prior to the Closing Date (as herein defined) in
accordance with Section 4.C (iii) hereof.
2. PURCHASE PRICE
A. PURCHASE PRICE. The base purchase price to be paid by
Purchaser to Seller for the Property at Closing is Eighty Four Million Two
Hundred Thousand and No/100 Dollars ($84,200,000.00) (the "Purchase Price"). The
Purchase Price is subject to increase as provided in Section 2.B hereof.
B. EARN OUT PAYMENT. In addition to the Purchase Price paid to
Seller pursuant to Section 2.A hereof, Purchaser shall pay to Seller each of the
Earn-Out Payments (as herein defined) on or before the respective Earn-Out
Payment Date (as herein defined) for the applicable Earn-Out Lease (as herein
defined). The Earn-Out Payments shall consist of the Big Box Earn-Out Payment
(as herein defined) and a Small Store Earn-Out Payment (as herein defined) for
each of the Small Store Earn-Out Tenants (as herein defined) and shall be
treated by the parties hereto as additional Purchase Price if earned in
accordance with this Section 2.B.
The "BIG BOX EARN-OUT PAYMENT" shall be an amount equal to the
quotient obtained by dividing the Big Box Gross Rent (as herein defined) by
0.08. The "BIG BOX GROSS RENT" shall be the amount of the annual gross rent
payable by the Big Box Earn-Out Tenant (as herein defined) for the first full
twelve (12) month period under the Big Box Earn-Out Lease after expiration of
any free rent period; provided that if the Big Box Earn-Out Tenant is Home Goods
and the amount of the annual gross rent exceeds $18.50 per rentable square foot,
the annual gross rent amount used to calculate the Big Box Gross Rent shall be
limited to $18.50 per rentable square foot of the leased premises under the Big
Box Earn-Out Lease, and if the Big Box Earn-Out Tenant is any tenant other than
Home Goods and the amount of the annual gross rent is in excess of $19.25 per
rentable square foot, the annual gross rent amount used to calculate the Big Box
Gross Rent shall be limited to $19.25 per rentable square foot of the leased
premises under the Big Box Earn-Out Lease. A "SMALL STORE EARN-OUT PAYMENT"
shall be an amount equal to the quotient obtained by dividing (i) the sum of the
annual base rent payable by a Small Store Earn-Out Tenant for the first full
twelve (12) month period under the Small Store Earn-Out Lease (as herein
defined) (after expiration of any free rent period) plus the specified amounts
listed on EXHIBIT D-1 relating to such Small Store Earn-Out Tenant for taxes,
common area maintenance, insurance, water, trash, sewer and other operating
expenses, by (ii) 0.08. A Small Store Earn-Out Payment shall be made by
Purchaser to Seller with respect to each Small Store Tenant Lease. The Big Box
Earn-Out Payment and Small Store Earn-Out Payments are individually referred to
herein as an "EARN-OUT PAYMENT" and collectively as "EARN-OUT PAYMENTS".
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Seller shall have the exclusive right through April 30, 2005,
as said date may be extended with respect to a particular Earn-Out Tenant as
provided below ("EXCLUSIVITY PERIOD"), to lease the following spaces within the
Mall:
(1) between 20,000 and 30,000 rentable square feet to (i) Home
Goods, (ii) Xxxxxx and Xxxxx or (ii) another single tenant with either
a national presence or a substantial regional presence in the northeast
section of the United States having a minimum tangible net worth of not
less than Twenty Five Million and 00/100 Dollars ($25,000,000.00) and a
use that would be compatible with the overall tenant mix of the Mall
(any one of the tenants referred to in (i), (ii) or (iii) above being
herein referred to as "BIG BOX EARN-OUT TENANT") in the location
approximately as shown on EXHIBIT D-2 attached hereto and made a part
hereof (with any reduction in size from the rentable square feet shown
on EXHIBIT D-2 to be accomplished by moving the boundary line farthest
from the Sears leased premises closer to the Sears leased premises),
and
(2) the specified suites with approximately the square footage
designated under Component B on EXHIBIT D-1 attached hereto and made a
part hereof to each of the respective designated tenants listed under
Component B (each a "SMALL STORE EARN-OUT TENANT" and collectively, the
"SMALL STORE EARN-OUT TENANTS").
The Big Box Earn-Out Tenant and the Small Store Earn-Out Tenants are
individually sometimes referred to as an "EARN-OUT TENANT" and collectively
referred to as "EARN-OUT TENANTS".
The lease with the Big Box Earn-Out Tenant shall use the
tenant's lease form and be upon terms and conditions that a commercially
reasonable landlord would agree upon when negotiating with the same or a
comparable national or regional tenant of comparable bargaining strength
regarding the proposed premises or premises similar to the proposed premises and
shall be consistent with the following lease terms and conditions: The Big Box
Earn-Out Lease (1) shall provide for (a) a minimum annual gross rent of not less
than eighty percent (80%) per rentable square foot of the Annual Gross Rent
shown under Component A on EXHIBIT D-1, (b) an increase in annual gross rent of
not less than fifty cents ($.50) per rentable square foot every five (5) years,
(c) a minimum term of not less than ten (10) years, (d) the Big Box Earn-Out
Tenant to open for business for at least one day (but shall not require an
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operating covenant) within a reasonable period following delivery of possession
of the leased premises to the Big Box Earn-Out Tenant, (e) the leased premises
to have a configuration that does not leave more than one thousand (1,000)
rentable square feet of unusable or unleasable space and does not leave any area
shown on EXHIBIT D-2 that is not leased by the Big Box Earn-Out Tenant with less
than fifteen (15) linear feet of frontage; (f) there is a prominent entrance
into the Mall along the interior main Mall corridor; (g) the exclusive use
granted shall be subject to the rights of all tenants in the Mall existing on
the date of the Big Box Earn-Out Lease (or a permitted subtenant or assignee of
an existing tenant) to use its premises for a use which competes with the Big
Box Earn-Out Tenant's exclusive use and (2) shall not contain any provision that
would (a) violate or allow the Big Box Earn-Out Tenant to violate in any
material respect any provision of any other then-existing Lease in the Mall, (b)
give the Big Box Earn-Out Tenant (i) an early termination option (without cause)
in the first five (5) years of the term, provided that an early termination
option (without cause) in the second five (5) years of the term shall be
permissible so long as it provides for payment by the Big Box Earn-Out Tenant of
the unamortized Tenant Inducement Costs and leasing commissions, or (ii) a right
to terminate the lease based upon sales levels, (c) prohibit any uses in the
Mall, other than the Big Box Earn-Out Tenant's customary exclusive use, not
customarily prohibited by department store or anchor tenants in shopping centers
similar to the Mall, (d) allow the Big Box Earn-Out Tenant to have a general
approval right over all alterations or expansions of the Mall, provided that the
Big Box Earn-Out Tenant may have such rights over a protected area typical for
an anchor tenant, including, without limitation, protection of its parking,
pylon signage, ingress and egress, and access points to major roadways and,
sight lines as shown on EXHIBIT D-3 attached hereto, or (e) require the landlord
to provide electricity or HVAC to the leased premises without reimbursement of
cost; and (3) may provide co-tenancy rights as are customarily provided to a
tenant of this size and use, including the right to terminate the lease, in the
event that a minimum of three (3) Anchors and at least seventy-five percent of
the other tenants are not open for business in the Mall (collectively "BIG BOX
LEASE CRITERIA").
The leases with the Small Store Earn-Out Tenants shall require
(1) an aggregate payment of annual minimum or base rent for all the Small Store
Earn-Out Tenants of not less than eighty percent (80%) of the amount shown under
Component B on EXHIBIT D-1 for Annual Rent, payment of percentage rent,
contributions to the marketing fund and the payment of reimbursements for the
reimbursable items shown under Component B on EXHIBIT D-1 (but not the exact
dollars shown), (2) an increase in annual minimum or base rent of not less than
ten percent (10%) no later than the sixth (6th) lease year, (3) a minimum of a
five (5) year term, except for a kiosk (i.e. Island Ink Jet) which shall have a
minimum term of three (3) years, (4) the tenant to open for business for at
least one (1) day within a reasonable period after delivery of possession of the
leased premises to the Small Store Earn-Out Tenant and the expiration of any
free rent period, and (5)(i) shall use Seller's standard lease form for the
leases with Xxxxxxxx Xxxx and Xxxxx Xxxxx with such reasonable modifications
thereto negotiated by the respective Small Store Earn-Out Tenant so long as such
modifications do not materially change any of the material terms or conditions
provided for in Seller's form lease, provided the lease with Xxxxx Xxxxx shall
also contain the same modifications as are in its existing Lease, (ii) shall use
Seller's standard kiosk lease form for the lease with Island Ink Jet with such
reasonable modifications thereto negotiated by such Small Store Earn-Out Tenant
so long as such modifications do not materially change any of the material terms
or conditions provided for in Seller's form lease, and (iii) shall use the
tenant's lease form for the lease with Bonefish and be upon terms and conditions
that a commercially reasonable landlord would agree upon when negotiating with
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the same or a comparable national or regional tenant of comparable bargaining
strength regarding the proposed premises or premises similar to the proposed
premises and shall be consistent with the following lease terms and conditions:
The Earn-Out Lease with Bonefish (1) shall require the tenant to open for
business for at least one day (but shall not require an operating covenant)
within a reasonable time after expiration of any free rent period, (2) shall not
contain any provision that would (a) violate or allow the tenant to violate in
any material respect any provision of any other then-existing Lease in the Mall,
(b) give the tenant (i) an early termination option (without cause) in the first
five (5) years of the term, provided that an early termination option (without
cause) in the second five (5) years of the term will be permissible so long as
it provides for payment by the tenant of the unamortized Tenant Inducement Costs
and leasing commissions, or (ii) a right to terminate the lease based upon sales
levels, (c) prohibit any uses in the Mall, other than the tenant's customary
exclusive use, not customarily prohibited by tenants of this size and use in
shopping centers similar to the Mall, (d) allow the tenant to have a general
approval right over all alterations or expansions of the Mall, provided that the
tenant may have such rights over a protected area typical for a tenant of this
size and use, including, without limitation, protection of reasonable sight
lines and proximate parking, and (e) the exclusive use granted shall be subject
to the rights of all tenants in the Mall existing on the date of the Small Store
Earn-Out Lease (or a permitted subtenant or assignee of an existing tenant) to
use its premises for a use which competes with Bonefish's exclusive use, (3) may
provide co-tenancy rights as are customarily provided to a tenant of this size
and use, including the right to terminate the lease, in the event that a minimum
of three (3) Anchors and at least seventy-five percent of the other tenants are
not open for business in the Mall (collectively "SMALL STORE LEASE CRITERIA").
If, on or before April 30, 2005, or June 30, 2005 if extended
as provided below ("EXCLUSIVITY PERIOD"), Seller delivers to Purchaser any one
or more of the following:
(a) a lease executed by the Big Box Earn-Out Tenant which is
consistent with the Big Box Lease Criteria in all material
respects or is otherwise approved by Purchaser, which approval
shall not be unreasonably withheld, conditioned or delayed
("BIG BOX EARN-OUT LEASE"), and
(b) one or more leases executed by Small Store Earn-Out
Tenants, each of which is consistent with the Small Store
Lease Criteria for such Small Store Earn-Out Tenant in all
material respects or otherwise approved by Purchaser, which
approval shall not be unreasonably withheld, conditioned or
delayed (individually, "SMALL STORE EARN-OUT LEASE" and
collectively "SMALL STORE EARN-OUT LEASES"),
Purchaser shall pay to Seller the Earn-Out Payment relating to each Earn-Out
Tenant for whom a lease executed by the Earn-Out Tenant was delivered, without
deduction or offset, by wire transfer of immediately available funds as directed
by Seller, within ten (10) days after (a) such Earn-Out Tenant commences paying
rent and opens for business to the public for at least one day in its leased
premises, if Purchaser executes such Earn-Out Lease, or (b) the date that such
Earn-Out Tenant would have commenced paying rent under such proposed Earn-Out
Lease assuming such Earn-Out Lease was signed by Purchaser and all improvements
to the leased premises to be performed or paid for by landlord had been
completed, if Purchaser declines to execute such Earn-Out Lease ("EARN-OUT
PAYMENT DATE"), provided, however, that if Purchaser elects not to execute an
Earn-Out Lease presented by Seller, the amount of the Earn-Out Payment due to
Seller with respect to such Earn-Out Lease shall be reduced by the amount of any
Tenant Inducement Costs that Seller is relieved of paying. The Big Box Earn-Out
Lease and the Small Store Earn-Out Leases are individually referred to as an
"EARN-OUT LEASE" and collectively as "EARN-OUT LEASES".
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If an Earn-Out Lease is not delivered to Purchaser by April
30, 2005, but Seller has advised Purchaser, in writing, that active negotiations
on the form of lease are pending with an Earn-Out Tenant (meaning at a minimum
that one party has proposed a form of lease and the other party has provided at
least one set of proposed revisions to such form) and has provided to Purchaser
a copy of the most recent draft of the proposed lease, the date for delivery of
such Earn-Out Lease to Purchaser shall be extended to June 30, 2005. Purchaser
shall either execute and deliver the tenant executed Earn-Out Lease to the
Earn-Out Tenant with a copy to Seller or give notice to Seller of Purchaser's
intent not to execute within five (5) business days after receipt of the tenant
executed Earn-Out Lease. If Purchaser fails to either execute and deliver such
Earn-Out Lease or give Seller notice of its intent not to execute such Earn-Out
Lease within such five (5) business day period, Purchaser shall be deemed to
have elected not to execute such Earn-Out Lease and Purchaser shall be obligated
to pay the Earn-Out Payment with respect to such Earn-Out Lease to Seller by the
Earn-Out Payment Date provided, however, that if Purchaser elects not to execute
an Earn-Out Lease presented by Seller, the amount of the Earn-Out Payment due to
Seller with respect to such Earn-Out Lease shall be reduced by the amount of any
Tenant Inducement Costs that Seller is relieved of paying. If Seller fails to
deliver an Earn-Out Lease to Purchaser on or before April 30, 2005 (or June 30,
2005, if applicable) for an Earn-Out Tenant, Seller shall have no further rights
to lease the applicable space in the Mall or to continue to negotiate for such
Earn-Out Lease with such Earn-Out Tenant and Seller shall have no further right
to the Earn-Out Payment with respect to such Earn-Out Tenant, but the failure to
deliver an Earn-Out Lease with respect to any Earn-Out Tenant shall not affect
Seller's rights and Purchaser's obligations with respect to any other Earn-Out
Tenant and the Earn-Out Payment relating thereto.
Seller shall advise Purchaser, on a weekly basis, of the
progress and state of negotiations of the Earn-Out Leases, and shall cause
copies of all correspondence and all drafts of the leases to be delivered to
Purchaser as negotiations of each of the Earn-Out Leases progress. Purchaser
shall be provided with the opportunity to comment on the status of negotiations
and the terms and conditions of the Earn-Out Leases as appropriate and
Purchaser's reasonable comments shall be considered in negotiating the Earn-Out
Leases. Purchaser shall respond to Seller within three (3) business days of
receipt of any draft of a proposed Earn-Out Lease or any specific terms as to
whether such draft or specific terms meet with Purchaser's approval or the
reasons they do not and specifying the modifications or changes that must be
made in order for the proposed Earn-Out Lease or specific lease terms to be
approved by Purchaser or otherwise meet the proposed Earn-Out Lease Criteria for
such Earn-Out Tenant. Purchaser shall not unreasonably withhold, delay or
condition its approval. Notwithstanding anything contained herein to the
contrary, in the event Purchaser fails to give its comments or approval, as the
case may be, within the three (3) business day period, such proposed Earn-Out
Lease or specific lease terms shall be deemed to approved by Purchaser; provided
however, Purchaser shall provide its comments on the Big Box Earn-Out Lease and
the Small Store Earn-Out Lease for Bonefish within the following time periods:
(a) within seven (7) business days from receipt of the initial form of the Big
Box Earn-Out Lease or the Small Store Earn-Out Lease for Bonefish; (b) within
five (5) business days after receipt of the second draft of the Big-Box Earn-Out
Lease or the Small Store Earn-Out Lease for Bonefish, whichever is applicable;
and (c) within three (3) business days for all drafts thereafter.
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If a signed Earn-Out Lease is delivered to Purchaser prior to
April 30, 2005 (or June 30, 2005, if applicable) and Purchaser executes and
delivers such Earn-Out Lease to the applicable Earn-Out Tenant, all Tenant
Inducement Costs and leasing commissions incurred in connection with such
Earn-Out Lease shall be paid by Seller, provided that the Earn-Out Payment with
respect to such Earn-Out Tenant is paid to Seller by Purchaser. If Seller fails
to deliver an Earn-Out Lease to Purchaser on or before April 30, 2005 (or June
30, 2005, if applicable), Purchaser shall not be required to reimburse Seller
for any Tenant Inducement Costs or any leasing commissions related thereto that
have been incurred by Seller unless Purchaser enters into a lease with such
Earn-Out Tenant prior to December 31, 2005. In such event, Purchaser shall,
promptly upon execution of the lease with such Earn-Out Tenant, reimburse to
Seller any such Tenant Inducement Costs and leasing commissions incurred by
Seller. Seller shall be solely responsible for paying any tenant relocation
costs required in order to move any existing tenant necessary to allow any
Earn-Out Lease. In no event shall Seller terminate any existing Lease in order
to allow any Earn-Out Lease except for any leases to accommodate the Big Box
Earn-Out Tenant.
The parties acknowledge that Radio Shack will need to be
relocated to accommodate the Big Box Earn-Out Tenant and that Seller shall have
the right to do so without Purchaser's consent if the economic terms of the
agreement with Radio and the relocation space are consistent with the terms set
forth on EXHIBIT D-4 attached hereto and otherwise consistent with Radio Shack's
existing lease. If Purchaser's consent is required, Purchaser shall not
unreasonably withhold, condition or delay its consent and, if Purchaser fails to
respond to a request for consent within five (5) business days after receipt of
such request, Purchaser shall be deemed to have consented to such request.
Seller agrees that, after the date hereof, it will not enter
into any letter of intent with or lease proposal with any Earn-Out Tenant that
is inconsistent in any material respect with the Big Box Lease Criteria or the
Small Store Lease Criteria, as the case may be, without Purchaser's prior
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
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If an Earn-Out Tenant for which an Earn-Out Lease has been
executed commences paying rent but does not open for business when anticipated,
Seller shall be entitled to all rent paid by such Earn-Out Tenant until Seller
has received the full amount of the Earn-Out Payment that would have been due
Seller had such Earn-Out Tenant opened for business to the public ("PROJECTED
EARN-OUT PAYMENT") and Purchaser shall pay to Seller all rent received from such
Earn-Out Tenant promptly as and when received. In such event, Seller shall
retain all right to commence a lawsuit to enforce the obligations of such
Earn-Out Tenant under its Earn-Out Lease, including the right to terminate such
Earn-Out Lease or such Earn-Out Tenant's right of possession of the leased
premises. Notwithstanding anything to the contrary in Section 4.C(i)(b), any
amounts received pursuant to such lawsuit or otherwise from such Earn-Out Tenant
shall be applied first to Seller's costs and expenses, including attorneys'
fees, in connection with the enforcement of such Earn-Out Lease and collection
of monies due thereunder, then to Seller in the amount of the Projected Earn-Out
Payment and finally, any balance to Purchaser. If such Earn-Out Tenant
thereafter opens for business to the public, Purchaser shall pay the Earn-Out
Payment to Seller, less any amounts theretofore received by Seller from such
Earn-Out Tenant, plus any costs and expenses incurred by Seller in enforcing the
obligations of the Earn-Out Tenant under the Earn-Out Lease to the extent
recoverable from the Earn-Out Tenant.
Any controversy, dispute or claim arising out of or in connection with,
or relating in any way to, the provisions of this Section 2.B (a "DISPUTE")
shall be determined by arbitration conducted in New York City by a single
arbitrator. The arbitration shall be conducted, to the extent consistent with
this Section, in accordance with the then-prevailing commercial arbitration
rules of the American Arbitration Association (or any successor organization
thereto). Any party hereunder may submit a Dispute to arbitration by giving
notice to such effect to the other party ("ARBITRATION NOTICE"). Within five (5)
business days after the Arbitration Notice is given, the party requesting
arbitration shall contact the persons listed as potential arbitrators in EXHIBIT
U to this Agreement ("ELIGIBLE PERSONS"), in the order set forth on that list,
beginning with the first name listed. Upon receiving confirmation from an
Eligible Person that he or she is ready, willing and able to serve as the
arbitrator, preside over the arbitration hearing and render an award, all within
fifteen (15) business days after being given notice of his or her appointment as
the arbitrator, the party requesting arbitration shall notify the other party of
the identity of that Eligible Person. Such notice shall constitute appointment
of that Eligible Person as the arbitrator. The arbitrator shall, after
consultation with the parties, schedule the arbitration hearing to occur at a
location agreed to by the parties (or, if no such agreement can be reached, at a
location in New York City selected by the arbitrator) no more than fifteen (15)
business days after the date of the arbitrator's appointment. No discovery will
be permitted in connection with the arbitration, except that at least five (5)
business days prior to the scheduled commencement of the arbitration hearing,
the parties shall exchange (and furnish to the arbitrator) lists of witnesses
that each party intends to call and all documents (except documents to be used
solely for impeachment or rebuttal) which each party intends to submit or refer
to at the arbitration hearing. The arbitrator shall render the award within
three (3) business days after the conclusion of the hearing, and shall promptly
cause a counterpart copy of the award to be delivered to each of the parties. In
rendering the award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this Agreement. The award shall be final, binding and
conclusive on the parties, and any party required to make a payment pursuant to
the award shall do so within five (5) business days after receiving a
counterpart copy of the award. Judgment shall be entered on the award by any
court of competent jurisdiction located in New York City, New York. The parties
shall split equally the fees, costs and expenses of the arbitrator. Each party
shall bear its own attorneys' fees, costs and expenses incurred in connection
with the arbitration. Notwithstanding anything in this Section 2.B to the
contrary, the Exclusivity Period shall be extended day for day pending the
resolution of any Dispute by arbitration as herein set forth provided that
Seller is the prevailing party in the arbitration.
8
Purchaser agrees that it will maintain a minimum tangible net worth of
not less than Eighteen Million Dollars ($18,000,000) ('MINIMUM NET WORTH") from
and after Closing through December 31, 2005, provided that if any Dispute is
pending between the parties, Purchaser will continue to maintain the Minimum Net
Worth until such dispute is resolved. If Purchaser's tangible net worth
immediately following Closing or at any time during which Purchaser is required
to maintain the Minimum Net Worth is less than the Minimum Net Worth, Purchaser
shall immediately furnish to Seller, at Purchaser's option either cash or an
irrevocable unconditional standby letter of credit to Seller or Seller's
designee as beneficiary in the amount of the aggregate of all possible Earn-Out
Payments assuming the annual gross rent for each Earn-Out Tenant is the amount
specified for such tenant on EXHIBIT D-1. The letter of credit shall be (i)
issued by an institution reasonably acceptable to Seller, (ii) be in a form
acceptable to Seller, (iii) be for a term of at least one year, (iv) provide
that it automatically shall be renewed for successive six (6) month periods
unless written notice is given to Seller not later than thirty (30) days prior
to the expiration date of the letter of credit by the issuer of the letter of
credit that it does not intend to extend or renew the letter of credit as
aforesaid, (v) provide that it may be drawn upon by presentation by Seller a
written certificate stating that Seller is entitled to the funds it seeks to
draw under the letter of credit pursuant to the terms of this Agreement, or (B)
that the letter of credit has not been renewed or extended thirty (30) days
prior to any expiration date and that as a result thereof Seller is required to
draw on the letter of credit and (vi) shall provide for the transferability of
the letter of credit.
The provisions of this Section 2.B shall survive Closing through June
30, 2006.
X. XXXXXXX MONEY. Purchaser shall, within one (1) business day from the
date of this Agreement, deliver to "ESCROW AGENT" (hereinafter defined) pursuant
to the escrow agreement attached hereto as EXHIBIT E-1 (the "ESCROW AGREEMENT"),
a wire transfer in the amount of One Million and No/100 Dollars ($1,000,000), as
the initial xxxxxxx money deposit hereunder (the "INITIAL DEPOSIT"). The Initial
Deposit shall become nonrefundable (except as otherwise expressly provided in
this Agreement) upon the expiration of the Review Period if this Agreement is
not terminated by Purchaser at such time in accordance with Section 10.B hereof.
If this Agreement is terminated by Purchaser prior to the expiration of the
Review Period, Purchaser shall pay to Seller simultaneously with Purchaser's
notice to Seller of such termination, the sum of Fifty Thousand Dollars
($50,000) ("EXCLUSIVITY PAYMENT"). If the Exclusivity Payment is not made by
Purchaser as herein provided, Seller shall have the right to direct Escrow Agent
to draw upon the Initial Deposit in the amount of the Exclusivity Payment and to
deliver proceeds of such draw to Seller prior to return of the balance of the
Initial Deposit to Purchaser. If requested, Purchaser shall join in such
direction to Escrow Agent. If this Agreement is not terminated by Purchaser
prior to the end of the "REVIEW PERIOD" (hereinafter defined), the Initial
Deposit shall be increased to Two Million and No/100 Dollars ($2,000,000) by
deposit of an additional wire transfer of funds or a letter of credit (the
"INCREASED DEPOSIT") no later than two (2) business days after the expiration of
the Review Period. The Initial Deposit together with the Increased Deposit, the
First Extension Deposit (as herein defined) and the Second Extension Deposit,
and any accrued interest earned thereon if in cash or converted to cash
proceeds, shall constitute the xxxxxxx money under this Agreement (the "XXXXXXX
MONEY"). The Xxxxxxx Money shall be held by the Escrow Agent, in trust for the
benefit of Purchaser and Seller, pursuant to the terms of the Escrow Agreement.
The Escrow Agreement shall be executed and delivered by Purchaser and Seller (or
their attorneys) concurrently with the execution and delivery of this Agreement.
Any letter of credit constituting the Xxxxxxx Money, or portion thereof, shall
be (i) issued by an institution reasonably acceptable to Seller, (ii) in the
form reasonably acceptable to Seller, (iii) be for a term of at least six (6)
months, (iv) provide that it automatically shall be renewed for successive six
9
(6) month periods unless written notice is given to Seller and Escrow Agent not
later than thirty (30) days prior to the expiration date of the letter of credit
by the issuer of the letter of credit that it does not intend to extend or renew
the letter of credit as aforesaid, (v) provide that it may be drawn upon by
presentation by Escrow Agent of a written certificate, executed and sworn to by
a purported and duly authorized and empowered representative of Escrow Agent
stating (A) that Escrow Agent has received a written statement alleging that
Seller or Purchaser, as the case may be, is entitled to the Xxxxxxx Money
pursuant to the terms of this Agreement, or (B) that the letter of credit has
not been renewed or extended thirty (30) days prior to any expiration date and
that as a result thereof Escrow Agent is required to draw on the letter of
credit and (vi) shall provide for the transferability of the letter of credit.
If the transaction closes in accordance with the terms of this Agreement, at
"CLOSING" (hereinafter defined), the Xxxxxxx Money (letter or letters of credit)
shall be delivered by Escrow Agent to Purchaser, or if previously converted to
cash proceeds it shall be paid to Seller and applied on account of the Purchase
Price. If the transaction fails to close due to a default on the part of
Purchaser, the Escrow Agent shall draw on the letter of credit(s) and the
Xxxxxxx Money shall be delivered by Escrow Agent to Seller as liquidated damages
in accordance with Section 9.B hereof. If the transaction fails to close due to
a default on the part of Seller, the Xxxxxxx Money (letters of credit or cash
proceeds, as applicable) shall be delivered by Escrow Agent to Purchaser in
accordance with the provisions of Section 9.A hereof.
D. CASH AT CLOSING. At Closing, Purchaser shall pay to Seller
or its designee, by wire transfer of immediately available federal funds, an
amount (the "CASH PAYMENT") equal to the Purchase Price net of the Xxxxxxx
Money, and plus or minus, as the case may require, the closing prorations,
adjustments and credits to be made pursuant to Section 4.C hereof.
3. EVIDENCE OF TITLE
A. TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE. Seller
has caused to be delivered or will cause to be delivered to Purchaser within
five (5) days after the date hereof a title insurance commitment (the "TITLE
COMMITMENT") to issue at Closing an ALTA 1992 Owner's title insurance policy in
the amount of the Purchase Price insuring Purchaser as fee simple owner of the
Land and with affirmative insurance over all appurtenant easements that benefit
the Real Property ("TITLE POLICY"), issued by First American Title Insurance
Company (the "TITLE COMPANY" or, in its capacity as escrow agent, "ESCROW
AGENT"), together with copies of all instruments referenced in Schedule B
thereof (to the extent available).
B. SURVEY. Seller has caused to be delivered to Purchaser the
most recent survey of the Real Property prepared by Xxxxxxx Associates LLP for
Landata Site Services, Inc. dated May 28, 2002, as revised August 13, 2002 (the
"EXISTING SURVEY") and will cause the Surveyor to deliver to Purchaser an update
of the Existing Survey certified to Purchaser, its lender, if any, and the Title
Company (the "NEW SURVEY") no later than September 28, 2004. If the New Survey
and the legal descriptions prepared therefrom are not identical to the legal
description on EXHIBIT A hereto, the "Deed" (hereinafter defined) shall describe
the Land in accordance with the New Survey so long as the New Survey is
certified to Purchaser, its lender, and the Title Company. The Purchase Price
has been fixed without regard to the area of the Real Property and is not to be
abated or changed should the New Survey describe an area different from the area
of the Property described on EXHIBIT A. Nothing contained in this Agreement,
including the legal description set forth on EXHIBIT A hereto, shall constitute
any warranty, representation or agreement by Seller as to the location of
separate lots in, or acreage of, the Property.
10
C. TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS. Purchaser and
Seller agree that the following are to be the only exceptions to title (the
"PERMITTED EXCEPTIONS"): (1) the Leases identified on EXHIBIT M-1 hereto and any
Leases entered into after the date hereof but prior to Closing in compliance
with the terms of this Agreement, (2) all non-delinquent real estate taxes and
assessments and non-delinquent personal property taxes and all real estate taxes
and assessments and personal property taxes which are the obligations of, or
paid directly by, Tenants under Leases in effect on the Closing Date or by
Anchors (as herein defined) to the entity imposing same, (3) the rights of the
Tenants under the Leases, including any Leases entered into after the date
hereof but prior to Closing in accordance with the terms of this Agreement as
tenants only with no rights or options to purchase the Property or any portion
thereof, (4) all matters created by or on behalf of Purchaser, including,
without limitation, any documents or instruments to be recorded as part of any
financing for the acquisition of the Property by Purchaser, (5) mechanics' or
similar liens against (a) any Tenants under Leases which are in full force and
effect on the Closing Date and which obligate the Tenants thereunder to remove
and discharge such liens at their expense or (b) any Anchor; (6) all matters set
forth on the Schedule of Permitted Exceptions attached hereto as EXHIBIT F; (7)
the REA; and (8) any exception on the Title Commitment not included in the
"Purchaser's Title Notice" (hereinafter defined) or deemed to be a Permitted
Exception pursuant to this Section 3.C. If the Title Commitment, Survey or New
Survey discloses exceptions other than the Permitted Exceptions, then, within
ten (10) business days after the receipt of the New Survey, Purchaser shall
notify Seller in writing ("PURCHASER'S TITLE NOTICE") of any such exceptions to
which Purchaser, in its sole discretion, objects ("TITLE OBJECTION"). Any such
exceptions not objected to by Purchaser as aforesaid shall be deemed to be
Permitted Exceptions. If Purchaser raises any Title Objection, Seller shall have
a period of thirty (30) days after it receives the Purchaser's Title Notice to,
at Seller's sole option, (A) remove any Title Objection which is not a Permitted
Exception; (B) obtain the Title Company's commitment to insure Purchaser against
any loss arising from such Title Objection by waiver or endorsement to the Title
Commitment; or (C) elect to do neither (A) nor (B). If Seller fails to notify
Purchaser on or before the expiration of said thirty (30) day period that Seller
has either removed any Title Objection, obtained the Title Company's commitment
to insure Purchaser against any loss resulting from such Title Objection or
elected to do neither (A) nor (B) as provided above, Purchaser shall have the
option, as its sole and exclusive remedy, by written notice to Seller given no
later than ten (10) business days after written notice from Seller to Purchaser
of Seller's inability or unwillingness to do either (A) or (B) above, to either
(a) waive the unremoved or uninsured Title Objection and proceed to Closing, in
which event such unremoved or uninsured Title Exception shall be deemed to be a
Permitted Exception, or (b) terminate this Agreement and obtain a return of the
Xxxxxxx Money, in which event, neither party shall have any further obligations
hereunder except for those obligations which by their express terms survive the
termination of this Agreement. If Purchaser does not elect to terminate this
Agreement, Purchaser shall consummate the Closing and accept title to the
Property subject to such Title Objection, in which event such Title Objection
shall be deemed a Permitted Exception. If any exceptions which are not Permitted
Exceptions are added to the Title Commitment or New Survey after Purchaser has
given to Seller Purchaser's Title Notice, Purchaser shall be entitled to review
and object to any such additional exceptions within five (5) days after its
11
receipt of the updated Title Commitment or updated New Survey containing such
new exceptions. In the event of any objection by Purchaser to any such
additional exceptions, the same terms and conditions provided above for the
removal, insurance over or approval of such additional exceptions shall apply.
Notwithstanding anything to the contrary, Seller shall (a) discharge or insure
over any monetary encumbrances of an ascertainable amount caused by the acts of
Seller not in excess of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) in the aggregate (excluding any monetary encumbrances which are
described on EXHIBIT C, EXHIBIT F or which are the responsibility of Purchaser
pursuant to Section 4.C(e)), and (b) any mortgages and related security
documents of record encumbering the Property ("MORTGAGES"). Purchaser agrees
that, notwithstanding the fact that a release of all Mortgages may not be
obtained prior to or at Closing, and that some or all of the Mortgages may still
be of record, so long as the Title Policy issued by the Title Company does not
include any of the Mortgages as an exception to title and the loan secured by
the Mortgage has been paid in full from the proceeds of the Closing, Purchaser
shall proceed to Closing as provided herein, and the existence of any of the
Mortgages shall not be an objection to Closing. Seller shall nevertheless be
obligated to cause Mortgages to be satisfied of record after Closing at Seller's
sole expense. At Purchaser's option, as expressed in a written notice to Seller
given not less than thirty (30) days prior to the Closing Date, but only to the
extent allowed by the current holder of a Mortgage on the Property (the
"HOLDER"), Seller shall not cause the Mortgage to be satisfied and instead shall
request that the Mortgage be assigned at Closing to Purchaser's lender or a
third party designated by Purchaser ("MORTGAGE ASSIGNMENT") upon payment to the
Holder of an amount equal to the remaining balance of principal and interest and
any other sums (collectively, "REMAINING BALANCE") secured by the Mortgage. The
Mortgage Assignment shall be expressly conditioned upon (i) Seller being fully
released from all obligations under the Mortgage pursuant to documents in form
and substance satisfactory to Seller, (ii) Purchaser paying all costs and
expenses in connection with the Mortgage Assignment, including without
limitation, to reimburse Seller at Closing for any costs and expenses it incurs
(exclusive of the payment of the Remaining Balance due the Holder as of the
Closing Date), and (iii) execution and delivery by Purchaser of all documents
requested by such current holders. Seller shall cooperate with Purchaser in
endeavoring to effect the Mortgage Assignment, provided that the foregoing
conditions are satisfied.
D. RELIANCE ON THE TITLE POLICY. Notwithstanding anything
contained in this Agreement to the contrary, with respect to all matters
affecting title to the Property and any liens or other encumbrances affecting
the Property, Purchaser acknowledges and agrees that it is relying upon its
title insurance policy. If Purchaser has a valid and enforceable claim under its
title insurance policy and the subject matter of that claim also constitutes a
breach of any representation, warranty or covenant made by Seller in this
Agreement or the Deed, Purchaser agrees that it will look solely to its title
insurance policy for recovery on such claim, and Purchaser shall not assert any
claim against Seller for a breach of a representation, warranty or covenant with
respect to such claim.
12
4. CLOSING.
A. CLOSING DATE. The "CLOSING" of the transaction contemplated
by this Agreement (that is, the payment of the Purchase Price, the delivery of
the documents of title to the Property, delivery of the Title Policy or a marked
up Title Commitment pursuant to which the Title Company is committed to issue
the Title Policy, and the satisfaction of all other terms and conditions
relating to Closing of this Agreement) shall be "New York Style" and occur at
the office of Xxxx, Gerber & Xxxxxxxxx LLP, located at 0 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, at 9:00 a.m. Central Time on December 1,
2004. The "Closing Date" shall be the date of Closing and Purchaser shall cause
the Cash Payment to be wired to Title Company by 11:00 am Eastern time on the
day preceding the Closing Date. Seller or Purchaser shall each be entitled to
extend the Closing Date for one period of not more than fifteen (15) days by
providing written notice thereof to the other party on or before the date which
is six (6) business days prior to the scheduled Closing Date; provided, if
Purchaser elects to extend the Closing Date, Purchaser shall deposit prior to or
concurrently with the giving of notice to Seller of Purchaser's election to
extend the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) ("FIRST
EXTENSION DEPOSIT") with the Escrow Agent as additional Xxxxxxx Money hereunder
and under the Escrow Agreement; provided however if the Holder requires
defeasance to occur on a scheduled payment date, then the Closing shall be
extended to the next scheduled payment date and the ability of Purchaser to
extend for one additional period of not more than fifteen (15) days as provided
in the next succeeding sentence shall be null and void and of no further force
and effect. Subject to the preceding sentence, Purchaser shall have the right to
extend the Closing Date for one additional period of not more than fifteen (15)
days by providing written notice thereof to Seller on or before the date which
is six (6) business days prior to the scheduled Closing Date, provided that
Purchaser deposits prior to or concurrently with the giving of such notice to
Seller the additional sum of One Hundred Thousand and No/100 Dollars
($100,000.00) ("SECOND EXTENSION DEPOSIT") with the Escrow Agent as additional
Xxxxxxx Money hereunder and under the Escrow Agreement. In addition, Seller
shall have the right to extent the Closing Date for two (2) additional periods
of up to thirty (30) days each in order to complete defeasance of the existing
Mortgage by providing written notice thereof to Purchaser on or before the date
which is three (3) business days prior to the scheduled Closing Date.
B. CLOSING DOCUMENTS
(i) SELLER'S CLOSING DELIVERIES. In addition to the other items and
documents required elsewhere under this Agreement to be delivered to
Purchaser at Closing, Seller shall also execute or deliver (or cause to be
delivered) to Purchaser the following at Closing, with any such documents
being executed by Seller and Purchaser being executed in counterparts:
(a) a quitclaim deed (the "DEED") conveying title to the Real
Property to Purchaser subject to the Permitted Exceptions, in the form
attached hereto as EXHIBIT G, duly acknowledged and in proper form for
recording;
(b) a xxxx of sale conveying title to the Tangible Personal Property
in the form attached hereto as EXHIBIT H, duly acknowledged;
(c) a form letter advising Tenants under the Leases of the change in
ownership of the Property in the form attached hereto as EXHIBIT I-1,
and a form letter to the Anchors advising of the change of ownership of
the Property in the form attached hereto as EXHIBIT I-2;
13
(d) an Assignment and Assumption of Leases in the form attached
hereto as EXHIBIT J;
(e) an Assignment and Assumption of Service Contracts and Intangible
Personal Property in the form attached hereto as EXHIBIT K;
(f) (i) the originals (or if not available, copies) of the Leases,
REA and Service Contracts, (ii) the originals (or if not available,
copies) of any Permits and Licenses, and (iii) all keys, access cards
or codes to the Property in Seller's possession or control (provided
that Seller leaving such items in the management office at the Property
is sufficient delivery thereof) (Seller may retain copies of the
Leases, REA, Service Contracts, and Permits and Licenses);
(g) a Non-Foreign Certification in the form attached hereto as
EXHIBIT L;
(h) a closing statement to be prepared by Seller, setting forth the
prorations, adjustments and credits to the Purchase Price as required
by Section 4.C hereof;
(i) an updated "Lease Schedule" (hereinafter defined) as of the
Closing Date and updated "Rent Roll" (hereinafter defined) as of the
day preceding the Closing Date, including a schedule of past-due rents
for the Property, if any, as described in Section 4.C(i)(b) hereof;
(j) evidence of the termination of the management agreement and
listing agreement, if any, with Managing Agent affecting the Property
to which Seller is a party;
(k) a written statement of Seller setting forth, to "Seller's
Knowledge" (hereinafter defined), any changes in Seller's
representations and warranties under this Agreement which have occurred
since the effective date of such representations and warranties;
(l) an ALTA Statement and GAP undertaking to be delivered to the
Title Company;
(m) the Assignment and Assumption of REA in the form attached hereto
as EXHIBIT R;
(n) evidence reasonably satisfactory to Purchaser and the Title
Company respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder;
(o) local and state transfer declarations; and
14
(p) any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement,
including such items reasonably required by the Title Company or
Purchaser (provided any such documents, instruments or agreements do
not increase the costs to or liability or obligations of Seller in a
manner not otherwise provided for in this Agreement).
(ii) PURCHASER. At Closing, Purchaser shall execute or deliver or cause
to be delivered, as required, to Seller the following, with any such
documents being executed by Seller and Purchaser being executed in
counterparts:
(a) the Cash Payment together with such other sums as shall be
needed to pay Purchaser's share of the transaction costs as provided in
Section 4.D, and any other sums as the Title Company shall require from
Purchaser, including costs related to Purchaser's loan, if any;
(b) the Assignment and Assumption of Leases, Assignment and
Assumption of Service Contracts and Intangible Personal Property, and
Assignment and Assumption of REA in the forms attached as EXHIBITS J,
K, AND R, respectively;
(c) the closing statement referred to in Section 4.B(i)(h) hereof;
(d) an ALTA Statement and GAP undertaking if requested by the
Title Company to be delivered to the Title Company;
(e) evidence reasonably satisfactory to Seller and the Title
Company respecting the due organization of Purchaser and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder; (f) local and state transfer
declarations; and
(g) a written statement of Purchaser setting forth, to
"Purchaser's Knowledge" (hereinafter defined), any changes in
Purchaser's representations and warranties under this Agreement which
have occurred since the effective date of such representations and
warranties; and
(h) any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement,
including such items reasonably required by the Title Company or Seller
(provided any such documents, instruments or agreements do not increase
the costs to or liability or obligations of Purchaser in a manner not
otherwise provided in this Agreement).
15
C. CLOSING PRORATIONS AND ADJUSTMENTS
(i) The following items are to be prorated or adjusted (as appropriate)
as of 11:59 p.m. Central Time on the day before the Closing Date and
reprorated (if necessary) pursuant to Section 4.C(ii) hereof, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on the day before the Closing Date, and
Purchaser shall be deemed the owner of the Property on the Closing Date, so
that all income and expense attributable to the Property and allocable (a)
to the period prior to the Closing Date shall be borne or credited to
Seller and (b) to the period on or after the Closing Date shall be borne or
credited to Purchaser:
(a) real estate (including, without limitation, property taxes and
school taxes) and personal property taxes and current installments of
assessments affecting the Property which are payable by Seller in the
calendar year in which Closing occurs (on the basis of the most recent
ascertainable assessment if the current xxxx is not then available)
shall be prorated as of the Closing Date on an accrual basis based upon
the period of assessment, regardless of the year for which such taxes
or assessments are assessed. Attached hereto as EXHIBIT T is a schedule
that shows the real estate taxes payable in calendar 2004,
the basis of assessment and an illustration of the proration of such
real estate taxes.
(b) the "minimum" or "base" rent and estimated payments of
"Percentage Rent" (hereinafter defined) payable by Tenants; provided,
however, that rent and all other sums which are due and payable to
Seller as of the Closing Date by any Tenant but uncollected as of the
Closing Date shall not be adjusted, but Purchaser shall cause the rent
and other sums for the period prior to the Closing Date to be remitted
to Seller if, as and when collected (including any penalties and
interest permitted by the applicable Lease to be charged to the Tenant
for late payment). All payments from Tenants on account of rent
received after the Closing Date whether by Seller or Purchaser shall
first be applied to the current monthly rent or other sums currently
due under the applicable Lease, then to delinquent rentals and other
delinquent sums due under the applicable Lease, if any, due Purchaser
and then to delinquent rentals and other delinquent sums due Seller. At
Closing, Seller shall deliver to Purchaser a schedule of all such past
due but uncollected rent and other sums owed by Tenants. Purchaser
shall include the amount of such rent and other sums in the bills
thereafter submitted to the Tenants in question after the Closing.
Purchaser shall use commercially reasonable efforts to collect such
past due sums, but Purchaser shall not be obligated to commence a
lawsuit to collect any such sums or to evict any Tenant for the failure
to pay any such sums. Seller shall retain the right to commence a
lawsuit to collect any such sums after the Closing, provided Seller may
not seek to terminate any Lease or evict any Tenant.
16
(c) to the extent not set forth on the schedule of uncollected rent
described in Section 4.C(i)(b) hereof, "percentage" or "overage" rent
("PERCENTAGE RENT") that is (1) attributable to any Percentage Rent
lease year in which the Closing Date falls and (2) not yet determinable
as of the Closing Date (collectively, "CURRENT YEAR PERCENTAGE RENT"),
shall be prorated as follows: promptly upon receipt by Purchaser,
Purchaser shall furnish to Seller copies of all sales reports received
from Tenants relative to Current Year Percentage Rent, including,
without limitation, all sales reports with respect to any Tenants whose
Percentage Rent lease years have expired as of the Closing but whose
sales reports were not delivered to Seller as of the Closing Date and
sales reports of any Tenants whose Percentage Rent lease years expire
after the Closing (but include any time period prior to Closing), and
the amount of any Current Year Percentage Rent shall be payable in
accordance with such Tenant's Lease as existing as of the Closing Date,
and Purchaser shall (to the extent not paid to Seller by way of
estimated payments prior to Closing) pay to Seller a portion of such
Percentage Rent based upon the apportionment being made as of the
Closing Date (in proportion to the relative number of days in the
subject Percentage Rent lease year occurring prior and subsequent to
the Closing Date), promptly after reconciliation with the applicable
Tenant at the end of the subject Percentage Rent lease year. Seller
shall retain any Current Year Percentage Rent already collected from
Tenants under the Leases prior to Closing, and Purchaser shall promptly
pay to Seller any Current Year Percentage Rent collected by Purchaser
in the month in which Closing occurs; provided, however, Seller shall
make any necessary adjusting payment to Purchaser, due to any
over-collection by Seller of the Current Year Percentage Rent, within
fifteen (15) days after presentment to, and approval by, Seller of
Purchaser's calculation and Purchaser shall make any necessary
adjusting payment to Seller, due to any under-collection by Seller,
within fifteen (15) days after presentment to, and approval by, Seller
of Purchaser's calculation. Purchaser's calculation shall be made
within fifteen (15) days after reconciliation with the applicable
Tenant at the end of the subject Percentage Rent lease year. If Seller
disputes, in writing, Purchaser's calculation, the parties shall submit
the matter to dispute resolution in accordance with Section 9.D hereof.
(d) Seller, as landlord under the Leases, is currently collecting
from Tenants additional rent to cover taxes, insurance, utilities,
maintenance and other operating costs and expenses incurred by Seller
(such expenses, collectively "EXPENSES", and such collections,
collectively "COLLECTIONS"). Non-delinquent Collections for the month
in which Closing occurs shall be prorated in the same manner as minimum
or base rents. Within sixty (60) days after the end of the year in
which Closing occurs, Purchaser (i) shall calculate (with Seller's
cooperation but Seller shall not be required to incur any third party
costs) the Expenses incurred and Collections received for the year of
Closing by Seller and Purchaser and (ii) shall prepare and present to
Seller for its review and approval, which approval shall not be
unreasonably withheld or delayed, a calculation of the Collections
received and Expenses incurred by each of Seller and Purchaser. Seller
shall make any necessary adjusting payment to Purchaser due to any
over-collection by Seller of Collections from any Tenant in excess of
the Tenant's share of Expenses incurred by Seller that are reimbursable
by such Tenant, within fifteen (15) days after presentment to, and
approval by, Seller of Purchaser's calculation and Purchaser shall make
any necessary adjusting payment to Seller, due to any under-collection
of such amounts by Seller, within fifteen (15) days after presentment
to, and approval by Seller of Purchaser's calculation. If Seller
disputes, in writing, Purchaser's calculation, the parties shall submit
the matter to dispute resolution in accordance with Section 9.D hereof.
The parties agree that all (a) severance pay due to current
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employees of Managing Agent who have not otherwise been offered
continued employment by Purchaser for the period after the Closing on
similar employment terms shall be paid by Seller and (b) employee
performance bonuses for employees of Managing Agent at the Property for
the calendar year in which Closing occurs shall be paid by Seller
through the Closing Date by payment to Managing Agent on or before the
Closing Date; provided, however, that Purchaser agrees to include such
costs referred to in (a) and (b) above in operating costs or marketing
charges, as appropriate, of the Property for calendar year 2004 (if
bonuses to employees working at the Property were included in operating
costs or marketing charges and were reimbursed by Tenants in calendar
year 2003), and to the extent that such costs are collected from or
reimbursed by Tenants, Purchaser shall reimburse Seller such amounts.
Either party may inspect the other's books and records related to the
Property to confirm the calculation upon two (2) Business Days prior
written notice to the other party.
(e) if Closing occurs, Purchaser shall be responsible for the
payment of all "Tenant Inducement Costs" (hereinafter defined) and
leasing commissions which become due and payable (whether before or
after Closing) pursuant to Leases entered into after the date hereof
other than any of the Earn-Out Leases for which Seller is paid an
Earn-Out Payment (except as specifically set forth on EXHIBIT N) and
all Tenant Inducements Costs and leasing commissions (A) as a result of
any renewal option or expansion option with respect to existing Leases,
which option has not been exercised as of the date hereof, (B) as a
result of any new Leases entered into after the date hereof and prior
to Closing to the extent such new Lease is permitted to be entered into
in accordance with Section 5.A hereof and is not an Earn-Out Lease or
identified on EXHIBIT N; (C) as a result of any Lease executed by
Purchaser after Closing other than an Earn-Out Lease for which Seller
is paid an Earn-Out Payment; or (D) pursuant to the express terms of a
Lease and are due and payable after Closing other than the Leases
identified on EXHIBIT N or an Earn-Out Lease for which Seller is paid
an Earn-Out Payment. Seller shall be responsible for the payment of all
Tenant Inducement Costs and leasing commissions which are set forth on
EXHIBIT N, and any other Tenant Inducement Costs and leasing
commissions with respect to Earn-Out Leases except as provided in
Section 2.B. If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall
credit Seller therefor at Closing. If, as of the Closing, Seller shall
not have paid any Tenant Inducement Costs or leasing commissions for
which Seller is responsible under EXHIBIT N, Purchaser shall receive a
credit at Closing in such amounts. For purposes hereof, the term
"TENANT INDUCEMENT COSTS" shall mean any out-of-pocket payments
required under a Lease to be paid by the landlord thereunder to or for
the benefit of the Tenant thereunder which is in the nature of a Tenant
inducement, including, specifically, without limitation, Tenant
improvement costs, free rent periods, lease buyout costs, and moving,
design and refurbishment allowances (but excluding legal fees incurred
in connection with the preparation and negotiation of the lease).
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(f) the amount of unapplied security deposits held by Seller under
the Leases at Closing shall be credited to Purchaser at Closing. If any
of the Tenants have posted letters of credit as security deposits,
Seller shall take whatever action is reasonable and appropriate to
cause Purchaser to become the beneficiary of such letters of credit or
replacements thereof and such letters of credit shall be delivered to
Purchaser at Closing. To the extent any letter of credit has not been
reissued or endorsed in favor of Purchaser at Closing, and before a
substitute letter of credit is issued, Seller shall draw down on such
letter of credit and deliver the proceeds thereof to Purchaser,
provided that Purchaser has delivered to Seller (i) evidence reasonably
satisfactory to Seller of Tenant's default under the Lease and
Purchaser's right to draw upon the letter of credit pursuant to the
terms of the Lease, and (ii) a representation and warranty to Seller as
to the matters to be certified by Seller in making the draw upon the
letter of credit;
(g) to the extent not paid directly by Tenants, gas, water,
electric, telephone and all other utility and fuel charges, fuel on
hand (at cost plus sales tax), and any deposits with utility companies
assigned to Purchaser (to the extent possible, utility prorations will
be handled by final meter readings arranged by Seller and obtained from
the utility providers on or about the day immediately preceding the
Closing Date);
(h) amounts due and prepayments under the Service Contracts
assigned to Purchaser under this Agreement shall be prorated based upon
the periods to which they apply;
(i) assessments, contributions and charges collected by Seller
prior to Closing under the REA shall be prorated based upon the period
to which such amounts apply. Any such amounts collected by Purchaser
after Closing which relate to a period prior to Closing shall be
promptly remitted to Seller upon receipt by Purchaser;
(j) Seller shall give Purchaser a credit at Closing for the amount
held by Seller in any promotional or marketing fund; and
(k) other similar items of income and expenses of operation if and
to the extent not paid or reimbursed by Tenants.
(ii) Notwithstanding anything in Section 4.C to the contrary, if any
Tenant under a Lease or any Anchor is obligated to pay any prorated item
directly to the entity imposing same, such portion of the prorated item
shall not be apportioned between Seller and Purchaser unless such Tenant or
Anchor is in default under its respective Lease with respect to the payment
of any such item. If a Tenant is in default under its Lease with respect to
the payment of any such item, Purchaser agrees to use commercially
reasonable efforts to enforce the terms of the Lease (except that Purchaser
shall not be obligated to engage in any litigation, arbitration or to
terminate a Lease), provided, however, Seller shall retain the right to
bring suit against such Tenant if Purchaser is unsuccessful in its efforts
after ninety (90) days. If any item of income or expense set forth in this
Section 4.C is estimated, subject to final adjustment after Closing or
incorrectly calculated, then Seller and Purchaser shall make, and each
shall be entitled to, an appropriate reproration to each such item
promptly when accurate information becomes available, but in any event
prior to March 31, 2006 (the "PRORATION CUT-OFF DATE"). Any such
reproration shall be paid promptly in cash to the party entitled thereto.
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(iii) All insurance policies and Managing Agent's management agreement
and leasing agreement (if any) shall be terminated as of the Closing Date
and there shall be no proration with respect to these items.
(iv) Purchaser is not assuming any liability for payment of any salary
or other benefits to employees of Managing Agent accruing prior to the
Closing Date; provided that such amounts shall be treated as Expenses of
the Property for purposes of reimbursement by Tenants pursuant to the terms
of the Leases. Seller shall indemnify, defend and hold Purchaser harmless
from any claims made against Purchaser by an employee of Managing Agent
employed at the Property prior to Closing for salary or other benefits
accruing for any time period prior to Closing, including without
limitation, vacation time, sick time or other benefits, due and not paid to
such employee by Managing Agent.
(v) The terms of Section 4.C, to the extent they call for adjustments,
prorations, payments or indemnities after Closing, shall survive the
Closing through the Proration Cut-Off Date.
(vi) Seller agrees to indemnify, defend and hold Purchaser harmless
from any claims asserted by a Tenant against Purchaser for overpayment by
such Tenant of Expenses under such Tenant's Lease for all calendar years
prior to the calendar year in which Closing occurs; provided that such
indemnity shall only apply to matters for which Purchaser has asserted a
claim, in writing with reasonable specificity, to Seller prior to the
Proration Cut-Off Date. Purchaser agrees to indemnify, defend and hold
Seller and Managing Agent harmless from any claims asserted by a Tenant
against Purchaser, Seller or Managing Agent for overpayment of Expenses
under such Tenant's Lease for the calendar year in which the Closing occurs
and, from and after the Proration Cut-Off Date, from any claims asserted by
a Tenant against Seller or Managing Agent for overpayment of Expenses of
such Tenant under such Tenant's Lease for any calendar years prior to the
calendar year in which Closing occurs, except for any claims which were
made by Purchaser to Seller, in writing, with reasonable specificity, prior
to the Proration Cut-Off Date.
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D. TRANSACTION COSTS. Seller shall pay (i) one-half (1/2) of
all transfer taxes relating to transfer of title; (ii) one-half (1/2) of any
escrow fees, including "New York Style" closing fees; (iii) all recording fees
for the release of any Mortgage or any Mortgage Assignment; (iv) one-half (1/2)
of the cost of the title insurance premium for the Owner's Title Policy with an
extended coverage endorsement; and (v) the cost of the New Survey. Purchaser
shall pay (i) one-half (1/2) of the cost of the title insurance premium for the
Owner's Title Policy with an extended coverage endorsement; (ii) the costs of
all other endorsements to the Owner's Title Policy, any co-insurance and
re-insurance costs, and any other title costs; (iii) one-half (1/2) of all
transfer taxes relating to transfer of title; (iv) all recording fees other than
the cost to record the release of any Mortgages or any Mortgage Assignment; (v)
one-half (1/2) of any escrow fees, including "New York Style" closing fees; (vi)
all costs and expenses relating to any Mortgage Assignment or any new loan to
Purchaser, including any lender's title insurance policy and all Mortgage
transfer taxes, if any; and (vii) all costs and expenses to perform its due
diligence. Seller and Purchaser shall be responsible for the fees of their
respective attorneys.
E. POSSESSION. Upon Closing, Seller shall deliver to Purchaser
possession of the Property subject to the rights of the Tenants and the other
Permitted Exceptions in accordance with the terms of this Agreement.
F. GIFT CERTIFICATE PROGRAM. Purchaser acknowledges that
Seller is negotiating a gift certificate service agreement ("GIFT CERTIFICATE
AGREEMENT") with Store Financial Services, LLC substantially in the form
heretofore delivered to, and approved by, Purchaser. At Closing, Purchaser shall
assume all of the obligations of Seller under the Gift Certificate Agreement.
Seller and Purchaser agree to do such acts and execute such documents as may be
desirable to effect a seamless transition of the gift certificate program from
Seller to Purchaser. The Gift Certificate Agreement shall be deemed to be a
Service Contract.
5. OPERATION OF PROPERTY PRIOR TO CLOSING
A. Except as described below, Seller may not after the date
hereof until Closing modify, extend, renew, cancel or terminate any Lease, or
enter into any proposed Lease or amendment which is not terminable as of Closing
without Purchaser's consent, which consent shall not be unreasonably withheld,
conditioned or delayed until expiration of the Review Period and (i) after the
expiration of the Review Period, which consent may thereafter be withheld in
Purchaser's sole discretion; provided however, Seller may enter into short term
or temporary leases or licenses for a term not to exceed sixty (60) days that do
not provide for payment by the landlord or licensor thereunder of any allowances
or tenant inducements of a monetary nature without Purchaser's consent, and (ii)
Seller may enter into Earn-Out Leases without Purchaser's consent provided that
such each Earn-Out Lease meets the criteria for such lease set forth in Section
2.B. If Seller seeks in writing Purchaser's consent for any such action,
Purchaser shall respond in writing to Seller (therein giving consent or
specifying the precise nature of Purchaser's objection to the action) within
five (5) business days of receipt of Seller's request. Seller's request shall
include a copy of the proposed new Lease or amendment and a statement of the
estimated Tenant Inducement Costs and brokerage commissions. If Purchaser does
not respond within said five (5) business day period, Purchaser shall be deemed
conclusively to have consented to the action requested by Seller.
Notwithstanding the foregoing, Seller may, after the date hereof, enter into the
Earn-Out Leases with the Earn-Out Tenants provided that each such lease meets
the criteria for such lease set forth in Section 2.B.
B. From the date hereof until the Closing or earlier
termination of this Agreement, Seller shall not remove (or direct the removal)
of any item of Tangible Personal Property except as may be required for repair
or replacement, or retire obsolete property (provided such obsolete property is
replaced if required for the normal operation of the Mall) or supplies used in
the ordinary course of business.
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C. After expiration of the Review Period, Seller shall not (i)
enter into any new agreement, or amend any Service Contract, to the extent such
agreement or amendment would be binding upon Purchaser after Closing, or (ii)
terminate any Service Contract, without, in each instance, Purchaser's consent,
which consent shall not be unreasonably withheld or delayed. If Seller seeks in
writing Purchaser's consent for any such action, Purchaser shall respond in
writing to Seller (therein giving consent or specifying the precise nature of
Purchaser's objection to the action) within five (5) business days of receipt of
Seller's request (which request shall include a copy of the proposed new Service
Contract or amendment). If Purchaser does not respond within said five (5)
business day period, Purchaser shall be deemed conclusively to have consented to
the action requested by Seller. Notwithstanding the foregoing, Seller may after
the date hereof enter into the Gift Certificate Agreement substantially in the
form which has been delivered to Purchaser.
D. From the date hereof until the Closing or earlier
termination of this Agreement, Seller shall (i) maintain Seller's existing
insurance coverage with respect to the Property, (ii) use due diligence to keep
in full force and effect all licenses, permits and approvals pertaining to the
Property which Seller currently holds, and (iii) use reasonable efforts to
operate, manage and maintain the Property in accordance with existing practices,
reasonable wear and tear and damage by fire or other casualty excepted.
E. During the Review Period, Seller will cooperate with
Purchaser to have Seller's accountants make available to Purchaser and
Purchaser's accountants the 2003 audited financial statements for the Property
and the work papers therefor. In addition, Seller will cooperate with Purchaser
and Purchaser's accountants in their preparation of 2004 mid-year audited
financial statements for the Property and financial statements or financial
information thereafter through the Closing. All fees and expenses charged by
Seller's accountants for making audited financial statements and work papers
available for Purchaser and Purchaser's accountants and cooperating with
Purchaser and Purchaser's accountants with respect to the 2004 mid-year audited
financial statements for the Property shall be paid for by Purchaser or
reimbursed to Seller prior to Closing.
6. REPRESENTATIONS AND WARRANTIES
A. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents
and warrants to Purchaser that except as disclosed on EXHIBIT S attached hereto,
as of the date of this Agreement (unless otherwise stated below):
(i) Seller is a duly formed and validly existing limited
liability company organized under the laws of Delaware, and qualified
to transact business in New York and is in good standing in Delaware
and New York.
(ii) Seller has the full legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter
to be executed by it pursuant hereto (collectively, the "SELLER'S
DOCUMENTS") to consummate the transaction contemplated in this
Agreement, and to perform its obligations under this Agreement and the
Seller's Documents. The person signing this Agreement on behalf of
Seller is authorized to do so.
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(iii) This Agreement is, and all the Seller's Documents will
be, legal, valid, and binding obligations of Seller enforceable against
Seller in accordance with their respective terms (except to the extent
that such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or limiting the
rights of contracting parties generally), and does not and will not
violate any provisions of any, to Seller's Knowledge, regulation, law,
or court order, judgment, decree, private restriction or agreement to
which Seller is a party or to which it or the Property is subject.
(iv) Seller has not been served with or received any written
notice of any action, litigation, arbitration or other judicial or
administrative proceeding which is still pending with respect to the
Property that would adversely affect Seller's ability to perform its
obligations under this Agreement, or that would materially and
adversely affect the financial condition or operation of the Property
to which Seller is a party, nor, to Seller's Knowledge, has any such
litigation been filed with respect to the Property, except personal
injury claims that are otherwise insured by insurance policies
maintained by Seller and currently in effect.
(v) (a) To Seller's Knowledge, the information contained in
the schedule of leases attached hereto as EXHIBIT M-1 (the "LEASE
SCHEDULE") is true, correct and complete as of the date thereof. There
are no Leases other than those set forth in the Lease Schedule or
included as Permitted Exceptions.
(b) (1) To Seller's Knowledge, Seller holds no security
deposits from Tenants except as provided on EXHIBIT O attached
hereto.
(2) To Seller's Knowledge, each Lease is in full force
and effect.
(3) Except as provided on the "Rent Roll" attached
hereto as EXHIBIT "M-2", no written notice of an
existing and uncured default has been delivered by
Seller or any Tenant under any Lease.
(4) Except as provided on the Rent Roll, Seller has no
Knowledge of any existing and uncured default
under any Lease.
(5) Except as provided in the Lease Schedule or Rent
Roll, the copies of the Leases delivered to
Purchaser in accordance with Section 10.A hereof
are true, correct and complete copies of the
Leases in all material respects.
If any Lease contains provisions which are inconsistent with
the foregoing representations and warranties, such representations and
warranties shall be deemed modified to the extent necessary to
eliminate such inconsistency and to conform such representations and
warranties to the provisions of such Lease.
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(vi) To Seller's Knowledge, EXHIBIT C attached hereto is a
complete list of the Service Contracts. No written notice of an
existing default has been delivered by Seller or any other party under
any Service Contract. To Seller's Knowledge, the copies of the Service
Contracts delivered to Purchaser in accordance with Section 10.A hereof
are true, correct and complete copies of the Service Contracts in all
material respects.
(vii) Seller has no Knowledge of and has not received written
notice of any violations of any laws or other requirements of any
governmental authority having jurisdiction over the Property which
remain outstanding.
(viii) No person or entity has or on the Closing Date will
have any right or option to acquire all or any portion of the Property
or Leases.
(ix) The copy of the REA delivered to Purchaser in accordance
with Section 10.A hereof is true, correct and complete in all material
respects; no written notice of any existing and uncured default has
been delivered by Seller to any other party to the REA or received by
Seller from any other party to the REA; to Seller's Knowledge, the REA
is in full force and effect; and Seller has not transferred, assigned
or pledged its interest in the REA which will not be released prior to
Closing.
(x) Seller has never had any employees.
(xi) The execution and delivery of this Agreement by Seller,
the consummation of the transactions herein contemplated to be
performed by Seller, and compliance with the terms of this Agreement by
Seller will not conflict with, or with or without notice or the passage
of time or both, result in a breach of any of the terms or provisions
of, or constitute a default under any document, instrument or
agreement, oral or written, to which Seller is a party.
B. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser
represents and warrants to Seller that as of the date of this Agreement:
(i) Purchaser is a duly formed and validly existing limited
partnership organized under the laws of Delaware and on the Closing
Date will be qualified to transact business and in good standing in
Delaware and New York.
(ii) Purchaser has the full legal right, power and authority
to execute and deliver this Agreement and all documents now or
hereafter to be executed by Purchaser pursuant to this Agreement
(collectively, the "PURCHASER'S DOCUMENTS"), to consummate the
transaction contemplated hereby, and to perform its obligations
hereunder and under Purchaser's Documents. The person signing this
Agreement on behalf of Purchaser is authorized to do so. No consent of
any trustee, beneficiary, partner, shareholder, member, creditor,
investor, judicial or administrative body, authority or other party is
required which has not been obtained to permit Purchaser to enter into
this Agreement and consummate the transaction contemplated hereby.
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(iii) This Agreement is, and all the Purchaser's Documents
will be, legal, valid, and binding obligations of Purchaser enforceable
against Purchaser in accordance with their respective terms (except to
the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or
limiting the rights of contracting parties generally), and does not and
will not violate any provisions of any, to Purchaser's Knowledge,
regulation, law, or court order, judgment, decree, or agreement to
which Purchaser is a party or to which it is subject.
(iv) The execution and delivery of this Agreement by
Purchaser, the consummation of the transactions herein contemplated to
be performed by Purchaser, and compliance with the terms of this
Agreement by Purchaser will not conflict with, or with or without
notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under any document,
instrument or agreement, oral or written, to which Purchaser is a
party.
(v) Purchaser is not an employee benefit plan (a "PLAN")
subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, nor a person or entity
acting, directly or indirectly, on behalf of any Plan or using the
assets of any Plan to acquire the Property. Purchaser is not a "party
in interest" (as that term is defined in Section 3(14) of ERISA) with
respect to any Plan that is an investor in Seller, and Purchaser's
acquisition of the Property will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code. (vi) No financing for this transaction shall be provided by
Seller, nor is this transaction conditioned on Purchaser obtaining
financing for this transaction.
(vii) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the
transactions contemplated hereby.
C. Subject to Section 6.E, the representations and warranties
set forth in Section 6 hereof, as of the date made (or deemed made), shall
survive Closing for a period of six (6) months, but any claims thereunder must
be made in writing within said six (6) month period or they shall thereafter be
deemed lapsed, and be null and void.
D. The term "SELLER'S KNOWLEDGE" as used in this Agreement
means the actual knowledge possessed by Xxxxxxx X. Xxxxxx or Xxxx X. Xxxxxx
(without investigation or inquiry and not imputed or implied knowledge). The
term "PURCHASER'S KNOWLEDGE" as used in this Agreement means actual knowledge
possessed by Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx or Xxxxx Xxxxx (without
investigation or inquiry and not imputed or implied knowledge). Notwithstanding
anything contained herein to the contrary, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx and Xxxxx Xxxxx shall not have any personal
liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of Seller's or Purchaser's representations or
warranties herein being or becoming untrue, inaccurate or incomplete in any
respect.
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E. In the event that, prior to Closing, Purchaser has
knowledge that, as of Closing, Seller is in breach of any of the representations
and warranties set forth in Section 6.A or any of the agreements or covenants
set forth in Section 5 (collectively, "SELLER'S BREACHES") or Seller otherwise
discloses to Purchaser facts that are inconsistent with or different from the
information set forth in the representations and warranties in Section 6.A, and
the Closing occurs, then the representations and warranties in Section 6.A shall
be deemed to be modified or superseded by such disclosures, certificates or
other documents (and, in such event, Seller shall no longer have any liability
hereunder with respect to the portion of representation or warranty modified or
superseded herein, as applicable). Purchaser shall be deemed to have waived and
released Seller from all liability with respect to Seller's Breaches to which
Purchaser had knowledge prior to Closing.
7. CASUALTY LOSS AND CONDEMNATION
If, prior to Closing, the Real Property or any part thereof shall be
condemned, or destroyed or damaged by fire or other casualty, Seller shall
promptly so notify Purchaser. In the event the effect of such condemnation or
casualty occurring prior to Closing is "Material" (hereinafter defined),
Purchaser shall have the option by written notice to Seller within ten (10) days
of receipt of Seller's notice to Purchaser, either to terminate this Agreement
or to consummate the transaction contemplated by this Agreement notwithstanding
such condemnation, destruction or damage (and the Closing Date shall be extended
as necessary). If Purchaser elects to consummate the transaction contemplated by
this Agreement or fails to timely elect to terminate this Agreement, or if a
casualty or condemnation is not Material, Purchaser shall be entitled (a) in the
event of a condemnation, to receive the condemnation proceeds, and (b) in the
event of a casualty, to an assignment of the claims and proceeds of insurance
applicable thereto, and Seller shall, at Closing, execute and deliver to
Purchaser all customary proofs of loss, assignments of claims and other similar
items and shall give Purchaser a credit in the amount of the deductible. If,
upon a Material condemnation or casualty prior to Closing, Purchaser timely
elects to terminate this Agreement, the Xxxxxxx Money shall be returned to
Purchaser, in which event this Agreement shall, without further action of the
parties, become null and void and neither party shall have any further rights or
obligations under this Agreement, except for those obligations which by their
express terms survive the termination of this Agreement. For purposes of this
provision, a condemnation or casualty loss shall be deemed to be "Material" in
the event that the value of the Property taken or the cost of repairing or
restoring the portion of the Property in question would be greater than Five
Million and No/100 Dollars ($5,000,000.00). The provisions of this Section 7
shall supersede the provisions of any law regarding the allocation of the risk
of loss between purchasers and sellers.
8. BROKERAGE
Purchaser represents and warrants to Seller that it has not dealt with
any broker, finder or other party in connection with the negotiation of this
Agreement or otherwise in connection with the Property other than Xxxxxxxx
Xxxxxxxx ("XXXXXXXX"). If the Closing occurs, Purchaser shall indemnify and hold
Seller harmless from and against any and all claims of any brokers or finders
claiming by, through or under Purchaser in any way related to the sale and
purchase of the Property or this Agreement, including, without limitation,
reasonable attorneys' fees and expenses incurred by Seller in connection with
any such claim, except that Purchaser shall not be responsible for any
commission claim of Xxxxxxxx. Seller shall indemnify and hold Purchaser harmless
from and against any and all claims of Xxxxxxxx or any other brokers or finders
claiming by, through or under Seller in any way related to the sale and purchase
of the Property or this Agreement, including, without limitation, reasonable
attorneys' fees and expenses incurred by Purchaser in connection with any such
claim.
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9. DEFAULT AND REMEDIES
A. If Closing does not occur solely due to a default by Seller
hereunder, then as Purchaser's sole and exclusive remedy hereunder, Purchaser
may (A) terminate this Agreement, in which event the Xxxxxxx Money shall be
returned to Purchaser, and this Agreement shall be null and void, and neither
party shall have any rights or obligations under this Agreement (except such
obligations which by their express terms survive termination of this Agreement),
and in no event shall Purchaser be entitled to recover additional money damages
against Seller (except as provided in this Section 9.A or in Section 12.N
hereof) or (B) seek specific performance of Seller's obligations hereunder so
long as an action is filed within sixty (60) days of termination of this
Agreement; provided, however, if Purchaser is unable to obtain specific
performance of this Agreement due to an intentional breach of this Agreement by
Seller (i.e., a conveyance of the Property to a third party), Purchaser shall be
entitled to (i) reimbursement of its reasonable and verifiable out-of-pocket due
diligence expenses incurred in connection with this Agreement, including,
without limitation, attorneys' fees, up to a maximum of One Hundred Thousand and
no/100 Dollars ($100,000.00), in the aggregate, and (ii) payment of the sum of
Fifty Thousand and no/100 Dollars ($50,000.00) [collectively, the "SELLER
DEFAULT PAYMENT"].
B. If Purchaser fails to complete closing in accordance with
the terms of this Agreement then this Agreement may be terminated by Seller and
Seller shall be entitled to retain the Xxxxxxx Money as Seller's sole remedy and
as liquidated damages (the "PURCHASER DEFAULT PAYMENT").
C. After Closing and subject to any limitations set forth in
this Agreement, including, but not limited to, Sections 12.J and 12.L, Seller
and Purchaser shall, subject to the terms and conditions of this Agreement, have
such rights and remedies as are available at law or in equity, but only for such
obligations as expressly survive Closing; except that neither Seller nor
Purchaser shall be entitled to recover from the other consequential, exemplary,
punitive or special damages.
D. In the event of any disagreement, dispute or claim
concerning this Agreement or the transaction contemplated by this Agreement
between Seller and Purchaser (except for the matters described in Section 2.B
which are subject to arbitration pursuant to the terms described in Section 2.B,
and if such matter cannot be resolved within ten (10) days after written demand
by Purchaser or Seller to the other party that the matter in dispute be resolved
through arbitration, either Seller or Purchaser shall be entitled to submit such
matter to binding arbitration under the rules of the American Arbitration
Association (the "AAA") then in effect. The matter shall be submitted to
arbitration in Chicago, Illinois and the parties shall immediately request that
the AAA provide a list of qualified arbitrators. In the event the parties cannot
agree on a single arbitrator within ten (10) days after the parties have
received the list of arbitrators, each party shall designate one arbitrator from
the list within ten (10) days thereafter and the selected arbitrators shall then
select an additional arbitrator to complete the panel of arbitrators. If the two
arbitrators are unable to select an additional arbitrator, the AAA shall select
the additional arbitrator. All arbitration proceedings shall then be conducted
in an expedited manner and in accordance with the applicable rules of the AAA
with all costs of the arbitration proceeding (including, without limitation,
reasonable attorney's fees, arbitrators fees and witness fees) to be borne by
the non-prevailing party in accordance with this Agreement, which shall be
provided for in the arbitration award. The decision of the arbitrator(s) shall
be final and binding upon the parties and shall not be subject to appeal in any
court; provided, however, that notwithstanding anything herein to the contrary,
the award shall be subject to vacation or modification as provided in the
Uniform Arbitration Act or other similar act in effect in the State of Illinois.
27
E. Notwithstanding any other provision of this Agreement,
neither Seller nor Purchaser shall undertake any remedy allowed hereunder as a
result of the breach of this Agreement by the other party unless the breaching
party fails to cure its breach within three (3) business days following written
notice of breach from the non-breaching party to the breaching party.
F. Seller and Purchaser acknowledge and agree that: (i) the
Purchaser Default Payment is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of having withdrawn the Property from sale and the failure of
Closing to occur due to a default by Purchaser under this Agreement; (ii) the
actual damages suffered and costs incurred by Seller as a result of such
withdrawal and failure to close due to a default of Purchaser under this
Agreement would be extremely difficult and impractical to determine; (iii)
Purchaser seeks to limit its liability under this Agreement to the Purchaser
Default Payment in the event Closing does not occur due to a default by
Purchaser under this Agreement; and (iv) the Purchaser Default Payment
constitutes valid liquidated damages; provided, however, that the foregoing
shall not limit Seller's recourse against Purchaser under Sections 8, 10.A, 11
and 12.N.
G. Seller and Purchaser acknowledge and agree that: (i) the
Seller Default Payment is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by
Purchaser if the Closing does not occur solely due to a default by Seller; (ii)
the actual damages suffered and costs incurred by Purchaser due to a default by
Seller under this Agreement would be extremely difficult and impractical to
determine; (iii) Seller seeks to limit its liability under this Agreement to the
amount of the Seller Default Payment in the event Closing does not occur solely
due to a default by Seller under this Agreement; and (iv) the Seller Default
Payment constitutes valid liquidated damages; provided, however, that the
foregoing shall not limit Purchaser's recourse against Seller under Sections 8,
11 and 12.N.
SELLER'S INITIALS: (illegible) PURCHASER'S INITIALS:
----------- --------
28
10. CONDITIONS PRECEDENT
A. Purchaser shall have until 5:00 p.m. Central Standard Time
on October 11, 2004 (such period, the "REVIEW PERIOD") within which to inspect
and investigate the Property and its operations and to review the "Property
Information" (hereinafter defined). Purchaser shall have the right to terminate
the Review Period at any time prior to the end of the Review Period by notice to
Seller. If Purchaser, in its reasonable discretion, determines that the Property
is unsuitable for its purposes and notifies Seller in writing of such decision
within the Review Period, this Agreement shall be null and void and neither
party shall have any further rights or obligations under this Agreement, except
those obligations which by their express terms survive the termination of this
Agreement, and the Xxxxxxx Money, net of the Exclusivity Payment, shall be
returned to Purchaser, unless Purchaser paid the Exclusivity Payment directly to
Seller concurrently with the giving of Purchaser's notice that the Property is
not suitable, in which event the entire Xxxxxxx Money shall be returned to
Purchaser. If the Exclusivity Payment was not paid to Seller with Purchaser's
notice, Seller shall have the right to direct Escrow Agent to deduct the
Exclusivity Payment from the Xxxxxxx Money and deliver the Exclusivity Payment
to Seller prior to delivery of the balance of the Xxxxxxx Money to Purchaser. If
requested, Purchaser shall join in such direction to Escrow Agent. Seller shall
cooperate with Purchaser to allow Purchaser and Purchaser's Representatives
(hereinafter defined) access to the Property, to allow Purchaser and Purchaser's
Representatives access to all non-proprietary information and documentation, and
otherwise to promptly provide such non-proprietary information and documentation
relating to the Property and its operations as Purchaser may reasonably request
but excluding internal correspondence (but not excluding any correspondence
between Seller or Managing Agent with Tenants), analyses, appraisals,
projections or similar items. Purchaser's failure to terminate this Agreement
pursuant to this Section 10.A within the Review Period shall be deemed a waiver
by Purchaser of the condition contained in this Section 10.A. Purchaser's right
of inspection pursuant to this Section 10.A is and shall remain subject to the
rights of Tenants, the Anchors, and other occupants and users of the Property.
No inspection of Seller's records or any inspection that requires access to
portions of the Property not open to the public generally or invasive or other
physical testing or inspection of the Property shall be undertaken without two
(2) full business days' prior verbal notice to Seller. Seller shall have the
right to be present at any or all inspections. Neither Purchaser nor Purchaser's
Representatives shall contact any Tenants or any of the Anchors without prior
notice to Seller. Seller shall have the right to be present at any meeting
conducted by Purchaser or Purchaser's Representative with a Tenant or an Anchor.
No inspection shall involve the taking of samples or other physically invasive
procedures without the prior consent of Seller, which consent shall not be
unreasonably withheld or delayed and shall be deemed given if no objection is
made within five (5) business days following request for approval. Purchaser
shall repair any damage caused by Purchaser or Purchaser's Representative to the
Property and shall restore the Property as near as possible to its condition
existing prior to the testing or inspection of the Property hereunder. Purchaser
agrees to maintain and cause any of its representatives or agents conducting any
investigations or inspections, to maintain and have in effect commercial general
liability insurance with (i) limits of not less than One Million and 00/100
Dollars ($1,000,000.00) per occurrence for personal injury, including bodily
injury and death, and property damage, (ii) Seller, Blackstone Real Estate
Advisors L.P., and Managing Agent named as additional insured parties, and (iii)
waiver of subrogation. Purchaser shall deliver to Seller a copy of the
certificates of insurance effectuating the insurance required hereunder prior to
the commencement of such activities which certificates shall provide that such
insurance shall not be terminated or modified without at least thirty (30) days'
prior written notice to Seller. Notwithstanding anything to the contrary
contained in this Agreement, Purchaser shall indemnify, defend (with counsel
reasonably acceptable to Seller) and hold Seller, Blackstone Real Estate
Advisors L.P., and Managing Agent and their respective managers, members,
shareholders, directors, officers, partners, affiliates, employees and agents,
and each of them, harmless from and against any and all losses, claims, demands,
damages, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees incurred in connection therewith) arising out of or
resulting from Purchaser's exercise of its rights under this Section 10.A and
such indemnity shall survive the Closing or any termination of this Agreement.
29
B. Seller shall send estoppel certificates (individually, a
"TENANT ESTOPPEL CERTIFICATE" and collectively, the "TENANT ESTOPPEL
CERTIFICATES") in the form of EXHIBIT P-1 attached hereto (the "FORM TENANT
ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the
date hereof, excluding any Tenant under a Lease for one (1) year or less
("TEMPORARY TENANT"). Seller shall send an estoppel certificate ("ANCHOR
ESTOPPEL CERTIFICATE" and collectively, the "ANCHOR ESTOPPEL CERTIFICATES") to
Boscov's Department Store, Inc. ("Boscov's") and Christmas Tree Shops, Inc.
("X-MAS TREE SHOPS") in the form of EXHIBIT P-1 attached hereto, and to Sears
and Macy's in the forms of EXHIBITS P-2 AND P-3 attached hereto, respectively
(Boscov's, X-Mas Tree Shop, Sears and Macy's are individually referred to herein
as an "ANCHOR" and collectively as the "ANCHORS"). As a courtesy to Purchaser,
within five (5) business days following request by Purchaser to the extent
practicable, Seller shall send subordination, non-disturbance and attornment
agreements ("SNDA'S") prepared by Purchaser's lender to any Anchors and other
Tenants leasing over ten thousand (10,000) square feet designated by Purchaser
in a written notice delivered to Seller and shall request that such Anchors and
Tenants execute and return such SNDA's to Purchaser. The execution and delivery
of such SNDA's shall not be a condition to Closing, and neither Seller's nor
Purchaser's obligations under this Agreement shall be affected thereby.
It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at or prior to Closing, Estoppel Certificates (hereinafter defined)
executed by (x) all four (4) of the following Anchors (the "REQUIRED ANCHORS"):
Boscov's and X-Mas Tree Shop in substantially the form of EXHIBIT P-1 hereto,
and Sears and Macy's in substantially the forms of EXHIBITS P-2 AND P-3 hereto,
respectively; and (y) Tenants leasing seventy-five percent (75%) of the
"Occupied Square Footage" (hereinafter defined) in the Improvements ("REQUIRED
TENANTS"). "OCCUPIED SQUARE FOOTAGE", as used herein, shall mean all space in
the portion of the Mall owned by Seller and shall exclude any space being leased
by Temporary Tenants or leased or owned by Anchors. Seller shall not be in
default under this Agreement or have any liability to Purchaser if this
condition precedent is not satisfied.
The Tenant Estoppel Certificates executed by Required Tenants
shall be in substantially the form of the Form Tenant Estoppel Certificate;
provided that a Tenant Estoppel Certificate executed by a Required Tenant shall
be deemed an acceptable Tenant Estoppel Certificate for purposes of this Section
10.B as long as it is in the form or contains such specified information as the
applicable Lease requires the Required Tenant to provide or contains the
qualification by the Required Tenant of any statement as being to its knowledge
or as being subject to any similar qualification (the aforesaid acceptable
Tenant Estoppel Certificates to be delivered are collectively referred to as the
"REQUIRED TENANT ESTOPPEL CERTIFICATES").
30
The Anchor Estoppel Certificates executed by the Required
Anchors shall be in substantially the form of the respective Anchor Estoppel
Certificates; provided that an Anchor Estoppel Certificate executed by a
Required Anchor shall be deemed an acceptable Anchor Estoppel Certificate for
the purposes of this Section 10.B as long as (i) it is in the form or contains
such specified information as the applicable Lease or the REA, as the case may
be, requires the Required Anchor to provide or contains the qualification by the
Required Anchor of any statement as being to its knowledge or as being subject
to any similar qualification; (ii) in the case of Sears, it is substantially in
the form of EXHIBIT P-4 attached hereto; and (iii) in the case of Macy's, it is
substantially in the form of EXHIBIT P-5 attached hereto (the aforesaid
acceptable Anchor Estoppel Certificates to be delivered are collectively
referred to as the "REQUIRED ANCHOR ESTOPPEL CERTIFICATES").
In the event that Seller is unable to provide the Required
Tenant Estoppel Certificates to Purchaser at the Closing for all of the Required
Tenants, Seller may, at its option, elect to execute and deliver to Purchaser
certificates (individually, a "SELLER TENANT ESTOPPEL CERTIFICATE", and,
collectively, the "SELLER TENANT ESTOPPEL CERTIFICATES") substantially in the
same form as the certificate attached hereto as EXHIBIT Q (the "FORM SELLER
TENANT ESTOPPEL CERTIFICATE") covering the particular Required Tenants necessary
so that Purchaser shall receive, at Closing, either Required Tenant Estoppel
Certificates or Seller Tenant Estoppel Certificates from Required Tenants;
provided that Purchaser shall not be required to accept Seller Tenant Estoppel
Certificates for Required Tenants representing more than ten percent (10%) of
the Occupied Square Footage ("PERCENTAGE LIMITATION"). The Tenant Estoppel
Certificates and the Anchor Estoppel Certificates are collectively referred to
herein as the "ESTOPPEL CERTIFICATES". In the event that Seller elects to
deliver such Seller Tenant Estoppel Certificates, each statement therein shall
survive for a period terminating on the earlier of (i) six (6) months from the
Closing Date, or (ii) the date on which Purchaser has received an executed
Estoppel Certificate signed by the Required Tenant under the Lease in question
or the Required Anchor under the its respective Lease or the REA, as the case
may be. If Purchaser receives an Estoppel Certificate which contains some, but
not all of the matters set forth in the Required Tenant Estoppel Certificate (a
"PARTIAL CERTIFICATE") and Seller elects to provide a Seller Tenant Estoppel
Certificate for such Required Tenant, then (1) if the Partial Certificate is
received prior to Closing, the Seller Tenant Estoppel Certificate may omit
matters contained in the Partial Certificate and (2) if the Partial Certificate
is received after Closing, the Seller Tenant Estoppel Certificate shall cease to
survive as to the matters contained in the Partial Certificate. A Partial
Certificate shall be deemed to be an Estoppel Certificate delivered by such
Tenant and a Seller Tenant Estoppel Certificate given to supplement such Partial
Certificate shall not be taken into account in determining the Percentage
Limitation so long as such Tenant has acknowledged that its Lease is in full
force and effect and that no party to such Tenant's lease is in material breach
thereunder.
If the "ESTOPPEL CONTINGENCY" (as hereinafter defined) is not
satisfied, Purchaser may, as its sole action and remedy, by delivering written
notice to Seller on or prior to the Closing Date, terminate this Agreement, in
which event the Xxxxxxx Money shall be returned to Purchaser, this Agreement
shall be null and void, and neither party shall have any further rights or
obligations under this Agreement, except for those obligations which by their
express terms survive the termination of this Agreement. As used herein, the
"ESTOPPEL CONTINGENCY" shall mean Seller's delivery of (aa) Tenant Estoppel
Certificates or Seller Tenant Estoppel Certificates for the Required Tenants, as
required above, and (bb) the Anchor Estoppel Certificates for the Required
Anchors, as required above. The Estoppel Contingency shall not be deemed
satisfied if (a) the Estoppel Certificates received from Tenants (including
Anchors) whose aggregate annual base or minimum rent represents more than two
percent (2%) of the projected 2005 net operating income for the Property assert
claims, which claims if true, would allow such Tenants pursuant to the terms of
their respective Leases to terminate their Leases, or (b) the Estoppel
Certificates received from Tenants raise claims, the aggregate amount of which
Purchaser reasonably determines would likely result in a potential liability to
the owner of the Property in an aggregate amount greater than Two Million
Dollars ($2,000,000).
31
If any Estoppel Certificates contain statements or allegations
that a default or potential default exists on the part of Seller under the Lease
in question or under the REA, as the case may be, or contain information
inconsistent with any representations of Seller contained in this Agreement, and
Purchaser elects to close the purchase and sale transaction contemplated herein
notwithstanding the existence of such statements, allegations or information,
then such Estoppel Certificates shall be deemed acceptable for purposes of this
Section 10.B, notwithstanding the existence of such allegations, statements or
information and Seller shall have no liability to Purchaser hereunder with
respect to the existence of such allegations, statements or information, except
as otherwise specifically set forth herein.
C. It shall be a condition precedent to Purchaser's
obligations to purchase the Property pursuant to this Agreement that Purchaser
receive at Closing, a current Title Policy issued pursuant to the Title
Commitment indicating no exceptions other than the Permitted Exceptions or an
unqualified, written commitment from the Title Company to deliver the Title
Policy to Purchaser following the Closing with an effective date as of the date
of recordation of the Deed. In the event such condition precedent is not
satisfied (unless due to an act or omission of Purchaser), Purchaser shall be
entitled to provide written notice thereof to Seller, in which event this
Agreement shall terminate, the Xxxxxxx Money shall be returned to Purchaser and
neither party shall have any further rights or obligations under this Agreement,
except those obligations which by their terms expressly survive termination of
this Agreement.
D. It shall be a condition precedent to Purchaser's
obligations to purchase the Property pursuant to this Agreement that (i) all of
the representations and warranties of Seller set forth in this Agreement shall
be true, correct and complete in all material respects as of the Closing Date;
provided, however, that Seller shall have the right to update the Rent Roll and
Lease Schedule for changes after the date hereof and any representations and
warranties based upon the Rent Roll or Lease Schedule shall be deemed to refer
to the updated Rent Roll and Lease Schedule; and (ii) Seller shall have
performed and observed, in all material respects, all covenants and agreements
of this Agreement to be performed and observed by Seller as of the Closing Date.
In the event such conditions precedent are not satisfied (unless due to an act
or omission of Purchaser in which event the provisions of Section 9.B shall
apply), Purchaser shall be entitled to provide written notice thereof to Seller,
in which event this Agreement shall terminate, the Xxxxxxx Money shall be
returned to Purchaser and neither party shall have any further rights or
obligations under this Agreement, except those obligations which by their terms
expressly survive termination of this Agreement.
E. It shall be a condition precedent to Seller's obligations
to sell the Property pursuant to this Agreement that (i) all of the
representations and warranties of Purchaser set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date; and
(ii) Purchaser shall have performed and observed, in all material respects, all
covenants and agreements of this Agreement to be performed and observed by
Purchaser as of the Closing Date. In the event such conditions precedent are not
satisfied (unless due to an act or omission of Purchaser in which event the
provisions of Section 9.B shall apply), Purchaser shall be entitled to provide
written notice thereof to Seller, in which event this Agreement shall terminate,
the Xxxxxxx Money shall be returned to Purchaser and neither party shall have
any further rights or obligations under this Agreement, except those obligations
which by their terms expressly survive termination of this Agreement.
32
11. PROPERTY INFORMATION AND CONFIDENTIALITY
A. Purchaser agrees that, prior to the Closing, Purchaser
shall use diligent efforts to keep all Property Information confidential, and
that Property Information shall not, without the prior consent of Seller, be
disclosed by Purchaser or Purchaser's Representatives except to Purchaser
Representatives, and that Property Information will not be used for any purpose
other than investigating and evaluating the Property. Moreover, Purchaser agrees
that, prior to the Closing, the Property Information will be transmitted only to
the Purchaser's Representatives who need to know the Property Information for
the purpose of investigating and evaluating the Property, and who are informed
by Purchaser of the confidential nature of the Property Information and who
agree in writing to comply with and be bound by this Section 11.A for the
benefit of Seller. The provisions of this Section 11.A shall not apply to
Property Information which is a matter of public record or to the extent
disclosure is required to comply with applicable laws, court orders or the
requirements of the stock exchange on which Purchaser's parent company is traded
("APPLICABLE STOCK EXCHANGE"). Seller acknowledges that Purchaser or a
"Purchaser Affiliate" (as hereinafter defined) is contemplating an initial
public offering of stock. After Purchaser's deposit of the Increased Deposit
with the Escrow Agent, Purchaser may make disclosures of information that
Purchaser's legal or accounting advisors deem necessary in connection with the
Section 1 or other filings to be made by Purchaser with the U.S. Securities and
Exchange Commission in connection with such offering ("IPO DISCLOSURES").
B. Except as expressly permitted under Section 11.A, or as
required by applicable laws, court orders or the Applicable Stock Exchange,
Purchaser and Seller hereby agree not to release or cause or permit to be
released any press notices, publicity (oral or written) or advertising promotion
relating to, or otherwise announce or disclose or cause or permit to be
announced or disclosed, in any manner whatsoever, the terms, conditions, parties
to or substance of this Agreement or the transactions contemplated herein,
without first obtaining the written consent of the other party, as to the
portion of the disclosure relating to this transaction, the Property, the other
party or its "Affiliates" (hereinafter defined), as the case may be, which
consent shall not be unreasonably withheld or delayed. It is understood that the
foregoing shall not preclude either Purchaser or Seller from discussing the
substance or any relevant details of the transactions contemplated in this
Agreement, subject to the terms of this Section 11, with any of Purchaser's
Representatives or Seller's representatives, accountants, professional
consultants, potential investors or potential lenders, as the case may be, or
prevent Purchaser or Seller hereto from complying with applicable laws, court
orders, or the requirements of the Applicable Stock Exchange. Notwithstanding
the foregoing, the parties (and each employee, representative, or other agent of
the parties) may disclose to any and all persons, without limitation of any
kind, the tax treatment and any facts that may be relevant to the income tax
33
structure of the transactions contemplated by this Agreement; provided, however,
that no party (and no employee, representative or other agent thereof) shall
disclose any other information that is not necessary to understand the tax
treatment and tax structure of the transactions contemplated by this Agreement,
or any other information to the extent that such disclosure could result in a
violation of any Federal or state securities laws. If Purchaser violates the
provisions of this Article 11 and elects to terminate this Agreement prior to
the expiration of the Review Period in accordance with the terms of Section
00.X, Xxxxxxxxx shall pay to Seller, as liquidated damages and not as a penalty,
the sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), which
the parties agree is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of such breach ("CONFIDENTIALITY BREACH PAYMENT"). Purchaser shall
pay the Confidentiality Breach Payment to Seller no later than five (5) business
days after Seller's written notice to Purchaser advising of such breach and that
a Confidentiality Breach Payment is due or, Seller, at its option, may direct
Escrow Agent to deduct the amount of the Confidentiality Breach Payment from the
Xxxxxxx Money and deliver it to Seller prior to payment of the balance of the
Xxxxxxx Money, less the Exclusivity Payment and any other deductions, to
Purchaser. If requested, Purchaser shall join in such direction to Escrow Agent.
If a violation of this Article 11 by Purchaser has occurred and Purchaser
proceeds to close the transactions contemplated under this Agreement, Seller
shall not be entitled to any damages, liquidated or otherwise, on account of any
such breach.
C. In the event this Agreement is terminated, Purchaser and
Purchaser's Representatives shall promptly return to Seller all originals and
copies of the "Property Information" described in Section 11.D(i) hereof in the
possession of Purchaser or Purchaser's Representatives.
D. As used in this Agreement, the term "PROPERTY INFORMATION"
shall mean:
(i) All information and documents relating to the Property,
the operation thereof or the sale thereof (including, without
limitation, Leases, Service Contracts, and Permits and Licenses)
furnished to, or otherwise made available by Seller or any of Seller's
Transaction Affiliates (as herein defined) for review by, Purchaser, or
its respective directors, officers, employees, affiliates, partners,
brokers, agents, title insurers, surveyors or other representatives,
including, without limitation, attorneys, accountants, contractors,
consultants, engineers and financial advisors (collectively,
"PURCHASER'S REPRESENTATIVES"); and
(ii) All analyses, compilations, data, studies, reports or
other information or documents prepared or obtained by Purchaser or
Purchaser's Representatives containing or based in any material part on
any information or documents described in the preceding clause (i).
E. In addition to any other remedies available to Seller under
this Agreement, Seller shall have the right to seek equitable relief, including,
without limitation, injunctive relief or specific performance, against Purchaser
or Purchaser's Representatives in order to enforce the provisions of this
Section 11.
34
F. The provisions of this Section 11 shall survive the
termination of this Agreement.
12. MISCELLANEOUS
A. All understandings and agreements heretofore had between
Seller and Purchaser with respect to the Property are merged in this Agreement,
which alone fully and completely expresses the agreement of the parties.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser without the prior written consent of
Seller, except to (i) an entity controlled and owned by Purchaser or an entity
under common ownership and control with Purchaser (collectively, a "PURCHASER
ENTITY") or (ii) an entity owned and controlled by a Purchaser Entity and an
entity owned and controlled by Xxxxxx-Xxxxx Partners (the entities described in
(i) and (ii) above are herein collectively referred to as a "PURCHASER
AFFILIATE"). No assignment to a Purchaser Affiliate or to an approved unrelated
third party shall relieve the original Purchaser from its obligations hereunder.
In the event Purchaser makes a permitted assignment of this Agreement, the
assignee thereof, including, without limitation, a Purchaser Affiliate, shall
assume all of the obligations of Purchaser hereunder and Purchaser shall deliver
to Seller at Closing a fully executed copy of the document evidencing the
assignment and assumption.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. Seller and Purchaser agree that no broker shall be a party
to or a third party beneficiary of this Agreement or the Escrow Agreement and
the consent of a broker shall not be necessary to any agreement, amendment or
document with respect to the transaction contemplated by this Agreement.
F. All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and delivered
personally, by certified mail, return receipt requested, postage prepaid, or by
overnight courier (such as Federal Express), charges prepaid, or by facsimile
transmission (with confirmation of transmission), addressed as follows:
35
If to Seller: BRE/Colonie Center L.L.C.
c/o Blackstone Real Estate Advisors L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 212/000-0000
Facsimile: 212/583-5583
With copies to: Xxxx, Xxxxxx & Xxxxxxxxx LLP
Xxx Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telephone: 312/000-0000
Facsimile: 312/429-3530
If to Purchaser: Xxxxxxx Equities Operating Partnership, LP
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 602/000-0000
Facsimile: 602/277-7774
With copies to: Xxx Xxxxxx, Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 602/000-0000
Facsimile: 602/254-5942
All notices given in accordance with the terms hereof shall be deemed received
three (3) business days after posting (in the case of notices sent by certified
mail), one (1) business day after deposit (in the case of overnight courier), or
when delivered personally or otherwise received or receipt is refused (in the
case of all other methods of notice). Either party hereto may change the address
for receiving notices, requests, demands or other communication by notice sent
in accordance with the terms of this Section 12.F. All notices may be given on
behalf of a party by legal counsel to such party.
G. PURCHASER COVENANTS AND AGREES AS FOLLOWS: ANY INFORMATION,
REPORTS, STATEMENTS, DOCUMENTS OR RECORDS (COLLECTIVELY, THE "DISCLOSURES")
PROVIDED OR MADE TO PURCHASER, ITS CONSTITUENTS OR ANY OF PURCHASER'S
REPRESENTATIVES BY SELLER, ITS AGENTS, EMPLOYEES, ATTORNEYS OR CONSULTANTS
CONCERNING THE CONDITION OF THE PROPERTY SHALL NOT BE REPRESENTATIONS AND
WARRANTIES. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER
SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY. EXCEPT AS EXPRESSLY SET
36
FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT NEITHER SELLER NOR ANY
OF SELLER'S TRANSACTION AFFILIATES IS MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITIONS, UTILITIES, OPERATING HISTORY OR PROJECTIONS,
VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH
GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY
INFORMATION OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO
PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER
ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, AT
CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS". EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND NEITHER SELLER NOR ANY OF SELLER'S TRANSACTION AFFILIATES IS LIABLE FOR
OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
(INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, ANY REAL
ESTATE BROKER, ITS ATTORNEY OR AGENT REPRESENTING OR PURPORTING TO REPRESENT
SELLER, OR ANY THIRD-PARTY, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY,
ORALLY OR IN WRITING. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OF, OR CURATIVE ACTION TO BE TAKEN WITH
RESPECT TO, ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE
PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY DISCLOSURES OR OTHER
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER, ANY REAL ESTATE BROKER, ITS
ATTORNEY OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS AND PURCHASER, UPON EXPIRATION OF THE REVIEW PERIOD, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER AND SELLER'S TRANSACTION
AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
37
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER OR SELLER'S TRANSACTION AFFILIATES AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS,
VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES
OR MATTERS REGARDING THE PROPERTY, EXCEPT TO THE EXTENT NOT PERMITTED BY
APPLICABLE LAW. PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND
AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR
CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR SELLER'S TRANSACTION
AFFILIATES BASED ON (A) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND
SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY
SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED, (B) ANY DISCHARGE, DISPOSAL,
RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL WHATSOEVER, ON, AT, TO, OR
FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR
IN THE VICINITY OF THE PROPERTY. THIS PARAGRAPH SHALL SURVIVE CLOSING.
H. In any lawsuit or other proceeding initiated under or with
respect to this Agreement, Purchaser and Seller waive any right they may have to
trial by jury.
I. If for any reason Purchaser does not consummate the Closing
other than due solely to a default by Seller, then Purchaser shall, upon
Seller's written request, assign and transfer to Seller, without representation,
warranty or recourse, all of its right, title and interest in and to any and all
third-party studies, reports, surveys, and other information, data or documents
relating to the Property or any part thereof prepared by or at the request of
Purchaser, its consultants, employees or agents (excluding internal
correspondence, analyses, appraisals, projections, reports and memoranda and
attorney/client communications or other privileged or similar information) to
the extent assignable, and shall deliver to Seller copies of all of the
foregoing.
J. Notwithstanding anything in this Agreement to the contrary,
after Closing, Seller shall not be liable to Purchaser with respect to any
representations, warranties, covenants or obligations under this Agreement or
any documents delivered at Closing which survive Closing ("SURVIVING
OBLIGATIONS") for (i) more than six (6) months following the Closing Date unless
a different time period is expressly stated in this Agreement for a particular
Surviving Obligation, and then only for such expressly stated time period, or
(ii) any amounts in excess of Three Million and No/100 Dollars ($3,000,000.00)
in the aggregate, Purchaser hereby waiving any and all claims it may have to
seek such recoveries after such six (6) month period or in excess of the
foregoing amount. Claims for Surviving Obligations must be made in writing with
reasonable specificity within said six (6) month period or they shall thereafter
be deemed lapsed and be null and void, and with respect to any claim brought
within said six (6) month period, an action must be filed within three (3)
months thereafter or such claim shall be deemed waived and released.
Notwithstanding anything to the contrary contained herein, Purchaser shall not
bring any claims against Seller under this Agreement, and Seller shall not be
obligated to pay for any claims brought by Purchaser, until such time as the
aggregate amount of damages incurred by Purchaser under this Agreement is equal
to or greater than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00).
38
K. Seller and Purchaser hereby designate the Title Company to
act as and perform the duties and obligations of the "reporting person" with
respect to the transaction contemplated by this Agreement for purposes of 26
C.F.R. Section 1.6045-4(e)(5) relating to the requirements for information
reporting on real estate transaction closed on or after January 1, 1991. In this
regard, Seller and Purchaser each agree to execute at Closing, and to cause the
Title Company to execute at Closing, a designation agreement (if required by the
Title Company), designating the Title Company as the reporting person with
respect to the transaction contemplated by this Agreement.
L. Each party agrees that it does not have and will not have
any claims or causes of action against any disclosed or undisclosed trustee,
partner, affiliate, subsidiary, beneficiary, principal, member, agent, managing
entity, shareholder, director, officer, or employee of the other party (whether
direct or indirect), including, without limitation, their attorneys,
accountants, consultants, engineers, brokers, and advisors (collectively,
"TRANSACTION AFFILIATES"), arising out of or in connection with this Agreement
or the transactions contemplated hereby and further agrees not to xxx or
otherwise seek to enforce any personal obligation against any of Transaction
Affiliates of the other party with respect to any matters arising out of or in
connection with this Agreement or the transactions contemplated hereby.
M. This Agreement may be executed in any number of
counterparts, any or all of which may contain the signatures of less than all of
the parties, and all of which shall be construed together as a single
instrument. For purposes of this Agreement, a facsimile of an executed
counterpart shall constitute an original.
N. In the event of litigation or arbitration between the
parties with respect to this Agreement or the transactions contemplated hereby,
the prevailing party therein shall be entitled to recover from the losing party
therein its attorneys' fees and costs of suit or arbitration.
O. For purposes of this Agreement, the masculine shall be
deemed to include the feminine and the neuter, and the singular shall be deemed
to include the plural, and the plural the singular, as the context may require.
P. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability of any other
provision.
Q. The captions contained in this Agreement are not a part of
this Agreement. They are only for the convenience of the parties and do not in
any way modify, amplify or give full notice of any of the terms, covenants or
conditions of this Agreement.
R. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective legal or personal representatives,
heirs, executors, administrators, successors, and permitted assigns.
39
S. Neither this Agreement nor a memorandum thereof shall be
recorded by any party.
T. If any of the dates specified in this Agreement shall fall
on a Saturday, a Sunday or a "holiday", then the date of such action shall be
deemed to be extended to the next business day. As used herein, "holiday" shall
mean a day upon which banks in the States of Illinois or New York are required
or permitted to be closed for business, and "business day" shall mean a day
other than a Saturday, Sunday or holiday.
U. Purchaser and Seller agree to execute all documents and
instruments reasonably required in order to consummate the purchase and sale
herein contemplated; provided, however, that neither party shall be obligated to
incur any obligation, cost or liability not expressly required hereunder.
V. This Agreement and the legal relations between the parties
hereto shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without regard to its principles of conflicts of
law.
W. From and after the Closing through March 31, 2006, Seller
shall provide reasonable assistance to Purchaser in connection with the
preparation of financial statements and bills and the adjustment of losses and
claims and the enforcement or settlement of any such claims. Without limiting
the foregoing, Seller shall, upon the request of Purchaser from time to time
prior to March 31, 2006, provide signed representation letters with respect to
revenues and expenses of Seller (only with respect to the period of Seller's
ownership of the Property) if required under Generally Accepted Auditing
Standards as promulgated by the Auditing Standards Division of the American
Institute of Certified Public Accountants from time to time to enable
Purchaser's accountant to render an opinion on Purchaser's financial statements.
The provisions of this Section shall survive Closing until March 31, 2006.
X. Purchaser will cooperate with Seller for a period expiring
seven (7) years after Closing in case of Seller's need in response to any legal
requirement, a tax audit, tax return preparation or litigation threatened or
brought against Seller, by allowing Seller and its agents or representatives
access, upon reasonable advance notice (which notice shall identify the nature
of the information sought by Seller), at all reasonable times to examine and
make copies of any and all instruments, files and records delivered or made
available to Purchaser at Closing, which right shall survive the Closing.
Y. Purchaser acknowledges and agrees that it has no interest
in any rebate (the "CHILLER REBATE") issued by the New York State Energy
Research and Development Authority in connection with the purchase and
installation of two centrifugal electric chillers on the Property and any
Chiller Rebate shall belong solely to the Equitable Life Assurance Society of
the United States ("EQUITABLE"). If after Closing, Purchaser receives the
Chiller Rebate, Purchaser shall promptly pay it over to Seller for payment to
Equitable.
40
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the date first above written.
SELLER:
BRE/COLONIE CENTER L.L.C.,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director and Vice President
PURCHASER:
XXXXXXX EQUITIES OPERATING PARTNERSHIP,
LP, a Delaware limited
partnership
By: Xxxxxxx Holdings Business Trust I
a Massachusetts business trust, its general partner
By:
----------------------------------------------------
Xxxxxxxx Xxxxxxx, Trustee
41
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the date first above written.
SELLER:
BRE/COLONIE CENTER L.L.C.,
a Delaware limited liability company
By:
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director and Vice President
PURCHASER:
XXXXXXX EQUITIES OPERATING PARTNERSHIP,
LP, a Delaware limited
partnership
By: Xxxxxxx Holdings Business Trust I
a Massachusetts business trust, its general partner
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------------------------
Xxxxxxxx Xxxxxxx, Trustee
