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EXHIBIT 10.B
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the __
day of August, 1997 (the "Effective Date"), by and between THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation ("Equitable"),
and EML ASSOCIATES, a New York general partnership ("EML") (Equitable and EML
together called "Seller"), having its home office at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and TALISMAN BROOKDALE L.L.C., a Delaware
limited liability company ("Purchaser"), having an office c/o The Xxxxxxxxxxx
Companies, at 0000 Xxx Xxxx Xxxxxx, Xxxxx 000X, Xxxxx Xxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in
Henepin County, Minnesota, more particularly described on Exhibit A
attached hereto and made a part hereof, together with all and singular
the rights and appurtenances pertaining to such property, including any
right, title and interest of Seller in and to adjacent streets, alleys,
rights-of-way, strips, gores, privileges, easements, and appurtenances
pertaining thereto, and any unpaid award for any taking by condemnation
or any damage thereto or by reason of a change in the grade of any
street or highway (the property described in clause (a) of this Section
1.1 being herein referred to collectively as the "Land");
(b) all of Seller's right, title and interest in and to
the buildings, structures, fixtures and other improvements on the Land,
including specifically, without limitation, the enclosed mall building
containing approximately 200,000 square feet of gross leasable area and
known as "Brookdale Center" (the property described in clause (b) of
this Section 1.1 being herein referred to collectively as the
"Improvements");
(c) all of Seller's right, title and interest in and to
all tangible personal property upon the Land or within the
Improvements, including specifically, without limitation, appliances,
machinery, equipment, signage, furniture, carpeting, draperies and
curtains,
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tools and supplies, and other items of personal property (excluding
cash and proprietary software and electronic work product) used
exclusively in connection with the operation of the Land and any
replacements to any of the same, and the Improvements (the property
described in clause (c) of this Section 1.1 being herein referred to
collectively as the "Personal Property");
(d) all of Seller's right, title and interest in and to
all agreements listed and described on Exhibit B (the "Lease Schedule")
attached hereto and made a part hereof, pursuant to which any portion
of the Land or Improvements is used or occupied by anyone other than
Seller (the property described in clause (d) of this Section 1.1 being
herein referred to collectively as the "Leases");
(e) all of Seller's right, title and interest in and to
all agreements, if any, described in the Title Commitment (as
hereinafter defined) relating to the rights and obligations of Seller
and the other owners of the anchor stores in the shopping center (the
"Anchors") (the property described in clause (e) of this Section 1.1
being herein referred to collectively as the "Operating Agreements");
(f) all of Seller's right, title and interest in and to
(i) all assignable contracts and agreements (collectively, the "Service
Contracts") listed and described on Exhibit O (the "Service Contracts
Schedule") attached hereto and made a part hereof, relating to the
upkeep, repair, maintenance or operation of the Land, Improvements or
Personal Property which will extend beyond the date of Closing (as such
term is defined in Section 4.1 hereof), including specifically, without
limitation, all assignable equipment leases, (ii) all assignable
existing warranties and guaranties (expressed or implied) issued to
Seller in connection with the Improvements or the Personal Property,
and (iii) the right to use the name "Brookdale Mall," and (iv) any
other agreements relating to the Center in which Seller has an interest
and which Purchaser may elect to assume (the property described in this
Section 1.1(f) being sometimes herein referred to collectively as the
"Intangibles"); and
(g) all of Seller's right, title and interest, if any, in
and to governmental permits, certificates, licenses, authorizations,
approvals, and variances relating to the ownership and operation of the
Property, only to the extent same are assignable (the "Permits").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases, the Operating Agreements, the Intangibles, and the Permits
are hereinafter sometimes referred to collectively as the "Property." Property
does not include Seller's right, title and interest in any real estate tax
refund with respect to the Land and Improvements for periods prior to Closing.
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1.3. Permitted Exceptions. The Property shall be conveyed subject
only to the matters which are, or are deemed to be, Permitted Exceptions
pursuant to Article II hereof (herein referred to collectively as the "Permitted
Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase
the Property for a total of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
to a bank account designated by Seller in writing to Purchaser prior to the
Closing.
1.6 Xxxxxxx Money. Within two (2) business days after the
execution and delivery of this Agreement, Purchaser shall deposit with Guaranty
Title, Inc., as agent for Lawyers Title Insurance Company, having its office at
000 Xxxxxx Xxx. Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx; Attention: Xxxxxx
XxXxxxxx (the "Escrow Agent"), the sum of Five Hundred Thousand and No/100
Dollars ($500,000.00) (the "Xxxxxxx Money") in good funds, either by certified
bank or cashier's check or by federal wire transfer. The Escrow Agent shall hold
the Xxxxxxx Money in an interest-bearing account in accordance with the terms
and conditions of an escrow agreement entered into among Seller, Purchaser and
Escrow Agent simultaneously with the execution of this Agreement. All interest
accruing on such sum shall become a part of the Xxxxxxx Money and shall be
credited against the Purchase Price upon closing and/or shall be distributed as
Xxxxxxx Money in accordance with the terms of this Agreement.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination; Commitment for Title Insurance. Purchaser
shall have until seven (7) business days after receipt of the Title Commitment
and the Survey (as such terms are defined below), but in no event later than
September 30, 1997 (the "Title Inspection Period") to examine title to the
Property. During the Title Inspection Period, Purchaser shall obtain from
Lawyers Title Insurance Corporation or, at Purchaser's election, First American
Title Insurance Company (the "Title Company") at Purchaser's expense, an ALTA
title insurance commitment (the "Title Commitment") covering the Property,
showing all matters affecting title to the Property and binding the Title
Company to issue at Closing an Owner's Policy of Title Insurance in the full
amount of the Purchase Price pursuant to Section 2.4 hereof. Purchaser shall
instruct the Title Company to deliver, upon completion, to Purchaser, Seller and
the surveyor described in Section 2.2 below copies of the Title Commitment and
copies of all instruments referenced in Schedule B and Schedule C thereof.
2.2 Survey. Prior to the expiration of the Title Inspection
Period, Purchaser shall, at Purchaser's expense, employ a reputable surveyor or
surveying firm, licensed by the state in
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which the Property is located, to survey the Property and prepare and deliver,
upon completion, to Purchaser, the Title Company and Seller an ALTA survey
thereof (the "Survey") reflecting the total area of the Property, the location
of all improvements, recorded easements and encroachments, if any, located
thereon and all building and set back lines and other matters of record with
respect thereto.
2.3 Title Objections; Cure of Title Objections. Purchaser shall
have until the expiration of the Title Inspection Period to notify Seller, in
writing, of such objections as Purchaser may have to anything contained in the
Title Commitment or the Survey. Any item contained in the Title Commitment or
any matter shown on the Survey to which Purchaser does not object during the
Title Inspection Period shall be deemed a Permitted Exception. In the event
Purchaser shall notify Seller of objections to title or to matters shown on the
Survey prior to the expiration of the Title Inspection Period, Seller shall have
the right, but not the obligation, to cure such objections; provided, however,
Seller shall be obligated to cure any objections relating to financing
instruments executed, assumed or taken subject to by Seller, mortgages,
mechanics liens resulting from contracts let by Seller or its agents
(specifically excluding any mechanics liens resulting from the acts or omissions
of any tenants). Within ten (10) days after receipt of Purchaser's notice of
objections, Seller shall notify Purchaser in writing whether Seller elects to
attempt to cure such objections as to which Seller does not have an obligation
to cure. If Seller elects to attempt to cure, and provided that Purchaser shall
not have terminated this Agreement in accordance with Section 3.2 hereof, Seller
shall have until the date of Closing to attempt to remove, satisfy or cure the
same and for this purpose Seller shall be entitled to a reasonable adjournment
of the Closing if additional time is required, but in no event shall the
adjournment exceed sixty (60) days after the date for Closing set forth in
Section 4.1 hereof, provided such adjournment does not cause a material adverse
effect upon the closing conditions or financing terms of any commitment for
financing obtained by Purchaser, it being understood, however, that Purchaser's
obligations hereunder are not conditioned upon Purchaser obtaining financing. If
Seller elects not to cure any objections specified in Purchaser's notice as to
which Seller does not have an obligation to cure, or if Seller is unable to
effect a cure prior to the Closing (or any date to which the Closing has been
adjourned), Purchaser shall have the following options: (i) to accept a
conveyance of the Property subject to the Permitted Exceptions, specifically
including any matter objected to by Purchaser which Seller is unwilling or
unable to cure, and without reduction of the Purchase Price (except as to
objections that Seller has an obligation to cure as described above); or (ii) to
terminate this Agreement by sending written notice thereof to Seller, and upon
delivery of such notice of termination, this Agreement shall terminate and the
Xxxxxxx Money shall be returned to Purchaser, and thereafter neither party
hereto shall have any further rights, obligations or liabilities hereunder
except to the extent that any right, obligation or liability set forth herein
expressly survives termination of this Agreement. If Seller notifies Purchaser
that Seller does not intend to attempt to cure any title objection as to which
it has no obligation to cure; or if, having commenced attempts to cure any
objection, Seller later notifies Purchaser that Seller will be unable to effect
a cure thereof; Purchaser shall, within five (5) business days after such notice
has been given, notify Seller in writing whether Purchaser shall elect to accept
the conveyance under clause (i) or to terminate this Agreement under clause
(ii).
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2.4 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser such title to the Property as will enable the Title
Company to issue to Purchaser, at Purchaser's expense, an ALTA Owner's Policy of
Title Insurance (the "Title Policy") covering the Land and Improvements, in the
full amount of the Purchase Price. Notwithstanding anything contained herein to
the contrary, the Property shall be conveyed subject only to the following
matters, which shall be deemed to be Permitted Exceptions:
(a) the rights of tenants under the Leases and any new
Leases entered into between the Effective Date and Closing and, where
required, approved by Purchaser in accordance with the terms of this
Agreement;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing;
(c) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and
zoning laws, ordinances and regulations, now or hereafter in effect
relating to the Property;
(d) the Operating Agreements; and
(e) items appearing of record or shown on the Survey and,
in either case, not objected to by Purchaser or waived or deemed waived
by Purchaser in accordance with Sections 2.3 or 2.5 hereof.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser
shall have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company or the Surveyor between (a) the effective date of the Title Commitment
referred to above, and (b) the date on which the transaction contemplated herein
is scheduled to close. With respect to any objections to title set forth in such
notice, Seller shall have the same option to cure and Purchaser shall have the
same option to accept title subject to such matters or to terminate this
Agreement as those which apply to any notice of objections made by Purchaser
before the expiration of the Title Inspection Period. If Seller is required to
or elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a reasonable additional time to effect such a cure,
but in no event shall the extension exceed sixty (60) days after the date for
Closing set forth in Section 4.1 hereof, provided such extension does not void
or materially alter any financing secured or to be secured by Purchaser, it
being understood, however, that Purchaser's obligations hereunder are not
conditioned upon Purchaser obtaining financing.
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ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning as of July
18, 1997 and ending at 5:00 p.m. (local time at the Property) on September 15,
1997 (the "Inspection Period"), and thereafter until Closing, Purchaser shall
have the right to make a physical inspection of the Property, to perform
non-invasive tests on the Property and to examine at such place or places at the
Property, in the offices of the property manager or elsewhere as the same may be
located, any operating files maintained by Seller or its property manager in
connection with the leasing, maintenance and/or management of the Property,
including, without limitation, the Leases, lease files, Operating Agreements,
Service Contracts, Records (as defined below), Permits, insurance policies,
bills, real estate tax bills, invoices, receipts and other general records
relating to the income and expenses of the Property, correspondence, surveys,
plans and specifications, warranties for services and materials provided to the
Property, engineering reports, environmental audits and similar materials, but
excluding materials not directly related to the leasing, maintenance and/or
management of the Property such as Seller's internal memoranda, financial
projections, budgets, appraisals, accounting and tax records and similar
proprietary or confidential information. Purchaser understands and agrees that
any on-site inspections or testing of the Property shall be conducted upon at
least twenty-four (24) hours' prior written notice to Seller and in the presence
of Seller or its representative (if the same are available). Any such
inspections and testing shall be performed by companies selected by Purchaser
and approved by Seller, which approval shall not be unreasonably withheld or
delayed. Upon request, Seller shall furnish to Purchaser such written requests
and/or authorizations as Purchaser and its agents may reasonably require to make
inquiry with respect to the Property. Purchaser agrees to repair any damage to
the Property and to indemnify Seller against and hold Seller harmless from any
claim for liabilities, costs, expenses (including reasonable attorneys' fees
actually incurred) damages or injuries arising out of or resulting from the
inspection or testing of the Property by Purchaser or its consultants or agents,
and notwithstanding anything to the contrary in this Agreement, such obligation
to repair and to indemnify and hold harmless Seller shall survive Closing or any
termination of this Agreement. Purchaser shall maintain and shall ensure that
Purchaser's consultants maintain public liability and property damage insurance
in the amount of $1,000,000 and in form and substance adequate to insure against
all liability of Purchaser and its consultants, respectively, and each of its
agents, employees or contractors, arising out of the inspections or testing. All
inspections and testing shall occur at reasonable times agreed upon by Seller
and Purchaser and shall be conducted so as not to interfere unreasonably with
use of the Property by Seller or its tenants.
3.2 Environmental Termination. Seller agrees that in the event
Purchaser determines that the environmental condition of the Property either (i)
is not in material compliance with all applicable environmental laws, which
determination shall be based solely on an environmental report prepared by
Purchaser's environmental consultant or (ii) renders alterations to the
Improvements unduly expensive in Purchaser's reasonable judgement, Purchaser
shall have the right to terminate this Agreement by giving written notice
thereof, together with a copy of said environmental report, to Seller prior to
the expiration of the Inspection Period. If Purchaser gives
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such notice of termination within the Inspection Period and such report
indicates that the Property is not in material compliance with all applicable
environmental laws, this Agreement shall terminate and the Xxxxxxx Money shall
be returned to Purchaser. Time is of the essence with respect to the provisions
of this Section 3.2. If Purchaser fails to give Seller a notice of termination
and a copy of said environmental report prior to the expiration of the
Inspection Period, Purchaser shall no longer have any right to terminate this
Agreement under this Section 3.2 and (subject to the provisions of Sections 2.5
and 4.6) and shall be bound to proceed to Closing and consummate the transaction
contemplated hereby pursuant to the terms of this Agreement.
ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall be held at the offices of Seller's
counsel, Xxxxxx Xxxxxx & Zavis, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, or Purchaser's lender if necessary, at 10:00 a.m. on a date mutually
agreed to by Seller or Purchaser, but in no event later than the first business
day after sixty (60) days following the Effective Date. Purchaser shall have the
right to extend the date of Closing by up to thirty (30) days by giving Seller
notice thereof on or before the first business day after forty-five (45) days
after the Effective Date, and depositing with Escrow Agent, on the date such
notice is given, an additional Xxxxxxx Money deposit of $250,000. At Closing,
Seller and Purchaser shall perform the obligations set forth in, respectively,
Section 4.2 and Section 4.3, the performance of which obligations shall be
concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed limited warranty
deed (the "Deed") in recordable form, conveying the Land and
Improvements, subject only to the Permitted Exceptions; the warranty of
title in the Deed will be only as to claims made by, through or under
Seller and not otherwise;
(b) deliver to Purchaser a duly executed xxxx of sale
conveying the Personal Property with limited warranty of title but
without warranty, expressed or implied, as to merchantability and
fitness for any purpose;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed
assignment and assumption agreement pursuant to which (i) Seller shall
indemnify Purchaser and hold Purchaser harmless from and against any
and all claims pertaining to the Leases arising prior to Closing and
(ii) Purchaser shall indemnify Seller and hold Seller harmless from and
against any and all claims pertaining to the Leases arising from and
after the Closing, including without limitation, claims made by tenants
with respect to tenants' security deposits to the extent paid, credited
or assigned to Purchaser;
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(d) assign to Purchaser, and Purchaser shall assume, the
Seller's interest in and to any Operating Agreements by duly executed
assignment and assumption agreement pursuant to which (i) Seller shall
indemnify Purchaser and hold Purchaser harmless from and against any
and all claims pertaining to the Operating Agreements arising prior to
Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the
Operating Agreements arising from and after the Closing;
(e) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Service Contracts and
the other Intangibles by duly executed assignment and assumption
agreement pursuant to which (i) Seller shall indemnify Purchaser and
hold Purchaser harmless from and against any and all claims pertaining
to the Service Contracts or the other Intangibles arising prior to
Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the Service
Contracts or the other Intangibles arising from and after the Closing;
(f) deliver to Purchaser such Anchor Estoppels and Tenant
Estoppels (both as defined in Section 5.4(b) hereof) received by
Seller;
(g) join with Purchaser to execute a notice in form and
content reasonably satisfactory to Purchaser and Seller which Purchaser
shall send to each tenant under each of the Leases and Anchor informing
such tenant and Anchor of the sale of the Property and of the
assignment to Purchaser of Seller's interest in, and obligations under,
the Leases (including, if applicable any security deposits) and the
Operating Agreement, as applicable, and directing that all rent and
other sums payable after the Closing under each such Lease or Operating
Agreement shall be paid as set forth in the notice;
(h) deliver to Purchaser a certificate, dated as of the
date of Closing and executed on behalf of Seller by a duly authorized
officer thereof, stating that the representations and warranties of
Seller contained in this Agreement are true and correct in all material
respects as of the date of Closing (with appropriate modifications of
those representations and warranties made in Section 5.1 hereof to
reflect any changes therein including without limitation any changes
resulting from actions under Section 5.4 hereof) or identifying any
representation or warranty which is not, or no longer is, true and
correct and explaining the state of facts giving rise to the change,
which change shall be subject to the provisions of Section 4.6(b)
below, if applicable, and provided no such change dealing with issues
unrelated to the rental income of the Property shall have a material
adverse effect upon the Property. In no event shall Seller be liable to
Purchaser for, or be deemed to be in default hereunder by reason of,
any breach of representation or warranty which results from any change
that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is
beyond the reasonable control of Seller to prevent, provided, however,
that the occurrence of a change which is not permitted hereunder or is
beyond the reasonable control of Seller to prevent shall, if materially
adverse to Purchaser, constitute the non-
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fulfillment of the condition set forth in Section 4.6(b); if, despite
changes or other matters described in such certificate, the Closing
occurs, Seller's representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements made
in such certificate;
(i) deliver to Purchaser such evidence as Purchaser's
counsel and/or the Title Company may reasonably require as to the
authority of the person or persons executing documents on behalf of
Seller;
(j) deliver to Purchaser an affidavit duly executed by
Seller stating that Seller is not a "foreign person" as defined in the
Federal Foreign Investment in Real Property Tax Act of 1980 and the
1984 Tax Reform Act;
(k) deliver to Purchaser the original (to the extent
available, and if not available, copies thereof certified by Seller as
being the true, correct and complete copy of the) Leases, Operating
Agreements, Service Contracts and licenses and Permits, if any, in the
possession of Seller or Seller's agents, together with copies of such
leasing and property files and records which are material in connection
with the continued operation, leasing and maintenance of the Property.
Purchaser shall cooperate with Seller for a period of 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, at Seller's sole cost and
expense, of any and all instruments, files and records, which right
shall survive the Closing;
(l) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions in its present condition
excepting casualty and condemnation (subject to the provisions of
Article VII below), reasonable wear and tear and natural deterioration
between the date hereof and Closing;
(m) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement;
(n) Exhibits updating Exhibits B, G, and H certified by
Seller in accordance with this Agreement with respect to each of the
Leases, which in effect updates all of the information contained in
said Exhibits;
(o) Keys to all locks on the Property which Seller has in
its possession or control;
(p) A credit to Purchaser of the amount of any net
adjustments in favor of Purchaser;
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(q) All other deliveries required to be made at the
Closing by Seller to Purchaser pursuant to the terms of this Agreement;
(r) Seller's ALTA Statement in the form required by the
Title Company;
(s) Any consents, approvals or notices as are necessary
in connection with the transfer of the Properties under the Leases
and/or Operating Agreements; and
(t) deliver to Purchaser originals (to the extent
available) of all surveys, site plans, building plans, specifications,
as-built drawings, and operating manuals to the extent the same are in
Seller's or Seller's agents' possession and all other books, records,
files and other documents, relating to the day to day operations of the
Property (collectively, the "Records").
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price,
as increased or decreased by prorations and adjustments as herein
provided, in immediately available wire transferred funds pursuant to
Section 1.5 above, it being agreed that at Closing the Xxxxxxx Money
shall be delivered to Seller and applied towards payment of the
Purchase Price;
(b) join Seller in execution of the instruments described
in Sections 4.2(c), 4.2(d), 4.2(e), and 4.2(g) above;
(c) deliver to Seller a letter duly executed by
Purchaser, confirming that Purchaser is not acquiring the Property with
the assets of an employee benefit plan as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974 ("ERISA"), and, in
the event Purchaser is unable or unwilling to make such a
representation, Purchaser shall be deemed to be in default hereunder,
and Seller shall have the right to terminate this Agreement and to
receive and retain the Xxxxxxx Money;
(d) deliver to Seller such evidence as Seller's counsel
and/or the Title Company may reasonably require as to the authority of
the person or persons executing documents on behalf of Purchaser; and
(e) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to
the Property as of 12:01 a.m., on the day of Closing, as if Purchaser
were vested with title to the Property during the entire day upon which
Closing occurs:
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(i) rents, if any, as and when collected (the
term "rents" as used in this Agreement includes all
payments due and payable by tenants under the
Leases);
(ii) taxes (including personal property taxes on
the Personal Property) and assessments levied against
the Property which are not then due and payable
("Taxes"), other than Taxes which are payable
directly to the taxing authority by tenants under
their respective Leases;
(iii) payments under the Operating Agreements and
the Service Contracts;
(iv) gas, electricity and other utility charges
for which Seller is liable, if any, such charges to
be apportioned at Closing on the basis of the most
recent meter reading occurring prior to Closing (but
not more than 60 days prior to Closing); and
(v) any other operating expenses or other items
pertaining to the Property which are customarily
prorated between a purchaser and a seller in the area
in which the Property is located.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, (A) Seller shall, at Seller's
option, either deliver to Purchaser any security
deposits actually held by Seller pursuant to the
Leases or credit to the account of Purchaser the
amount of such security deposits (to the extent such
security deposits are not applied against delinquent
rents or otherwise as provided in the Leases and
noted on Exhibit B, provided however that said
security deposits shall not be applied against
delinquent rents relating to the month in which the
Closing occurs unless the subject Tenant has vacated
its premises (Seller shall provide Purchaser with
notice of its intent to apply any security deposits
against any delinquent rents), and (B) Purchaser
shall credit to the account of Seller all refundable
cash or other deposits posted with utility companies
serving the Property, or, at Seller's option, Seller
shall be entitled to receive and retain such
refundable cash and deposits.
(ii) Any Taxes paid at or prior to Closing shall
be prorated based upon the amounts actually paid. If
Taxes for the current year have not been paid before
Closing, Seller shall be charged at Closing an amount
equal to that portion of such Taxes which relates to
the period before Closing and Purchaser shall pay the
Taxes prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for
which the tax rate or assessed valuation, or both,
have not yet been fixed shall be based upon the tax
rate and/or assessed valuation last fixed. To the
extent that the actual
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Taxes for the current year differ from the amount
apportioned at Closing, the parties shall make all
necessary adjustments by appropriate payments between
themselves following Closing.
(iii) Charges referred to in Section 4.4(a) above
which are payable by any tenant to a third party
shall not be apportioned hereunder, and Purchaser
shall accept title subject to any of such charges
unpaid, and Purchaser shall look solely to the tenant
responsible therefor for the payment of the same. If
Seller shall have paid any of such charges on behalf
of any tenant, and shall not have been reimbursed
therefor by the time of Closing, Purchaser shall
credit to Seller an amount equal to all such charges
so paid by Seller.
(iv) As to gas, electricity and other utility
charges referred to in Section 4.4(a)(iv) above,
Seller may on notice to Purchaser elect to pay one or
more of all of said items accrued to the date
hereinabove fixed for apportionment directly to the
person or entity entitled thereto, and to the extent
Seller so elects, such item shall not be apportioned
hereunder, and Seller's obligation to pay such item
directly in such case shall survive the Closing.
(v) Purchaser shall be responsible for the
payment of (A) all Tenant Inducement Costs (as
hereinafter defined) and leasing commissions which
become due and payable (whether before or after
Closing) (1) as a result of any renewals or
expansions of existing Leases, which are approved or
deemed approved in accordance with Section 5.4
hereof, between the Effective Date and the date of
Closing, and (2) under any new Leases, approved or
deemed approved in accordance with Section 5.4
hereof, entered into between the Effective Date and
the date of Closing, (B) all Tenant Inducement Costs
which become due and payable from and after the date
of Closing pursuant to the Leases and any new
Lease(s) entered into after the Effective Date, which
are approved or deemed approved pursuant to Section
5.4(d) and (C) leasing commissions which become due
and payable from and after the date of Closing but
only to the extent payable pursuant to commission
agreements referenced on Exhibit G (except as
expressly provided in Section 5.4(d). 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 reimburse Seller therefor
at Closing. 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, lease buyout
costs, and moving, design and refurbishment
allowances. The term "Tenant Inducement Costs" shall
not include loss of income resulting from any free
rental period, it being agreed that Seller shall bear
the loss resulting from any free rental period until
the date of Closing and that Purchaser shall bear
such
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loss from and after the date of Closing.
Nothwithstanding the foregoing, Seller shall be
responsible for all Tenant Inducement Costs which
become due and payable until the date of Closing
pursuant to the express terms and provisions of any
Leases in existence as of the Effective Date except
that Purchaser shall reimburse Seller for the tenant
improvement allowance provided to Twinstown in the
amount of $45,000.
(vi) Unpaid and delinquent rent collected by
Seller and Purchaser after the date of Closing shall
be delivered as follows: (a) if Seller collects any
unpaid or delinquent rent for the Property, Seller
shall, within fifteen (15) days after the receipt
thereof, deliver to Purchaser any such rent which
Purchaser is entitled to hereunder relating to the
date of Closing and any period thereafter, and (b) if
Purchaser collects any unpaid or delinquent rent from
the Property, Purchaser shall, within fifteen (15)
days after the receipt thereof, deliver to Seller any
such rent which Seller is entitled to hereunder
relating to the period prior to the date of Closing.
Seller and Purchaser agree that all rent received by
Seller or Purchaser after the date of Closing shall
be applied first to current rentals and then to
delinquent rentals, if any, in inverse order of
maturity. Purchaser will make a good faith effort
after Closing to collect all rents in the usual
course of Purchaser's operation of the Property, but
Purchaser will not be obligated to institute any
lawsuit or other collection procedures to collect
delinquent rents. In the event that there shall be
any rents or other charges under any Leases which,
although relating to a period prior to Closing, do
not become due and payable until after Closing or are
paid prior to Closing but are subject to adjustment
after Closing (such as reimbursements for real estate
taxes and year end common area expense reimbursements
and the like), then any rents or charges of such type
received by Purchaser or its agents or Seller or its
agents subsequent to Closing shall, to the extent
applicable to a period extending through the Closing,
be prorated between Seller and Purchaser as of
Closing and Seller's portion thereof shall be
remitted promptly to Seller by Purchaser.
(vii) With respect to percentage rents, upon
receipt by Purchaser, Purchaser shall furnish to
Seller copies of all sales reports received from
tenants relative thereto, including, without
limitation, all sales reports with respect to any
tenants whose lease years have expired as of the
Closing but whose sales reports were not available on
Closing and sales reports of any tenants whose lease
year expires after the Closing, and the amount of any
percentage rents, payable by any tenant in accordance
with such tenant's Lease. Purchaser shall promptly
pay to Seller a pro-rata portion of such percentage
rents based upon apportionment being made as of the
Closing, promptly after the date when such percentage
rents are received from the tenant.
(c) The provisions of this Section 4.4 shall survive
Closing.
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4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction (b) one-half (1/2) of any
escrow fee which may be charged by the Escrow Agent or Title Company and (c)
one-half (1/2) of any transfer tax, documentary stamp tax or similar tax which
becomes payable by reason of the transfer of the Property. Purchaser shall pay:
(t) the fees of any counsel representing Purchaser in connection with this
transaction; (u) the fee for the title examination and the Title Commitment and
the premium for the Owner's Policy of Title Insurance to be issued to Purchaser
by the Title Company at Closing; (v) the cost of the Survey; (w) the fees for
recording the deed conveying the Property to Purchaser; (x) one-half (1/2) of
any transfer tax, documentary stamp tax or similar tax which becomes payable by
reason of the transfer of the Property and (z) one-half (1/2) of any escrow fees
charged by the Escrow Agent or Title Company. All other costs and expenses
incident to this transaction and the closing thereof shall be paid by the party
incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be specifically waived in writing by
Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of
this Agreement, including but not limited to, those provided for in
Section 4.2.
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material
respects when made and as of the date of Closing (with appropriate
modifications permitted under this Agreement); provided, however, that,
notwithstanding the provisions of Section 4.2(h) above, this condition
shall not be satisfied if such modification(s) to Seller's
representations and warranties discloses that the net operating income
of the Property would decrease by a factor of more than ten percent
(10%) on an annualized basis excluding the effect of any Lease(s) which
have terminated pursuant to its terms and not as a result of Seller's
default thereunder. Notwithstanding that any representation may be
qualified as being "to the knowledge of Seller" or a similar
qualification, it shall be a condition precedent that the facts
underlying any representation be materially true and correct in all
material respects without qualification on the Closing Date and such
failure shall not have a material adverse effect on Purchaser.
(c) 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 date of Closing or any
failure to perform shall not have a material adverse effect on
Purchaser.
(f) Purchaser shall have received such Anchor Estoppels
and Tenant Estoppels (both as defined in Section 5.4(b) hereof) each
dated no earlier than September 17, 1997, as are in Seller's
possession, but in no event less than the following:
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(1) Anchor Estoppels from all of the Anchors
under their Leases and Operating Agreements (to the extent the
same are in full force and effect and not terminated)
indicating an absence of material defaults and otherwise in
material conformance with the applicable Lease previously
delivered to Purchaser; and
(2) Tenant Estoppels from any entities
controlled by "The Limited" and such other Tenants
whose aggregate net rental income accounts for 80% of
the net income of the Property (including the income
related to the Anchors and the Limited entities) each
indicating an absence of material defaults and
otherwise in material conformance with the applicable
Lease previously delivered to Purchaser; provided,
however, if Purchaser has not received the requisite
number of Tenant Estoppels by Closing, Seller shall
have the right, but not the obligation, to satisfy
this condition by delivering to Purchaser the
remaining Tenant Estoppels executed by Seller (the
"Seller Estoppel") to make up the requisite number of
Tenant Estoppels. Seller's obligations under any
Seller Estoppels shall survive the Closing for a
period of two hundred and seventy (270) days;
provided, however, no claim for a breach under any
Seller Estoppel may be made (a) if the breach in
question results from or is based on a condition,
state of facts or other matter which was known to
Purchaser prior to Closing, and (b) unless written
notice containing a description of the specific
nature of such breach shall have been given by
Purchaser to Seller prior to the expiration of said
two hundred and seventy (270) day period and an
action shall have been commenced by Purchaser against
Seller within three hundred (300) days of Closing.
Notwithstanding the forgoing, if, after the Closing,
Purchaser receives a Tenant Estoppel from a Tenant
for which Seller delivered a Seller Estoppel,
Seller's obligations under such Seller Estoppel shall
terminate except to the extent Seller's Estoppel
differs from such Tenant Estoppel.
(g) The Anchor Leases are in full force and effect at
Closing.
In the event any of the foregoing conditions are not fulfilled or specifically
waived in writing by Purchaser by Closing and Purchaser does not proceed to
Closing, Purchaser shall have the option, as its sole and exclusive remedy,
either to (i) terminate this Agreement and the Xxxxxxx Money shall be returned
to Purchaser, (ii) waive said condition(s) and proceed to Closing without
abatement to the Purchase Price, or (iii) if Seller failed to perform its
obligations under this Agreement in accordance with Sections 4.6(a) and (c)
above, to specifically enforce this Agreement without abatement of the Purchase
Price.
4.7 Conditions Precedent to Obligation of Seller. The obligation
of Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
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(a) Seller shall have received the Purchase Price as
adjusted pursuant to and payable in the manner provided for in this
Agreement.
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.3.
(c) All of the representations and warranties of
Purchaser contained in this Agreement shall be true and correct in all
material respects as of the date of Closing or such failure shall not
have a material adverse effect on Seller.
(d) 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 date of Closing or any
failure to perform shall not have a material adverse effect Seller.
In the event any of the foregoing conditions are not fulfilled or specifically
waived in writing by Seller by Closing and Seller does not proceed to Closing,
Seller shall have the option to terminate this Agreement and enforce such other
remedy, if applicable, as expressly provided in Section 6.1 hereof.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date:
(a) Organization and Authority. Seller has been duly
organized and is validly existing under the laws of the State of New
York. Seller has the full right and authority to enter into this
Agreement and, subject to the provisions of Section 10.6 hereof, to
transfer all of the Property to be conveyed by Seller pursuant hereto
and to consummate or cause to be consummated the transactions
contemplated herein to be made by Seller. The persons signing this
Agreement on behalf of Seller are authorized to do so.
(b) Pending Actions. To Seller's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding threatened or pending against the Seller,
the Property or the transaction contemplated by this Agreement, which,
if adversely determined, could individually or in the aggregate have a
material adverse effect on title to the Property or any portion thereof
or which could in any material way interfere with the consummation by
Seller of the transaction contemplated by this Agreement or which would
otherwise materially and adversely affect the Property.
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(c) Leases.
(1) Seller is the lessor or landlord or the
successor lessor or landlord under the Leases. Except as set
forth in the Lease Schedule, to Seller's knowledge, (i) there
are no other leases or occupancy agreements to which Seller is
a party affecting the Property, (ii) such Leases are in full
force and effect, (iii) represent the entire agreement between
the parties, and (iv) have not been modified, amended or
extended except pursuant to instruments previously delivered
to Purchaser. Except as otherwise set forth in the Leases, to
Seller's knowledge, no presently effective rent concessions
have been given to any tenants and no rent has been paid in
advance by any tenants respecting a period subsequent to the
Closing. To Seller's knowledge, Seller has previously
delivered or made available to Purchaser true, correct and
complete copies of the Leases described on Exhibit B attached
hereto.
(2) Except as disclosed to Purchaser on Exhibit
H, no tenants have asserted in writing any claims, defenses or
offsets to rent accruing from and after the date of Closing.
To Seller's knowledge, except as disclosed to Purchaser on
Exhibit H, no material default, delinquency or breach exists
on the part of any tenant. There are no material defaults or
breaches on the part of the landlord under any Lease.
Notwithstanding anything to the contrary contained in this
Agreement, Seller does not represent or warrant that any
particular Lease will be in force or effect at Closing or that
the tenants under the Leases will have performed their
obligations thereunder. Except to the extent provided in
Section 4.6(f) above, the termination of any Lease prior to
Closing by reason of the tenant's default shall not affect the
obligations of Purchaser under this Agreement in any manner or
in any event entitle Purchaser to an abatement of or credit
against the Purchase Price or give rise to any other claim on
the part of Purchaser, other than the right to terminate this
Agreement as expressly provided in Section 4.6 above.
(d) Lease Brokerage. To Seller's knowledge, there are no
lease brokerage agreements, leasing commission agreements or other
agreements providing for payments of any amounts for leasing activities
or procuring tenants with respect to the Property other than as
disclosed in Exhibit G.
(e) No Violations. To Seller's knowledge, Seller has not
received prior to the Effective Date any written notification from any
governmental or public authority (i) that the Property is in violation
of any applicable fire, health, building, use, occupancy or zoning laws
where such violation remains outstanding and, if unaddressed, would
have a material adverse effect on the use of the Property as currently
owned and operated or (ii) that any work is required to be done upon or
in connection with the Property, where such work remains outstanding
and, if unaddressed, would have a material adverse effect on the use of
the Property as currently owned and operated.
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(f) Taxes and Assessments. True and complete copies of
the most recent real estate tax bills for the Property have been
delivered to Purchaser. Except as disclosed to Purchaser in writing, no
unpaid special assessments have been levied against the Property nor,
to the knowledge of Seller, are there any proposed special assessments
against the Property presently pending or threatened.
(g) Condemnation, Etc. To Seller's knowledge, no
condemnation proceedings relating to the Property are pending or
threatened.
(h) Insurance. To Seller's knowledge, Seller has not
received any written notice from any insurance company or board of fire
underwriters of any defects or inadequacies in or on the Property or
any part or component thereof that would materially and adversely
affect the insurability of the Property or cause any material increase
in the premiums for insurance for the Property that have not been cured
or repaired.
(i) Environmental Matters. Except as set forth in any
environmental assessment reports in Seller's possession, disclosed to
Purchaser and identified in Exhibit I (collectively, "Seller's
Environmental Reports"), to Seller's knowledge, Seller has received no
written notification that any governmental or quasi-governmental
authority has determined that there are any violations of environmental
statutes, ordinances or regulations affecting the Property. As used
herein, "Hazardous Substances" means all hazardous or toxic materials,
substances, pollutants, contaminants, or wastes currently identified as
a hazardous substance or waste in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (commonly known as
"CERCLA"), as amended, the Superfund Amendments and Reauthorization Act
(commonly known as "XXXX"), the Resource Conservation and Recovery Act
(commonly known as "RCRA"), or any other federal, state or local
legislation or ordinances applicable to the Property.
(j) Agreements. Seller has entered into no agreements
with governmental authorities, agencies, quasi-governmental entities,
or utility companies which affect the Property or, upon closing, would
affect Purchaser or the Property except for month-to-month agreements
for utilities.
5.2 Knowledge Defined. References to the "knowledge" of Seller
shall refer only to the actual knowledge of the Designated Employees (as
hereinafter defined) of ERE Yarmouth, Seller's asset manager, and shall not be
construed, by imputation or otherwise, to refer to the knowledge of Seller, ERE
Yarmouth or any affiliate of either of them, to any property manager, or to any
other officer, agent, manager, representative or employee of Seller or ERE
Yarmouth or any affiliate thereof or to impose upon such Designated Employees
any duty to investigate the matter to which such actual knowledge, or the
absence thereof, pertains. As used herein, the term "Designated Employees" shall
refer to M. Xxxxxxx Xxxxx, who has consulted with Xxxxxx Xxxxxxx, the property
manager.
5.3 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 5.1 as updated by
the certificate of Seller to be delivered
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to Purchaser at Closing in accordance with Section 4.2(h) hereof and the terms
contained in any Seller Estoppel delivered to Purchaser, shall survive Closing
for a period of one hundred eighty (180) days. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable (a) if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Purchaser prior to Closing, (b) unless the valid
claims for all such breaches collectively aggregate more than Two Hundred Fifty
Thousand Dollars ($250,000), in which event the full amount of such claims shall
be actionable, and (c) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of said one hundred eight (180) day period (or such
other period specifically provided for herein) and an action shall have been
commenced by Purchaser against Seller within two hundred ten (210) days of
Closing.
5.4 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable
efforts to operate and maintain the Property in a manner generally
consistent with the manner in which Seller has operated and maintained
the Property prior to the date hereof.
(b) Seller shall use commercially reasonable efforts (but
without obligation to incur any cost or expense) to obtain and deliver
to Purchaser prior to Closing, a written estoppel certificate in the
form of Exhibit E attached hereto and made a part hereof signed by each
tenant occupying space in the Improvements with such modifications as
are necessary to comport with the specific requirements of each Lease
as requested by the Tenants thereunder. The signed certificates are
referred to herein as the "Tenant Estoppels".
(c) Seller shall use commercially reasonable efforts (but
without obligation to incur any cost or expense) to obtain and deliver
to Purchaser prior to Closing a written estoppel certificate in the
form of Exhibit F attached hereto and made a part hereof signed by each
of the Anchors with such modifications as are necessary to comport with
the specific requirements of each Anchor Lease as requested by any
Anchor thereunder. The signed certificates are referred to herein as
the "Anchor Estoppels".
(d) A copy of any renewal or expansion of an existing
Lease or of any new Lease with a new or renewal term exceeding six (6)
months (collectively "Long Term Lease") which Seller wishes to execute
between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify
Seller in writing within ten (10) days after its receipt thereof of
either its approval or disapproval, including all Tenant Inducement
Costs and leasing commissions to be incurred in connection therewith.
In the event Purchaser informs Seller that Purchaser does not approve
the renewal or expansion of the existing Long Term Lease or the new
Long Term Lease (which approval shall not be unreasonably withheld if
the terms of such Long Term Lease, in Purchaser's reasonable judgement,
are acceptable to Purchaser), Seller shall not enter into same. In the
event Purchaser fails to notify Seller in writing of
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its approval or disapproval within the ten (10) day time period for
such purpose set forth above, such failure shall be deemed the approval
by Purchaser. At Closing, Purchaser shall reimburse Seller for any
Tenant Inducement Costs, leasing commissions or other expenses,
including legal fees, incurred by Seller pursuant to a renewal, an
expansion or a new Long Term Lease approved (or deemed approved) by
Purchaser. Seller shall have the unrestricted right to extend the term
of any existing Lease by no more than six (6) months or to enter into
any new Leases with terms less than six (6) months so long as Seller
remains fully responsible for all Tenant Inducement Costs and leasing
commissions associated with such non-Long Term Leases, including
without limitation such Tenant Inducement Costs and leasing commissions
which may become due after the Closing with respect to such non-Long
Term Leases. Purchaser agrees to provide copies of all such non-Long
Term Leases to Seller promptly after executing the same.
5.5 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of ERISA.
(b) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out
Purchaser's obligations hereunder, and all requisite action necessary
to authorize Purchaser to enter into this Agreement and to carry out
its obligations hereunder have been, or by the Closing will have been,
taken. The person signing this Agreement on behalf of Purchaser is
authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending
against Purchaser which, if adversely determined, could individually or
in the aggregate materially interfere with the consummation of the
transaction contemplated by this Agreement.
5.6 Survival of Purchaser's Representations and Warranties. The
representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation. All other representations and warranties of Purchaser shall survive
Closing for one hundred eighty (180) days.
5.7 Covenants of Purchaser. Purchaser hereby covenants with Seller
that Purchaser shall, in connection with its investigation of the Property
during the Inspection Period, inspect the Property for the presence of Hazardous
Substances (as defined in Section 5.1(i) hereof), and shall furnish to Seller
copies of any reports received by Purchaser in connection with any such
inspection. Purchaser hereby assumes full responsibility for such inspections
and, except for claims based on representations or warranties contained in
Section 5.1(i), irrevocably waives any claim against Seller arising from the
presence of Hazardous Substances on the Property. Purchaser shall also furnish
to Seller copies of any other reports received by Purchaser relating to any
other inspections of the Property conducted on Purchaser's behalf, if any
(including, specifically, without limitation, any reports analyzing compliance
of the Property with the
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provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ss.12101,
et seq., if applicable).
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser defaults for any reason
other than Seller's default or the permitted termination of this Agreement by
either Seller or Purchaser as herein expressly provided, Seller shall be
entitled, as its sole remedy, to terminate this Agreement and receive the
Xxxxxxx Money as liquidated damages for the breach of this Agreement, it being
agreed between the parties hereto that the actual damages to Seller in the event
of such breach are impractical to ascertain and the amount of the Xxxxxxx Money
is a reasonable estimate thereof.
6.2 Default by Seller. In the event that Seller fails to
consummate this Agreement for any reason other than Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Xxxxxxx Money, which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligations under
this Agreement without abatement of the Purchase Price. Purchaser expressly
waives its rights to seek damages in the event of Seller's default hereunder.
Purchaser shall be deemed to have elected to terminate this Agreement and
receive back the Xxxxxxx Money if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Property is located, on or before sixty (60) days following
the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property
or any portion thereof which is not "major" (as hereinafter defined), this
Agreement shall remain in full force and effect provided Seller performs any
necessary repairs or, at Seller's option, provided such insurance is sufficient
to effectuate repairs completely, Seller assigns to Purchaser all of Seller's
right, title and interest to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards relating to
the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly, and if such repairs are not completed by the Closing Date, Purchaser
shall have the option of either (i) extending the Closing Date by a reasonable
time in order to allow for the completion of such repairs, or (ii) receiving a
credit against the Purchase Price in an amount necessary to complete such
repairs, which amount shall be determined by a contractor jointly selected by
Purchaser and Seller. If Seller elects to assign a casualty claim to Purchaser,
the Purchase Price shall be reduced by an amount equal to the deductible amount
under Seller's
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insurance policy. Upon Closing, full risk of loss with respect to the Property
shall pass to Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage,
Purchaser may terminate this Agreement by written notice to Seller, in which
event the Xxxxxxx Money shall be returned to Purchaser. If Purchaser does not
elect to terminate this Agreement within ten (10) business days after Seller
sends Purchaser written notice of the occurrence of major loss or damage, then
Seller and Purchaser shall be deemed to have elected to proceed with Closing, in
which event Seller shall, at Seller's option, either (a) perform any necessary
repairs, or (b) assign to Purchaser all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time in order to allow for the completion of such
repairs. If Seller elects to assign a casualty claim to Purchaser, the Purchase
Price shall be reduced by an amount equal to the deductible amount under
Seller's insurance policy. Upon Closing, full risk of loss with respect to the
Property shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of Sections
7.1 and 7.2, "major" loss or damage refers to the following: (i) loss or damage
to the Property or any portion thereof such that the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than One Million Dollars ($1,000,000.00); (ii) any loss due
to a condemnation which permanently and materially impairs the current use of
the Property; (iii) any loss which allows an Anchor(s) or Tenant(s) whose
combined rent is more than ten percent (10%) of the aggregate net income of the
Property to terminate their Lease(s) or Operating Agreement(s), as applicable.
Any related abatement of rental shall be subject to assignment of rent loss
insurance proceeds. If Purchaser does not give notice to Seller of Purchaser's
reasons for disapproving an architect within five (5) business days after
receipt of notice of the proposed architect, Purchaser shall be deemed to have
approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. Each party represents to the other that
there has been no broker or finder engaged in connection with the sale of the
Property other than The Wyndam Group, Inc. (the "Broker"). Purchaser agrees to
pay any fee payable to Broker pursuant to a separate agreement between Purchaser
and Broker. Each party agrees that should any claim be made for brokerage
commissions or finder's fees by any broker or finder other than the Broker by,
through or on account of any acts of said party or its representatives, said
party will indemnify and hold the other party free and harmless from and against
any and all loss, liability, cost,
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damage and expense in connection therewith. The provisions of this paragraph
shall survive Closing.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein
(including any documents referenced or described in the Exhibits attached
hereto), Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions, Purchaser acknowledges and agrees that
(a) any environmental or other report with respect to the Property which is
delivered by Seller to Purchaser shall be for general informational purposes
only, (b) Purchaser shall not have any right to rely on any such report
delivered by Seller to Purchaser, but rather will rely on its own inspections
and investigations of the Property and any reports commissioned by Purchaser
with respect thereto, and (c) neither Seller, any affiliate of Seller nor the
person or entity which prepared any such report delivered by Seller to Purchaser
shall have any liability to Purchaser for any inaccuracy in or omission from any
such report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT 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 (OTHER THAN SELLER'S LIMITED WARRANTY OF
TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT
PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY
WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY
DOCUMENTS 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 UPON 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 SELLER IS NOT LIABLE FOR OR
BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING
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TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER 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 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 INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER 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, AND EXCEPT AS OTHERWISE PROVIDED HEREIN,
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
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND
SELLER'S PARTNERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF
ACTION (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 (AND SELLER'S PARTNERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) 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. PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL
OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE
REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL
BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property takes
into account that the Property is being
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sold subject to the provisions of this Article IX. Seller and Purchaser agree
that the provisions of this Article IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold
in strictest confidence all data and information obtained with respect to Seller
or its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to the employees, consultants, accountants and attorneys of
Purchaser provided that such persons agree in writing to treat such data and
information confidentially, and may disclose the content as may be required in
connection with any suit or proceeding, by law, or in connection with the
financing of the Property, it being understood, however, that Purchaser's
obligations hereunder are not conditioned upon Purchaser obtaining financing. In
the event this Agreement is terminated or Purchaser fails to perform hereunder,
Purchaser shall promptly return to Seller any statements, documents, schedules,
exhibits or other written information obtained from Seller in connection with
this Agreement or the transaction contemplated herein. It is understood and
agreed that, with respect to any provision of this Agreement which refers to the
termination of this Agreement and the return of the Xxxxxxx Money to Purchaser,
such Xxxxxxx Money shall not be returned to Purchaser unless and until Purchaser
has fulfilled its obligation to return to Seller the materials described in the
preceding sentence. In the event of a breach or threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach. The provisions
of this Section 10.1 shall survive Closing.
10.2 Public Disclosure. Prior to Closing, any release to the public
of information with respect to the sale contemplated herein or any matters set
forth in this Agreement will be made only in the form approved by Purchaser and
Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those which are herein specifically stated to survive
Closing.
10.4 Assignment. Purchaser may not assign its rights under this
Agreement without first obtaining Seller's written approval, which approval may
be given or withheld in Seller's sole discretion; provided, however, Seller
shall permit Purchaser to assign its rights under this Agreement under the
following conditions: (i) Purchaser remains liable under the terms of this
Agreement, (ii) Xxxxx Xxxxxxxxxxx owns an interest in an entity which has an
interest in such
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assignee, and (iii) any such assignee complies with the requirements of the
following sentence. Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's sale of the Property to such person or entity would, in
the reasonable opinion of Seller's ERISA advisor, create or otherwise cause a
"prohibited transaction" under ERISA. In the event Purchaser assigns this
Agreement or transfers any ownership interest in Purchaser, and such assignment
or transfer would make the consummation of the transaction hereunder a
"prohibited transaction" under ERISA and necessitate the termination of this
Agreement then, notwithstanding any contrary provision which may be contained
herein, Seller shall have the right to pursue any remedy available at law or in
equity as a result of such assignment or transfer. Any transfer, directly or
indirectly, of any stock, partnership interest or other ownership interest in
Purchaser without Seller's written approval, which approval may be given or
withheld in Seller's sole discretion, shall constitute a default by Purchaser
under this Agreement.
10.5 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller:
c/o ERE Yarmouth
0000-X Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: M. Xxxxxxx Xxxxx
TELECOPY: (000) 000-0000
with a copy to: ERE Yarmouth
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxxxx
TELECOPY: (000) 000-0000
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and to: The Equitable Life Assurance Society of the
United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Corporate and Investments -- Law
Department
TELECOPY: (000) 000-0000
and to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxx X. Xxxxxxx, Esq. and Xxxxx X.
Xxxxxx, Esq.
TELECOPY: (000) 000-0000
If to Purchaser: Talisman Brookdale L.L.C.
c/o The Xxxxxxxxxxx Companies
0000 Xxx Xxxx Xxxxxx
Xxxxx 000X
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxxxx
TELECOPY: 000-000-0000
with a copy to: Xxxxxxxxx Xxxxxxx Xxxxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
TELECOPY: 000-000-0000
10.6 Binding Effect. This Agreement shall not be binding in any way
upon Seller unless and until (a) Seller shall execute and deliver the same to
Purchaser, (b) each stage of Seller's investment approval process has approved
this transaction, and (c) Seller's Investment Committee has thereafter given its
written approval thereof. If Seller has not given Purchaser written notice (the
"Approval Notice") of such approvals on or before September 17, 1997 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the Xxxxxxx Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor, ERE
Yarmouth shall each have the right, in its unfettered discretion, to disapprove
the transaction contemplated by this Agreement for any reason whatsoever,
without obligation thereafter to proceed to the next stage
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of Seller's investment approval process. Seller's approval of this Agreement
shall be evidenced only by both Seller's execution of this Agreement and
Seller's sending of the Approval Notice to Purchaser prior to the Approval
Deadline and, accordingly, Purchaser acknowledges and agrees that Purchaser
cannot and will not rely upon any other statement or action of Seller or its
representatives as evidence of Seller's approval of this Agreement or the
subject matter hereof.
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each
and every tenant of the Property under a Lease thereof a signed statement
acknowledging Purchaser's receipt and responsibility for each tenant's security
deposit (to the extent delivered by Seller to Purchaser at Closing), if any, all
in compliance with and pursuant to the applicable provisions of applicable law.
The provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10.12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Agreement.
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10.14 Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
10.15 Applicable Law. This Agreement is performable in the state in
which the Property is located and shall in all respects be governed by, and
construed in accordance with, the substantive federal laws of the United States
and the laws of such state. Seller and Purchaser hereby irrevocably submit to
the jurisdiction of any state or federal court sitting in the state in which the
Property is located in any action or proceeding arising out of or relating to
this Agreement and hereby irrevocably agree that all claims in respect of such
action or proceeding shall be heard and determined in a state or federal court
sitting in the state in which the Property is located. Purchaser and Seller
agree that the provisions of this section 10.15 shall survive the Closing of the
transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A - Legal Description of the Land
(b) Exhibit B - Lease Schedule
(c) Exhibit C - Intentionally Deleted
(d) Exhibit D - Service Contracts Schedule
(e) Exhibit E - Tenant Estoppel Form
(f) Exhibit F - Anchor Estoppel Form
(g) Exhibit G - Leasing Commission Agreements
(h) Exhibit H - Notice of Tenant Defaults
(i) Exhibit I - Seller's Environmental Reports
10.18 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
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10.19 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of the following Sections of this
Agreement shall survive Closing and shall not be merged into the execution and
delivery of the Deed: 3.1; 4.2(j); 4.4; 5.3; 5.6; 8.1; 9.3; 10.1; 10.8; 10.12;
10.15; 10.21; and 10.22.
10.22 Attorneys' Fees. If there is any legal action or proceeding
between Seller, on the one hand, and Purchaser, on the other, arising from or
based on this Agreement, the unsuccessful party to such action or proceeding
shall pay to the prevailing party all costs and expenses, including reasonable
attorneys' fees, incurred by such prevailing party in or in connection with such
action or proceeding, any appeal in connection therewith, and the enforcement of
any relief granted therein. If such prevailing party recovers a judgment in any
such action, proceeding or appeal, such costs, expenses and attorneys' fees
shall be included in and as a part of such judgment. This Paragraph shall
survive the Closing or any termination of this Agreement.
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31
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES, a New York corporation
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM Managers Corp.,
its Managing General Partner
By:
----------------------------
Name:
---------------------------
Title:
-------------------------
PURCHASER:
TALISMAN BROOKDALE, L.L.C., a Delaware
limited liability company
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
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32
Exhibit A
LEGAL DESCRIPTION OF THE LAND
[See Attached]
33
Exhibit B
LEASE SCHEDULE
[See Attached]
34
Exhibit C
INTENTIONALLY DELETED
35
Exhibit D
SERVICE CONTRACTS SCHEDULE
[See Attached]
36
Exhibit E
TENANT ESTOPPEL FORM
TENANT:
--------------------
TO:
--------------------
RE: XXXXXXXXX XXXX, XXXXXXXXXXX, XXXXXXXXX (THE "CENTER")
THIS IS TO CERTIFY THAT:
1. The undersigned is the "Tenant" under that certain Lease, dated
________________, 19__ (the "Lease") between Tenant and THE EQUITABLE
LIFE ASSURANCE SOCIETY OF THE UNITED STATES and EML ASSOCIATES, as
tenants in common, as successor to ________________________
("Landlord"), covering those certain premises commonly known as Space
No. ___ consisting of ____ square feet, in the Brookdale Mall,
Minneapolis, Minnesota (the "Premises").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect, except as indicated below,
(insert dates of all modifications, amendments, supplements or
assignments; if none, state "none"), and the Lease is valid and in full
force and effect on the date hereof.
--------------------------
--------------------------
--------------------------
3. The Lease constitutes the entire agreement between Landlord and Tenant,
and Tenant has no other agreements of any kind with Landlord except as
stated in the Lease or in any amendments thereto specified above.
4. Tenant has accepted and now occupies the Premises. The Lease term
commenced on _____________, 19__ and will expire on __________________.
Tenant has options to renew the initial term of the Lease, each for a
period of ____ years (if none, state "none").
5. Tenant has paid rent for the Premises for a period up to and including
_________________, 1997. The fixed minimum rent payable by Tenant
presently is $_____________ per month. No such rent has been-paid more
than one (1) month in advance of its due date except as indicated below
(if none, state "none"). Tenant's security deposit is $______________.
Tenant has paid in full all other sums presently due and payable under
the Lease.
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37
6. No event has occurred and no condition exists which, with the giving of
notice or the lapse of time or both, will constitute a default under
the Lease on the part of the Tenant.
To the best knowledge of Tenant, no event has occurred and no condition
exist which, with the giving of notice or the lapse of time or both,
will constitute a default under the Lease on the part of Landlord, and
Tenant has no existing defenses or offsets against the enforcement of
the Lease by Landlord.
7. All conditions under the Lease to be performed by Landlord have been
satisfied. All required contributions by Landlord to Tenant on account
of Tenant's improvements have been received by Tenant.
8. Tenant has no right or option whatsoever to purchase or otherwise
acquire the Premises or any portion whereof, except as set forth in the
Lease.
9. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant and realizes that Landlord is proposing
to sell the Center and any proposed buyer and its lender shall be
entitled to rely upon this certification by Tenant.
Dated this __ day of _______________, 1997.
TENANT:
---------------------
By:
------------------
Its:
-----------------
00
Xxxxxxx X
XXXXXX XXXXXXXX XXXX
XXXXXX:
----------------------
TO:
----------------------
RE: XXXXXXXXX XXXX, XXXXXXXXXXX, XXXXXXXXX (THE "CENTER")
THIS IS TO CERTIFY THAT:
1. The undersigned is the "Tenant" under that certain Lease, dated
_____________________, 19 (the "Lease") between Tenant and THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES and EML
ASSOCIATES, as tenants in common, as successor to _____________________
("Landlord"), covering those certain premises commonly known as Space
No. ___ consisting of _____ square feet, in the Brookdale Mall,
Minneapolis, Minnesota (the "Premises").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect, except as indicated below,
(insert dates of all modifications, amendments, supplements or
assignments; if none, state "none"), and the Lease is valid and in full
force and effect on the date hereof.
--------------------------------
--------------------------------
--------------------------------
3. The Lease constitutes the entire agreement between Landlord and Tenant,
and Tenant has no other agreements of any kind with Landlord except as
stated in the Lease or in any amendments thereto specified above.
4. Tenant has accepted and now occupies the Premises. The Lease term
commenced on _________________, 19__ and will expire on
_________________. Tenant has ____ options to renew the initial term of
the Lease, each for a period of ____ years (if none, state "none").
5. Tenant has paid rent for the Premises for a period up to and including
___________, 1997. The fixed minimum rent payable by Tenant presently
is $_____________ per month. No such rent has been-paid more than one
(1) month in advance of its due date except as indicated below (if
none, state "none"). Tenant's security deposit is $________________.
Tenant has paid in full all other sums presently due and payable under
the Lease.
6. No event has occurred and no condition exists which, with the giving of
notice or the lapse of time or both, will constitute a default under
the Lease on the part of the Tenant. To the best knowledge of Tenant,
no event has occurred and no condition exist which, with the
39
giving of notice or the lapse of time or both, will constitute a
default under the Lease on the part of Landlord, and Tenant has no
existing defenses or offsets against the enforcement of the Lease by
Landlord.
7. All conditions under the Lease to be performed by Landlord have been
satisfied. All required contributions by Landlord to Tenant on account
of Tenant's improvements have been received by Tenant.
8. Tenant has no right or option whatsoever to purchase or otherwise
acquire the Premises or any portion whereof, except as set forth in the
Lease.
9. [TO BE MODIFIED TO CONFORM WITH EACH DECLARATION AND/OR OPERATING
AGREEMENT IN EFFECT] The undersigned is a party to that certain
[Declaration of Restrictions and Grant of Easements and/or Operating
Agreement] executed as of ______________ __, 19__, by
_______________________, as Declarant (the "Declaration") and Tenant.
The Declaration affects a portion of the Center.
10. The Declaration is in full force and effect except as set forth below,
has not been amended or any respect.
----------------------------------
----------------------------------
----------------------------------
11. To Tenant's knowledge, no notice of default has been given to the
Declarant, or to any successor in interest to the Declarant, which
remains uncared. To Tenant's knowledge, _____________________ is the
present record owner of the real property affected by the Declaration,
is not in default under the Declaration and no event has occurred
which, with the giving of notice or passage of time, or both, would
constitute such a default.
12. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant and realizes that Landlord is proposing
to sell the Center and any proposed buyer and its lender shall be
entitled to rely upon this certification by Tenant. Moreover, Tenant
hereby consents to the sale of the Center to such buyer and agrees that
upon such sale, Landlord shall be relieved from all of its obligations
arising under the Lease and the Declaration from and after the date of
such sale provided such proposed buyer assumes all of such obligations.
Dated this day of , 1997.
----- --------------------
TENANT:
-----------------------------
By:
-------------------------
Its:
-------------------------
40
Exhibit G
Leasing Commission Agreements
None
41
Exhibit H
Notice of Tenant Defaults
[See Attached]
42
Exhibit I
Seller's Environmental Reports
1. Phase I Environmental Site Assessment, prepared by Xxxxx Intertec,
January 15, 1977.
2. Asbestos Testing, prepared by Hygeia, Inc., October 15, 1986.
43
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made as of the 17th day of October, 1997, by and between THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation ("Equitable"),
and EML ASSOCIATES, a New York general partnership ("EML") (Equitable and EML
together called "Seller"), having its home office at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and TALISMAN BROOKDALE L.L.C., a Delaware
limited liability company ("Purchaser"), having an office c/o The Xxxxxxxxxxx
Companies, at 0000 Xxx Xxxx Xxxxxx, Xxxxx 000X, Xxxxx Xxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and
Sale Agreement dated as of September 2, 1997, as amended by those certain letter
agreements dated September 15 and 17, 1997 (collectively, the "Agreement"),
whereby Seller agreed to sell and Purchaser agreed to purchase the enclosed mall
building commonly known as "Brookdale Center" located in Henepin County,
Minnesota and further described in the Agreement (collectively, the "Property").
WHEREAS, the parties now desire to amend certain provisions contained
in the Agreement pursuant to the terms and provisions contained in this
Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Defined Terms. All terms not otherwise defined herein shall
have the same meaning ascribed to them in the Agreement.
2. Purchase Price. The Purchase Price shall be reduced by ONE
HUNDRED SEVENTY THOUSAND AND NO/100 DOLLARS ($170,000.00) and shall now be
TWENTY-FOUR MILLION EIGHT HUNDRED THIRTY THOUSAND AND NO/100 DOLLARS
($24,830,000.00).
3. Waiver of Environmental Termination. Purchaser has completed
its inspection of the Property pursuant to Section 3.1 of the Agreement and
hereby forever waives its right to terminate the Agreement in accordance with
Section 3.2 of the Agreement. Purchaser acknowledges and agrees that Seller
shall have no liability whatsoever regarding any matters disclosed in that
certain letter report dated September 25, 1997 from Xxxxx & Xxxxxx Technical
Services Incorporated
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44
addressed to Mr. Xxxxx Xxxxxxxxxxx of Talisman Companies, L.L.C. (the
"Environmental Letter"). In consideration for the reduction in the Purchase
Price as described in Section 2 above, Purchaser hereby agrees to indemnify,
defend and hold Seller free and harmless from and against any losses,
liabilities, claims, damages, costs or expenses (including, without limitation,
reasonable attorneys fees and expenses) incurred or suffered by Seller with
respect to the matters disclosed or addressed in the Environmental Letter,
including, without limitation, any such losses, liabilities, claims, damages,
costs or expenses arising out of Purchaser's remediation of any such matters.
The definition of Seller's Environmental Reports in the Agreement shall include
the Environmental Letter. The terms and provisions of this Section shall survive
the closing indefinitely.
4. Title and Survey. Subject to Seller's compliance with Item
Nos. 1, 2, 3 and 4 described in the letter dated September 30, 1997 (the "Title
Letter") from Xxxxx Xxxxxx of Xxxxxx Xxxxxx & Xxxxx, Seller's counsel, to
Purchaser, Purchaser hereby approves the status of the title to the Property as
contained in the Commitment for Title Insurance dated July 15, 1997 issued by
the Title Company as Case No. 43030 (the "Title Commitment") and the survey
delivered under cover letter dated October 8, 1997 and prepared by X.X. Xxxxxxx
& Associates, Inc. (the "Survey"), and all matters disclosed in the Title
Commitment and the Survey (other than the matters described in the Title Letter)
shall be Permitted Exceptions. Purchaser covenants to send Seller, its counsel,
and the Title Company a copy of the Survey within three (3) business days.
5. Extended Closing Date. Section 4.1 of the Agreement is hereby
deleted in its entirety and the following language is substituted in lieu
thereof:
"4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall be held at the offices of
Seller's counsel, Xxxxxx Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx, or Purchaser's lender if necessary, at 10:00
a.m. on a date mutually agreed to by Seller or Purchaser, but in no
event later than November 17, 1997. Purchaser shall deposit with Escrow
Agent an additional $100,000 Xxxxxx Money Deposit on or before November
22, 1997, time being of the essence. Purchaser shall have the right to
extend the date of Closing until December 2, 1997 by giving Seller
notice thereof on or before November 14, 1997, and depositing with
Escrow Agent, on the date such notice is given, an additional Xxxxxxx
Money deposit of $250,000. At Closing, Seller and Purchaser shall
perform the obligations set forth in, respectively, Section 4.2 and
Section 4.3, the performance of which obligations shall be concurrent
conditions."
6. Entire Agreement. The Agreement, together with this Amendment
and the Title Letter, contain the entire agreement between the parties
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter. No modification, waiver or amendment of the provisions of the
Agreement, as modified by this Amendment and the Title Letter, shall be
effective unless made in writing and signed by the parties hereto.
7. Counterparts. This Amendment may be executed in counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Amendment.
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45
8. Severability. If any provision of this Amendment is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Amendment shall nonetheless remain in full force and effect.
9. Agreement in Full Force and Effect. Except as amended hereby,
all of the terms and provisions of the Agreement shall remain in full force and
effect.
10. Facsimile Transmissions. Signed copies of this Amendment
transmitted via facsimile shall be deemed original provided each party shall be
obligated to send original executed copies of this Amendment to the other party
within three (3) days from the date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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46
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first written above.
SELLER:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES, a New York corporation
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM Managers Corp.,
its Managing General Partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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47
PURCHASER:
TALISMAN BROOKDALE, LLC, a Delaware limited
liability company
By: BZA Brookdale Mall Corp, a managing
member
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
By: CS Brookdale Realty Corp., a managing
member
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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48
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made as of the 14th day of November, 1997, by and between THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation ("Equitable"),
and EML ASSOCIATES, a New York general partnership ("EML") (Equitable and EML
together called "Seller"), and TALISMAN BROOKDALE L.L.C., a Delaware limited
liability company ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and
Sale Agreement dated as of September 2, 1997, as amended by those certain letter
agreements dated September 15 and 17, 1997 and that certain First Amendment to
Purchase Agreement dated October 17, 1997 (collectively, the "Agreement"),
whereby Seller agreed to sell and Purchaser agreed to purchase the enclosed mall
building commonly known as "Brookdale Center" located in Henepin County,
Minnesota and further described in the Agreement (collectively, the "Property").
WHEREAS, the parties now desire to amend certain provisions contained
in the Agreement pursuant to the terms and provisions contained in this
Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Defined Terms. All terms not otherwise defined herein shall
have the same meaning ascribed to them in the Agreement.
2. Extended Closing Date. Section 4.1 of the Agreement is hereby
deleted in its entirety and the following language is substituted in lieu
thereof:
"4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall be held at the offices of
Seller's counsel, Xxxxxx Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx, or Purchaser's lender if necessary, at 10:00
a.m. on November 25, 1997 (unless Purchaser and Seller agree
otherwise); provided, however, Seller shall have the unilateral right
to extend the date of Closing until December 2, 1997 by giving
Purchaser notice thereof on or before November 21, 1997. Purchaser has
deposited with Escrow Agent an additional $100,000 Xxxxxx Money
Deposit. At Closing, Seller and
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49
Purchaser shall perform the obligations set forth in, respectively,
Section 4.2 and Section 4.3, the performance of which obligations shall
be concurrent conditions."
6. Entire Agreement. The Agreement, together with this Amendment,
contain the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter. No
modification, waiver or amendment of the provisions of the Agreement, as
modified by this Amendment, shall be effective unless made in writing and signed
by the parties hereto.
7. Counterparts. This Amendment may be executed in counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Amendment.
8. Severability. If any provision of this Amendment is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Amendment shall nonetheless remain in full force and effect.
9. Agreement in Full Force and Effect. Except as amended hereby,
all of the terms and provisions of the Agreement shall remain in full force and
effect.
10. Facsimile Transmissions. Signed copies of this Amendment
transmitted via facsimile shall be deemed original provided each party shall be
obligated to send original executed copies of this Amendment to the other party
within three (3) days from the date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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50
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first written above.
SELLER:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES, a New York corporation
By:
------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM Managers Corp.,
its Managing General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
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51
PURCHASER:
TALISMAN BROOKDALE, LLC, a Delaware limited
liability company
By: BZA Brookdale Mall Corp, a managing
member
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By: CS Brookdale Realty Corp., a managing
member
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
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