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EXHIBIT 2.3
PURCHASE AND SALE AGREEMENT
BETWEEN
Century Plaza Company
an Alabama general partnership
and
Century Plaza L.L.C.,
a Delaware limited liability company
March 22, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE II Sale and Purchase
2.1 Purchase and Sale Contract . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III Title Insurance and Survey
3.1 Delivery of Title Commitment, Lien Searches and Survey . . . . . . . . . . . . 11
3.2 Title Defects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Purchaser's Options Upon Failure to Cure . . . . . . . . . . . . . . . . . . . 12
3.4 Reinsurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Defects After Inspection Period . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV Access
4.1 Inspection Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Inspection of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.4 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.5 Deleted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.6 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V Costs and Expenses
5.1 Title and Survey Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Escrow Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Other Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI Closing
6.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.2 Seller Closing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.3 Purchaser Closing Documents . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Joint Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII Prorations and Adjustments
7.1 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.2 Items to be Prorated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.3 Installment Payment of Assessments . . . . . . . . . . . . . . . . . . . . . . 20
7.4 Rent Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.5 Proration of Adjustable Tenant Charges . . . . . . . . . . . . . . . . . . . . 22
7.6 Proration of Sales Based Tenant Charges . . . . . . . . . . . . . . . . . . . 22
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7.7 Application of Rent Receipts . . . . . . . . . . . . . . . . . . . . . 22
7.8 Security and Utility Deposits . . . . . . . . . . . . . . . . . . . . 23
7.9 Collection of Rents . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.11 The Indemnification Buffer Does Not Apply . . . . . . . . . . . . . . 24
ARTICLE VIII Representations and Warranties
8.1 Seller's Representations and Warranties . . . . . . . . . . . . . . . 24
8.2 Purchaser Representations and Warranties . . . . . . . . . . . . . . . 31
ARTICLE IX Conditions to Closing
9.1 Conditions to Seller's Obligations . . . . . . . . . . . . . . . . . . 32
9.2 Conditions to Purchaser's Obligations . . . . . . . . . . . . . . . . 32
ARTICLE X Additional Covenants
10.1 Conduct of Business Pending Closing . . . . . . . . . . . . . . . . . 33
10.2 Supplemental Disclosure . . . . . . . . . . . . . . . . . . . . . . . 34
10.3 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . 34
10.4 Contract Party Consents . . . . . . . . . . . . . . . . . . . . . . . 35
10.5 Employment and Labor Matters . . . . . . . . . . . . . . . . . . . . . 35
10.6 Record Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.7 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.8 Assistance Following Closing . . . . . . . . . . . . . . . . . . . . . 35
10.9 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.10 Transfers to Seller . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XI Indemnification
11.1 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . 36
11.2 Indemnification by Purchaser . . . . . . . . . . . . . . . . . . . . . 36
11.3 Indemnification Procedure . . . . . . . . . . . . . . . . . . . . . . 37
11.4 Indemnification Procedure; Other Claims . . . . . . . . . . . . . . . 38
11.5 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.6 Indemnification Buffer . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE XII Condemnation and Destruction
12.1 Casualty or Condemnation in General . . . . . . . . . . . . . . . . . 38
12.2 Adjustment of Claims and Condemnation Proceedings . . . . . . . . . . 39
ARTICLE XIII Miscellaneous
13.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
13.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
13.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.4 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 41
13.7 Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . 41
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13.8 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.10 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.11 Headings; Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.12 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.14 Costs of Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.15 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XIV Xxxxxxx Money
14.1 Xxxxxxx Money Returned in Full to Purchaser . . . . . . . . . . . . . . . . . 42
14.2 Xxxxxxx Money Paid Over in Full to Seller . . . . . . . . . . . . . . . . . . 42
ARTICLE XV Tax Free Exchange
15.1 1031 Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is dated as of March 22, 1997, by
and between CENTURY PLAZA COMPANY, an Alabama general partnership ("Seller"),
having a mailing address of 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and
CENTURY PLAZA L.L.C., a Delaware limited liability company ("Purchaser"),
having a mailing address of 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000.
R E C I T A L S
WHEREAS, Seller is the owner of the that certain shopping center
known as Century Plaza located in the City of Birmingham, County of Jefferson,
State of Alabama; and
WHEREAS, Seller desires to sell to Purchaser substantially all of its
property, both real and personal, which is related to such mall, and Purchaser
desires to purchase such property, upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
Definitions
1.1 Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
"ADA" shall mean the Americans With Disabilities Act of 1990, as
amended.
"ADJUSTABLE TENANT CHARGES" shall mean common or mall area maintenance
(exterior and interior) charges, real estate taxes and assessments, property
insurance charges, water and sewer charges, and HVAC charges to the extent
denominated as such in the Leases and the DOA.
"ADVERTISING AND PROMOTIONAL CONTRIBUTIONS" shall mean any and all
dues, fees, or charges payable by Tenants pursuant to their leases to any
merchants association or media or advertising fund.
"AFFILIATE" shall mean a Person that directly or indirectly through
one or more intermediaries controls, is controlled by, or is under common
control with the Person specified.
"AGREEMENT" shall mean this Purchase and Sale Agreement, as amended or
modified from time to time hereafter in accordance with the terms hereof.
"ANCHOR" shall mean each Person identified in SCHEDULE 1.1-1.
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"APPLICABLE CLOSING FISCAL PERIOD" shall mean, with respect to any
item which is prorated under Article VII, the calendar year (or other fiscal
period for which such item is determined or assessed) during which the Closing
Date occurs.
"ASSIGNED RECEIVABLE" shall have the meaning set forth in Section
7.4(a).
"ASSUMED LIABILITIES" shall have the meaning set forth in Section
2.3(a).
"XXXXXX GROUND LEASE" shall mean that certain Lease Agreement dated
September 27, 1972 between Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, Xx., as
Trustees of the Xxxxxx X. Xxxxxx, Xx. Trust No. 4 U/T/A dated January 2, 1952,
as Lessor, and Xxxxxx X. Xxxxxx, Xx., as Lessee.
"XXXXXX PARCEL" shall mean that certain parcel of real estate
leased to Seller pursuant to the Xxxxxx Ground Lease.
"BOOKS AND RECORDS" shall mean all records, books of account and
papers of Seller which pertain to the construction, ownership and operations of
the Property, including without limitation, architect's drawings, blue prints
and as-built plans, maintenance logs, copies of warranties and guaranties,
licenses and permits, instruction books, employee manuals, records and
correspondence relating to insurance claims, copies of guarantees and
warranties, financial statements, operating budgets, paper and electronic media
copies of data and other information relating to the Property available from
personal computers including copies of all accounting records (in both paper
and electronic data, ASCII comma delimited format) required to properly compute
the prorations described in this Agreement, structural, mechanical,
geotechnical or other engineering studies, soil test reports, environmental
reports, feasibility studies, appraisals, ADA surveys or reports, OSHA asbestos
surveys, marketing studies, mall documents and compilations, lease summaries
and originals and/or copies of Leases, the DOA and the Contracts and
correspondence related thereto.
"CASUALTY" shall mean any damage to or destruction of the Property or
any portion thereof caused by fire or other casualty, whether or not insured.
"CLOSED RECEIVABLES" shall have the meaning set forth in Section
7.4(a).
"CLOSING" shall have the meaning set forth in Section 6.1.
"CLOSING DATE" shall have the meaning set forth in Section 6.1.
"CLOSING DOCUMENTS" shall mean the Seller Closing Documents and
Purchaser Closing Documents, collectively.
"CLOSING ESCROW AGREEMENT" shall mean the escrow agreement for deposit
of the Closing Documents by and among Seller, Buyer and Escrow Agent, in the
form of EXHIBIT C attached hereto.
"COLLECTION RECEIVABLES" shall have the meaning set forth in Section
7.4(d).
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"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"CONTRACT PARTY CONSENTS" shall have the meaning set forth in Section
10.4.
"CONTRACTS" shall mean the service, maintenance and other contracts
and concessions that are currently in effect and to which Seller is a party
respecting the use, maintenance, development, sale or operation of the Property
or any portion thereof (but excluding this Agreement, the Leases, and the
Permitted Exceptions) which are listed on SCHEDULE 8.1(h), together with any
additions thereto, modifications thereof or substitutions therefor hereafter
entered into in accordance with the provisions of this Agreement.
"DEFECT" shall mean any Lien, encumbrance, easement, agreement,
restriction, proceeding, lis pendens, notice, encroachment or exception
to title, or the lack of any coverage or endorsement referred to in the
definition of "Title Policy" hereinafter set forth which Purchaser will require
and which was not included in the Title Commitment, that in Purchaser's sole
opinion adversely affects the title to or use of the Property.
"DISAPPROVAL NOTICE" shall have the meaning set forth in Section 3.2.
"DOA" shall mean that certain Development and Operating Agreement
dated November 20, 1972 between Xxxxxx X. Xxxxxx, Xx., individually, Xxxxxx X.
Xxxxxx, Xx., Trustee and Xxxxx X. Xxxxxx, Trustee under Instrument of Trust
dated January 2, 1952 and known as "Xxxxxx X. Xxxxxx, Xx., Trust #4", the
predecessor-in-interest to Seller and Sears.
"XXXXXXX MONEY" shall have the meaning set forth in Section 2.2(a).
"XXXXXXX MONEY ESCROW" shall have the meaning set forth in Section
2.2(a).
"ESCROW AGENT" shall mean Land Title Company, 000 00xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, approved attorney or approved special counsel for
Chicago Title Insurance Company.
"ENVIRONMENTAL LAWS" shall mean all federal, state and local statutes,
ordinances, codes, rules, regulations, guidelines, orders and decrees
regulating, relating to or imposing liability or standards concerning or in
connection with Hazardous Materials, Underground Storage Tanks or the
protection of human health or the environment, as any of the same may be
amended from time to time, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et. seq., as amended by the Superfund Amendments and
Reauthorization Act or any equivalent state or local laws or ordinances; the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et
seq., as amended by the Hazardous and Solid Waste Amendments of 1984, or any
equivalent state or local laws or ordinances; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et. seq. or any
equivalent state or local laws or ordinances; the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.); the Emergency Planning
and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. Section 11001 et. seq. or
any equivalent state or local laws or ordinances; the Toxic Substance Control
Act ("TSCA"), 15 U.S.C. Section 2601 et. seq. or any equivalent state or local
laws or ordinances; the Atomic
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Energy Act, 42 U.S.C. Section 2011 et. seq., or any equivalent state or local
laws or ordinances; the Clean Water Act (the "Clean Water Act"), 33 U.S.C.
Section 1251 et. seq. or any equivalent state or local laws or ordinances; the
Clean Air Act (the "Clean Air Act"), 42 U.S.C. Section 7401 et seq. or any
equivalent state or local laws or ordinances; the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et seq. or any equivalent state or local laws
or ordinances.
"ESTOPPELS" shall mean the estoppel certificates to be obtained
pursuant to Section 10.3.
"EXECUTION DATE" shall mean the date of this Agreement, which shall be
the date that this Agreement, duly executed by Seller, is received and
counter-executed by Purchaser.
"FINANCIAL STATEMENTS" shall have the meaning set forth in Section
4.3.
"FIXED AND OTHER TENANT CHARGES" shall mean Rents other than
Adjustable Tenant Charges, Sales Based Tenant Charges and Advertising and
Promotional Contributions.
"FIXED AND OTHER TENANT CHARGE ARREARAGES" shall mean Fixed and Other
Tenant Charges due and payable prior to but unpaid as of the Closing Date.
"GAAS" shall mean Generally Accepted Auditing Standards as promulgated
by the Auditing Standards Division of the American Institute of Certified
Public Accountants from time to time.
"HAZARDOUS MATERIALS" shall mean any substance, material, waste, gas
or particulate matter which, as of the Closing Date (i) is classified as a
"hazardous substance" under CERCLA, or otherwise regulated by the United States
Government, the State of Alabama or any local governmental authority, or (ii)
the exposure to, or manufacture, possession, presence, use generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal,
remediation or handling of is prohibited, controlled or regulated by any
Environmental Law, or (iii) requires investigation or remediation under any
Environmental Law or common law, or (iv) deleted (v) deleted (vi) deleted.
Such term includes, without limitation, any material or substance which is, as
of the Closing Date (1) defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," "restricted hazardous
waste" or any like or similar term under any applicable Environmental Law; (2)
oil and petroleum products; (3) asbestos or asbestos-containing material as
defined in the regulations of the Occupational Safety and Health Administration
at 29 C.F.R. Section 1910.1001; (4) polychlorinated biphenyls; (5) radioactive
material; (6) designated as a "toxic pollutant" or a "hazardous substance"
pursuant to Sections 307 or 311 of the Clean Water Act; (7) defined as a
"hazardous waste" pursuant to Section 1004 of RCRA; (8) defined as a "hazardous
substance" pursuant to Section 101 of CERCLA; (9) designated as a "hazardous
chemical" substance or mixture pursuant to TSCA; (10) designated as an
"extremely hazardous" substance under Section 302 of EPCRA; (11) designated as
a "priority pollutant" or "hazardous air pollutant" pursuant to the Clean Air
Act; (12) designated as a hazardous chemical under the Occupational Safety and
Health Act; (13) radon gas or other radioactive source material, including
special nuclear material, and byproduct materials regulated under the Atomic
Energy Act, 42 U.S.C. Section 2011 et. seq.; (14) subject to regulation under
FIFRA; (15) natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable for fuel; or (16) infectious wastes or materials and
pathogenic bacteria or other pathogenic microbial agents.
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"IMPROVEMENTS" shall mean improvements, structures, fixtures,
facilities, installations, machinery and equipment, in, on, over or under the
Land, including but not limited to the foundations and footings therefor,
elevators, plumbing, air conditioning, heating, ventilating, mechanical,
electrical and utility systems (except to the extent owned by a utility
company), signs and light fixtures (except to the extent of trade fixtures and
other items of personalty and equipment owned by tenants under the Leases),
doors, windows, fences, parking lots, walks and walkways and each and every
other type of physical improvement to the extent owned, in whole or in part, by
Seller, located at, on or affixed to the Land, to the full extent such items
constitute or are or can or may be construed as realty under the laws of the
State of Alabama.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 11.3.
"INDEMNIFIED PURCHASER PERSONS" shall have the meaning set forth in
Section 11.1.
"INDEMNIFIED SELLER PERSONS" shall have the meaning set forth in
Section 11.2.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 11.3.
"INSPECTION PERIOD" shall have the meaning set forth in Section 4.1
hereof.
"LAND" shall mean those certain parcels of real estate described on
EXHIBIT A.
"LEASES" shall mean those leases, tenancies, concessions, licenses and
occupancy agreements currently in effect and to which Seller or any of its
predecessors in title is a party affecting or relating to the Property which
are listed on SCHEDULE 8.1(f), together with any additions thereto,
modifications thereof or substitutions therefor hereafter entered into in
accordance with the provisions of this Agreement.
"LIENS" shall mean any liens, security interests, judgments or charges
that encumber any part of the Land, the Improvements, or the Personal Property
owned by Seller, including, but not limited to, mortgages, deeds of trust,
mechanics, materialmen, judicial, tax or governmental liens, pledges, options,
rights of first offer or first refusal or other similar items.
"LIEN SEARCHES" shall mean a search report by an independent search
firm acceptable to Purchaser of the Secretary of State records, county recorder
records, local court records (federal, state, county and municipal) and such
other official public records with respect to the Property that would disclose
the presence of any Liens, bankruptcy proceedings, lis pendens or other matters
affecting the Property or Seller.
"LITIGATION RECEIVABLES" shall have the meaning set forth in Section
7.4(a).
"LOSSES" shall mean with respect to any obligation to indemnify
Seller, the Indemnified Seller Persons, Purchaser or the Indemnified Purchaser
Persons, any and all claims, actions, suits, demands, losses, damages,
liabilities, obligations, judgments, settlements, awards, penalties, costs or
expenses, including, without limitation, reasonable attorneys' fees and
expenses.
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"MISSING TENANTS" shall have the meaning set forth in Section 10.3.
"PARTY" shall mean a party to the DOA or a Contract (or the successor
or assignee thereof) or a party to a Lease (or the successor or assignee
thereof), in each case other than Seller.
"PERMITTED EXCEPTIONS" shall mean the exceptions to title to the
Property listed on EXHIBIT D attached hereto and made a part hereof.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, governmental unit or agency, trust, estate or other entity
of any type.
"PERSONALTY" shall mean all of the personal property, both tangible
and intangible, owned by Seller and located in or upon or used in connection
with the operation and maintenance of the Property, including without
limitation fixtures; machinery; equipment; building supplies and materials;
consumables; inventories; names, logos, trademarks, trade names and copyrights;
all assignable licenses, permits and certificates of occupancy; all assignable
guarantees or warranties (including performance bonds obtained by, or for the
benefit of, Seller, pertaining to the ownership, construction or development of
the Real Property or any part thereof); the Books and Records; computer and
peripheral equipment; computer software and data contained in hard drives and
on diskette; advertising materials; and telephone exchange numbers. Without
limiting the foregoing, "Personalty" shall include the property listed on
SCHEDULE 1.1-2. Personalty shall not include: (i) personal items belonging to
Tenants or to employees of Seller; (ii) the rights of Seller in and to the
Leases, the Contracts and the cash and the cash accounts of Seller (including
any cash or cash accounts constituting the Security Deposits); (iii) any items
specifically set forth on SCHEDULE 1.1-2 as excluded from Personalty; or (iv)
the computer software products known as Novell and CenterSoft, together with
that certain Gateway PS-90 computer, Serial #3396235, on which the
aforementioned software is loaded (provided that a copy of the data prepared
using such software, in ASCII comma delimited format, shall be included in
Personalty).
"PROMOTIONAL ASSOCIATION" shall have the meaning set forth in Section
8.1(k).
"PROPERTY" shall mean (a) the Real Property, (b) the Personalty, (c)
the rights and interests of Seller or any of Seller's predecessors-in-interest
in, to and under all Leases, (d) the rights and interests of Seller or any of
Seller's predecessors-in-interest in, to and under the DOA, and (e) the rights
and interests of Seller in, to and under the Contracts to the extent
assignable.
"PURCHASER CLOSING DOCUMENTS" shall have the meaning set forth in
Section 6.3.
"PURCHASE PRICE" shall have the meaning set forth in Section 2.2.
"REAL PROPERTY" shall mean the Land and the Improvements, together
with all of the estate, right, title and interest of Seller therein, and in and
to (a) any land lying in the beds of any streets, roads or avenues, open or
proposed, public or private, in front of or adjoining the Land to the center
lines thereof, and in and to any awards to be made in lieu thereof and in and
to any unpaid awards for damage to the foregoing by reason of the change of
grade of any such streets, roads or avenues; and (b) all easements, rights,
licenses, privileges, rights-of-way, strips and gores, hereditaments and
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such other real property rights and interests appurtenant to the foregoing,
including, without limitation, all rights of Seller under the DOA.
"RECONCILIATIONS" shall have the meaning set forth in Section 7.5.
"REGULATIONS" shall mean the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"RECEIVABLES LIST" shall have the meaning set forth in Section 7.4(a).
"RENT ROLL" shall have the meaning set forth in Section 8.1(e).
"RENTS" shall mean fixed, minimum, additional, percentage and overage
rents, common area maintenance charges, advertising and promotional fees,
insurance charges, rubbish removal charges, sprinkler charges, shoppers aid
charges, water charges, utility charges, HVAC charges, amounts payable with
respect to real estate and other taxes, and other amounts payable by any Party
under the Leases and the DOA.
"SALES BASED TENANT CHARGES" shall mean Rents consisting of overage or
percentage rent.
"SEARS" shall mean Sears, Xxxxxxx and Company.
"SECURITY DEPOSITS" shall have the meaning set forth in Section 7.8.
"SELLER CLOSING DOCUMENTS" shall have the meaning set forth in Section
6.2.
"SELLER'S LIABILITIES" shall have the meaning set forth in Section
2.3(b).
"SUBSTANTIAL CASUALTY" or "SUBSTANTIAL TAKING" shall mean a Casualty
or Taking, as the case may be, where:
(a) the condemnation award, or the proceeds payable under
the applicable policy or policies of casualty insurance maintained by
Seller, are insufficient by more than $100,000 to fully repair the
damage caused by such Casualty or Taking, unless Seller shall (at its
sole option and without any obligation to do so) grant to Purchaser a
credit equal to such deficiency; or
(b) an Anchor or Sears shall, by reason of such Casualty
or Taking, either terminate its Lease or its obligations under the
DOA, or cease operating at the Property (other than temporarily due to
such damage and destruction, remodeling, renovation or any similar
cause), or cease operating at the Property under the name under which
it was operating immediately prior to such Taking or Casualty (as
permitted by the provisions of such Lease or DOA) or have the right to
do any of the foregoing (unless such right shall have expired or been
waived); or
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(c) the estimated time for repair or restoration shall
exceed three (3) months; or
(d) in the case of a Taking, a taking with respect to
such portion of the Real Property as, when so taken would, in the
reasonable opinion of Purchaser, leave remaining a balance of the Real
Property, which, due either to the area taken or the location of the
part taken would not, under applicable zoning laws, building
regulations and economic conditions then prevailing or otherwise,
readily accommodate a new or restructured building or buildings of a
type and size generally similar to the building or buildings existing
on the date hereof, or would result in inadequate parking or lack of
reasonable access to public roads.
"SURVEY" shall mean an Urban ALTA/ACSM Land Title Survey of the
Property which shall: be made by a surveyor licensed or registered in the State
where the Real Property is located; be made in compliance with and meeting the
accuracy standards under the "Minimum Standard Detail Requirements for
ALTA/ACSM Land Surveys" jointly established by the American Land Title
Association and American Congress on Surveying and Mapping then in effect and
containing Table A Optional Survey Responsibilities and Specifications 1, 2,
3, 4, 6, 7(a), 7(b)(1), 8, 9, 10, and 11; show the boundaries of each of the
Land parcels; disclose whether or not the Land comprises a single parcel of
land with no strips, gores or gaps within its boundaries; disclose any
encroachments of any Improvements located primarily on the Land onto adjoining
premises and public ways (and whether or not a valid easement for the benefit
of the Real Property exists and is in place with respect to each such
encroachment) or onto or over setback or building lines located on the Real
Property or of improvements located primarily on adjoining premises onto any
portion of the Land (and whether or not a valid easement for the benefit of the
adjoining premises shall exist and be in place with respect to each such
encroachment); locate all easements created by recorded instruments (to the
extent plottable) or visible on the Real Property and disclose any encroachment
by any of the Improvements, or any other structures located on the Land, in
violation of any such easements; contain a legal description of the Land; show
the location of any adjacent public streets, disclosing access, if any, to the
Land therefrom; show building line(s) and side yard line(s), if any; show the
configuration and number of parking spaces on the Land; show the area of the
Land; state whether the Land is located in an area designated by HUD as having
special flood risks; show significant observations visible on the surface to
the naked eye which are not otherwise disclosed; show the location and height
of the highest point of each structure located on the Real Property; and
contain a certificate of the surveyor attesting to the accuracy of the Survey
and its conformity to the requirements of the aforesaid Minimum Standard Detail
Requirements, which certificate shall be directed to Seller, Purchaser and the
Title Company, and to such other persons having an interest in the Property
which Purchaser may designate.
"SURVIVAL TERMINATION DATE" shall have the meaning set forth in
Section 13.1.
"TAKING" shall mean a taking of all or any portion of the Real
Property in condemnation or by exercise of the power of eminent domain or by an
agreement in lieu thereof.
"TENANT ESTOPPEL" shall have the meaning set forth in Section 10.3.
"TENANTS" shall mean tenants, concessionaires, licensees and/or
occupants under the Leases.
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"THIRD PARTY CLAIM" shall have the meaning set forth in Section 11.3.
"TITLE COMMITMENT" shall mean a commitment for title insurance issued
by the Title Company to Purchaser providing for the issuance at the Closing to
Purchaser of the Title Policy, which commitment must disclose Seller as the
owner of fee simple interest in the Real Property and shall disclose and shall
have attached to it (or there shall be delivered by Seller to Purchaser) copies
of all documents underlying all exceptions to title and all encumbrances on and
other matters of record affecting the Real Property, and which commitment shall
include forms of all endorsements to be a part of the Title Policy.
"TITLE COMPANY" shall mean Chicago Title Insurance Company.
"TITLE POLICY" shall mean an ALTA Form B-1970 Owner's Policy of Title
Insurance issued by Title Company, dated the date and time of Closing and with
policy coverage in the amount of the Purchase Price, insuring Purchaser as
owner of good, marketable and indefeasible fee title to the Property, subject
only to the Permitted Exceptions, and affirmatively insuring as a part of
Schedule A to such Title Policy Purchaser's rights under the DOA or other
appurtenant easements that benefit the Real Property and containing the
following endorsements: an extended coverage endorsement over the general
exceptions contained in the policy, an endorsement insuring against loss of
title to the Property or the inability of the owner of the Property to maintain
the Improvements now located on the Property by reason of a violation of a
covenant, condition or restriction of record affecting the Property, a location
endorsement insuring the accuracy of the Survey, an endorsement insuring legal
access to the Property from each of the streets bordering on the Property, and
insuring that all such streets are dedicated public streets, a contiguity
endorsement, a zoning 3.1 endorsement including coverage over parking, and a
tax parcel endorsement.
"TRANSACTIONS" shall mean the transactions contemplated by this
Agreement.
"UNDERGROUND STORAGE TANKS" shall mean Underground Storage Tanks as
defined in Section 9001 of RCRA and as used herein, such term shall also
include (i) any farm or residential tank of 1,100 gallons or less capacity used
for storing motor fuel for noncommercial purposes, (ii) any tank used for
storing heating oil for consumption on the premises where stored, (iii) any
septic tank and (iv) any pipes connected to any of the items described in
clauses (i) through (iii).
"UPDATED RECEIVABLES" shall have the meaning set forth in Section
7.4(a).
1.2 References. All references in this Agreement to particular
sections or articles shall, unless expressly otherwise provided, or unless the
context otherwise requires, be deemed to refer to the specific sections or
articles in this Agreement, and any references to "Exhibit" shall, unless
otherwise specified, refer to one of the exhibits annexed hereto and, by such
reference, be made a part hereof. The words "herein", "hereof", "hereunder",
"hereinafter", "hereinabove" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or article
hereof.
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ARTICLE II
Sale and Purchase
2.1 Purchase and Sale Contract. Upon the terms and subject to the
conditions contained herein, at the Closing, Seller shall sell, assign,
transfer and convey to Purchaser, and Purchaser shall purchase from Seller, all
of Seller's right, title and interest in and to the Property, free and clear of
all Liens other than the Permitted Exceptions.
2.2 Purchase Price. The purchase price for the Property (the
"PURCHASE PRICE") shall be Thirty Two Million Dollars ($32,000,000) payable as
follows:
(a) On the date upon which both parties have received a
fully-executed counterpart of this Agreement and the escrow agreement referred
to below, Purchaser shall deposit with the Escrow Agent the sum of Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00) (the "XXXXXXX MONEY") to be
held as an xxxxxxx money deposit pursuant to the escrow agreement in the form
of EXHIBIT B attached hereto and made a part hereof (the "XXXXXXX MONEY
ESCROW"). All funds deposited in the Xxxxxxx Money Escrow shall be invested
in interest- bearing or money-market accounts. Upon and subject to the
occurrence of the Closing, all funds on deposit in the Xxxxxxx Money Escrow
shall be transferred to Seller, such amount to be applied in partial payment of
the Cash Payment. The parties shall issue instructions to the Escrow Agent to
effectuate the provisions of this Section 2.2(a). The provisions of this
Section 2.2(a) shall survive the termination of this Agreement, however caused.
(b) The balance of the Purchase Price, less the aggregate
amount of the Xxxxxxx Money, plus or minus applicable prorations described
below, shall be deposited by Purchaser in escrow under the terms of the
Closing Escrow Agreement in immediate, same-day federal funds (all or any part
of which may be the proceeds of a loan) wired for credit into such account as
Escrow Agent may designate on the Closing Date.
(c) The Purchase Price shall, for purposes of the Code,
be allocated as set forth on Schedule 2.2(a).
2.3 Assumption of Liabilities.
(a) At the Closing, Purchaser shall assume (i) the
liabilities and obligations of Seller arising from and after the Closing Date
under or in respect of the Leases (including any obligation to refund any
Security Deposits), the DOA and the assignable Contracts (with the liability
of Purchaser being limited to the same extent, if any, as Seller's liability is
limited thereunder) but only to the extent such liabilities and obligations do
not arise out of any transaction, event, circumstance, action, failure to act
or occurrence of any sort or type which occurred, existed or was taken prior to
the Closing Date and (ii) other liabilities and obligations herein described to
the extent Purchaser has received proration credit therefor. All of the
obligations to be assumed by Purchaser pursuant to this Section 2.3(a) are
hereinafter referred to as the "ASSUMED LIABILITIES".
(b) Except as otherwise herein expressly provided,
Purchaser is not assuming and shall not by virtue of the consummation of the
Transactions be deemed to have assumed any
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liabilities or obligations of Seller, whether or not the same relate to the
Property or were incurred in connection with the ownership, use, management or
operation thereof by Seller or by its agents (collectively, "SELLER'S
LIABILITIES"). Without limiting the foregoing, Seller's Liabilities shall
include all federal, state and local taxes of whatever kind and nature (other
than real estate taxes and assessments on real property for which Purchaser
has received credit under Article VII), liabilities relating to any employees,
employee benefit plans or collective bargaining agreements of Seller, including
without limitation severance pay obligations, and liabilities or expenses
relating to the claims disclosed on Schedule 8.1(w).
ARTICLE III
Title Insurance and Survey
3.1 Delivery of Title Commitment, Lien Searches and Survey.
Within ten (10) days after the Execution Date, Seller, at Seller's sole cost
and expense, shall cause the Title Company to deliver the Title Commitment to
Purchaser. Within ten (10) days after the Execution Date, Seller, at Seller's
sole cost and expense, shall deliver the Lien Searches to Purchaser. Within
fifteen (15) days after the Execution Date, Seller, at Seller's sole cost and
expense shall deliver the Survey to Purchaser.
3.2 Title Defects. If the Title Commitment, the Lien Searches or
the Survey, or any update of the Title Commitment, the Lien Searches or the
Survey, at any time discloses exceptions to title or any Defects other than
Permitted Exceptions, Purchaser shall so notify Seller in writing (a
"DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless
Purchaser sends such a Disapproval Notice within such time period, Purchaser
shall be deemed to have approved the Title Commitment, Lien Searches, and
Survey. With respect to any Defects noted in a Disapproval Notice, Seller
shall (a) cause any such Defects which are monetary liens of a fixed or
ascertainable amount that may be removed by the payment of money, including,
without limitation, judgment and mechanics' liens, to either be: (i) bonded and
insured over, or (ii)removed at or prior to the Closing, and (b) notify
Purchaser in writing within ten (10) days after receipt of the Disapproval
Notice whether Seller will cause all or any of such other Defects to be removed
or cured at or prior to Closing, and Seller shall be deemed to have elected to
remove or cure all other Defects by Closing if Seller does not notify Purchaser
to the contrary in writing within such ten (10) day period. If Seller elects
not to remove or cure all Defects, Purchaser may elect, in its sole discretion,
(i) subject to satisfaction of the other conditions to Closing, to close the
purchase of the Property, taking a deduction from the Purchase Price in the
amount necessary to cure the monetary liens of a fixed or ascertainable amount
that may be removed by the payment of money which Seller has not bonded and
insured over, and to take title subject to the other Defects noted in the
Disapproval Notice that Seller elects not to remove or cure, or (ii) to
terminate this Agreement, in which event the Xxxxxxx Money and all interest
accrued thereon shall be immediately returned to Purchaser. If Seller elects
to cure or remove any Defect, then Seller thereafter shall be obligated to do
so as long as this Agreement is in effect. Seller shall have thirty (30) days
to remove or cure any Defect that it has elected to remove or cure (or deemed
to have elected to remove or cure). The Closing Date shall be extended as
necessary to permit the parties to exercise their respective rights and
obligations pursuant to this Section 3.2.
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3.3 Purchaser's Options Upon Failure to Cure. If any Defect that
Seller has elected to remove or cure (or deemed to have elected to remove or
cure) has not been removed at least five (5) days prior to Closing (as may be
extended pursuant to Section 3.2 hereof), or provision for its removal or cure
by Closing has not been made to Purchaser's satisfaction, Purchaser may elect,
in its sole discretion: (a) subject to satisfaction of the other conditions to
Closing, to close the purchase of the Property, and take title subject to any
Defects that have not been cured or removed at or before Closing and to deduct
from the Purchase Price the amount of any definite or ascertainable lien
constituting a Defect (provided that such election shall not release Seller
from its obligation to cure or remove Defects after the Closing, which
obligation shall survive the Closing); or (b) to terminate this Agreement, in
which event the Xxxxxxx Money and all interest accrued thereon shall be
immediately returned to Purchaser.
3.4 Reinsurance. Seller shall cause the Title Company to agree to
reinsure portions of the risk covered by its title insurance policies with
reinsurance companies reasonably satisfactory to Purchaser under standard
reinsurance agreements providing, at a minimum, for direct access and
enforcement of rights by the insured party to and against the reinsurer.
3.5 Defects After Inspection Period. If any updated Title
Commitment or Survey discloses any Defect after the Inspection Period,
Purchaser shall promptly deliver a Disapproval Notice to Seller and the rights
and obligations of Seller and Purchaser shall be governed by Sections 3.2 and
3.3.
ARTICLE IV
Access
4.1 Inspection Period.
(a) Purchaser shall have twenty (20) days from the
Execution Date (the "INSPECTION PERIOD") to inspect the Property, conduct
Purchaser's due diligence and review of the Property, the Financial Statements
and the Books and Records, and to perform such tests, surveys, engineering
studies, analyses, inspections and examinations as Purchaser, in Purchaser's
sole and absolute discretion determines to be necessary.
(b) Notwithstanding anything to the contrary contained in
this Agreement, the Inspection Period shall be extended, day- for-day, for each
day that passes after the tenth (10th) day after the Execution Date in which
Purchaser has not received the Financial Statements, the Survey, the Title
Commitment or a copy of any matter of record reflected in the Title Commitment
or access to the Books and Records.
4.2 Inspection of the Property.
(a) From and after the Execution Date, Seller shall give
Purchaser and its representatives and consultants access to and the right to
inspect, test, survey and analyze the Property (including without limitation
for purposes of conducting environmental testing). From and after the
Execution Date until Closing and upon request by Purchaser, Seller timely shall
provide
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Purchaser with access to the Books and Records and such other material
information and data with respect to the Property which is in Seller's
possession, including without limitation copies of Leases, the DOA and the
Contracts and such financial and other information as Purchaser reasonably
requests. Subject to the provisions of Section 10.7 hereof, Purchaser may
contact Parties as Purchaser deems appropriate in connection with its due
diligence examination.
(b) Purchaser shall indemnify, defend and hold Seller
harmless, from and against any Loss proximately caused by the exercise by
Purchaser of its rights of access and inspection pursuant to the provisions of
this Section 4.1. The indemnification obligations of Purchaser under this
Section 4.2(b) shall survive the Closing or termination of this Agreement.
4.3 Financial Statements. Within ten (10) days following the
Execution Date, Seller, at Seller's sole cost and expense, shall furnish
Purchaser with unaudited annual financial statements for the Property
consisting of an accrual profit and loss statement of actual results of
operations and a balance sheet for the years ended December 31, 1992, 1993,
1994, 1995 and 1996 and the budgets for calendar years 1996 and 1997 (the
"FINANCIAL STATEMENTS"). The Financial Statements shall be accompanied by a
management representation letter signed by the Chief Financial Officer of
Xxxxxx Dairies, Inc., an Alabama corporation, representing that the Financial
Statements are correct.
4.4 Books and Records. Within ten (10) days following the
Execution Date, Seller, at Seller's sole cost and expense, shall deliver to
Purchaser, or make available to Purchaser at Seller's office located on the
Land, the Books and Records.
4.5 Deleted.
4.6 Termination.
(a) If Purchaser, in its sole and absolute discretion,
determines that the results of its due diligence examination, including without
limitation the results of any legal, factual, physical or other inquiry or
investigation as to the physical condition, the suitability for intended use,
the redevelopment potential, the value, or the income or sales or financing
proceeds to be derived from the ownership, use, operation or disposition of the
Property or any other matter related to the Property (other than with regard to
title or survey matters) , are not satisfactory in any respect, Purchaser may
terminate this Agreement upon written notice given to Seller on or before the
expiration of the Inspection Period. In the event of termination of this
Agreement pursuant to the terms of this Section, the Xxxxxxx Money and all
interest accrued thereon shall be immediately returned to Purchaser. The
parties hereto acknowledge that Purchaser may expend material sums of money in
reliance on Seller's obligations under this Agreement in connection with
negotiating and executing this Agreement and conducting inspections and
investigations pursuant to this Article IV, that Purchaser would not have
entered into this Agreement without the availability of the termination right
contained herein and that, accordingly, adequate consideration exists for
Seller's obligations hereunder before the expiration of the Inspection Period.
In the event of such termination, this Agreement shall be null and void and all
parties shall be released from all further rights and obligations under this
Agreement (other than any right or obligation that expressly survives the
termination of this Agreement). Notwithstanding anything to the contrary
contained herein, as of the date hereof, Purchaser shall not be deemed to have
approved any documents, materials or other
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information which have been furnished to Purchaser or its representatives prior
to the date hereof or which are listed, described, set forth or referred to on
the Schedules hereof. Purchaser may determine in its sole and absolute
discretion the scope and nature of its due diligence examination.
(b) The foregoing to the contrary notwithstanding, in the
event Purchaser terminates this Agreement because of a title or survey matter
which Seller has cured, or has agreed to cure in a timely manner in accordance
with the provisions of Article III of this Agreement, such termination shall be
treated as a default of Purchaser, and the Xxxxxxx Money shall be delivered to
Seller as liquidated damages in accordance with the provisions of Section 14.2.
ARTICLE V
Costs and Expenses
5.1 Title and Survey Costs. Title and Survey costs shall be paid
as follows:
(a) Seller shall pay the cost of obtaining the Title
Commitment and the Title Policy and the cost of recording any documents
required to terminate the Ground Lease and release, cure or remove Defects;
(b) Seller shall pay the cost of obtaining the Survey;
(c) Purchaser shall pay the cost of recording the deed or
deeds conveying the land to Purchaser and any other documents, including
without limitation the recording privilege tax payable with respect to the deed
or deeds pursuant to ALA. CODE Section 40-22-1, which are in the amount of
$0.50 per $500 or fraction thereof of value conveyed by said deed or deeds and
the filing fees payable with respect to said deed or deeds pursuant to ALA.
CODE Section 12-19-90.
(d) Except with respect to those costs set forth in
Section 5.1(c) hereinabove, Seller shall be solely responsible for the payment
of any real property transfer taxes, gains taxes levied or imposed upon Seller
or the Property as a result of the transfers to Purchaser, sales taxes levied
or imposed upon Seller or the Property as a result of the transfers to
Purchaser, and other taxes, fees or charges imposed in connection with the
conveyance of the Property or any portion thereof;
(e) Purchaser shall pay all filing fees and charges and
any personal property sales taxes in connection with the transfer of the
Personalty to Purchaser; and
(f) Seller shall pay the costs of the Lien Search.
5.2 Escrow Costs. The cost of the escrow created pursuant to the
Xxxxxxx Money Escrow and the cost of the escrow created pursuant to the Closing
Escrow Agreement, including, without limitation, any "New York Style" escrow
fees, shall be divided equally between Seller and Purchaser.
5.3 Other Costs. Seller shall pay any and all costs or expenses
in connection with the termination of any Contracts to be terminated in
accordance with the terms of this Agreement.
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Purchaser and Seller shall each pay their respective legal fees incurred in
connection with the drafting and negotiation of this Agreement and the Closing
of the Transactions.
ARTICLE VI
Closing
6.1 Closing. The closing of the Transactions (the "CLOSING")
shall take place at the offices of Xxxx, Xxxxxx & Xxxxxxxxx, Xxx Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, in accordance with the terms of the Closing
Escrow Agreement, and shall occur at a time and date mutually agreed to by the
parties (the "CLOSING DATE"), provided, however, that anything in this
Agreement to the contrary notwithstanding, in no event shall the Closing Date
occur after May 30, 1997 unless an amendment to this Agreement shall be entered
into by the parties to this Agreement, which Amendment shall set forth a new
final date for the Closing. It is understood that Seller may send a
representative to Chicago to attend the Closing and Purchaser agrees to use
reasonable efforts to provide Seller in advance with any documents which must
be executed by Seller.
6.2 Seller Closing Documents. On or prior to the Closing Date,
Seller shall deliver, or cause to be delivered, to Purchaser (either directly
or under the terms of the Closing Escrow Agreement) the following documents
(collectively, the "SELLER CLOSING DOCUMENTS"), duly executed by Seller and the
other parties thereto (other than Purchaser) and in form and substance
reasonably acceptable to Purchaser and to Seller unless the form thereof is
attached hereto:
(a) Statutory Warranty Deed or deeds in proper statutory
form for recording, so as to convey the entire fee simple estate of Seller in
the Land and Improvements and all other items of Real Property to Purchaser.
(b) Assignment or assignments of all of Seller's right,
title and interest under the Leases, all of which, to the extent the same
relate to Leases or memoranda thereof which have been recorded in appropriate
land records, shall be in form suitable for recording.
(c) Assignment of all of Seller's right, title and
interest in the DOA with respect to the Property in form suitable for
recording.
(d) Assignment of all of Seller's right, title and
interest in and to the Contracts, to the extent assignable.
(e) Bills of Sale sufficient to transfer to Purchaser all
of Seller's right, title and interest in and to the Personalty, it being
understood that such Bills of Sale shall contain the following language:
No representation or warranty, express or implied, is made regarding
the physical condition or quality of any of the structures, fixtures,
facilities, installations, machinery or equipment, in, on, over or
under the real property conveyed herewith, or any property
constituting a part of the Personalty, except for the warranty that
Seller is the sole owner of such Personalty, free and clear of all
liens and
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encumbrances, except as otherwise specifically set forth. SELLER MAKES
NO WARRANTY OF MERCHANTABILITY, or quality or condition as to any such
property or any item thereof, or as to the workmanship thereof or the
absence of any defects therein, it being the express intention of
Seller and Purchaser that the structures, fixtures, facilities,
installations, machinery or equipment, in, on, over orunder the real
property conveyed herewith are being conveyed to Purchaser in their
present condition and state of repair, "AS IS" and " WHERE IS", with
all faults.
(f) An affidavit of Seller stating its U.S. taxpayer
identification number and that it is a "United States person", as defined by
Sections 1445(f)(3) and 7701(b) of the Code.
(g) The Estoppels, or so many of the Estoppels as are
required to satisfy the conditions of Section 10.3, provided Seller delivers at
Closing a Tenant Estoppel executed by Seller for each Missing Tenant.
(h) An updated Rent Roll in accordance with Section
8.1(e).
(i) Such certificates as Purchaser may reasonably request
as to the authorization on the part of Seller of the execution, delivery and
performance of this Agreement and the authority of the Persons executing and
delivering this Agreement and the Seller Closing Documents on behalf of Seller.
(j) A written certificate executed on behalf of Seller
and addressed to Purchaser to the effect that all of the representations and
warranties of Seller herein contained in Section 8.1 are true and correct in
all material respects as of the Closing Date (as supplemented in accordance
with Section 10.2) with the same force and effect as though remade and repeated
in full on and as of the Closing Date or stating the specific respects, if any,
in which any of the representations and warranties is untrue.
(k) Written notices (i) to the Tenants advising them of
the change of ownership and directing them to pay Rents and other charges under
their respective Leases as directed by Purchaser; (ii) to Sears under the DOA,
advising it of the change of ownership and directing Sears to pay all Rents
and other charges under the DOA to Purchaser; and (iii) to each Party to each
of the Contracts advising of the transfer and assignment of Seller's interest
in the Contracts to Purchaser and directing that future inquiries be made
directly to Purchaser.
(l) A termination of the Xxxxxx Lease in recordable form.
(m) A copy of the partnership agreement of Seller,
together with a certificate of a general partner of Seller, to the effect that
the attached copy of the partnership agreement of Seller and amendments thereto
is true, accurate and complete.
(n) Copies of the Articles of Organization of Xxxxxx
Dairies, Inc., one of the general partners of Seller, and any amendments
thereto, certified by the Alabama Secretary of State as of a date not more than
ten (10) days prior to the Closing Date, together with a certificate of an
officer of such general partner to the effect that the Articles of Organization
thereof, as certified by
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the Secretary of State aforesaid, have not been further amended, revised,
restated, canceled or rescinded up to and including the Closing Date and that
the attached copy of the by-laws thereof and amendments thereto is true,
accurate and complete.
(o) Certificate issued by the Alabama Secretary of State,
dated not more than ten (10) days prior to the Closing Date, certifying the
good standing of Xxxxxx Dairies, Inc.
(p) An opinion or opinions of counsel for Seller dated as
of the Closing Date, in the form of EXHIBIT E attached hereto and otherwise in
form and substance reasonably acceptable to Purchaser.
(q) Original, or copies certified by Seller as true and
correct, of the Leases and the DOA, together with all Books and Records; it is
understood by the parties that Seller shall deliver the original Leases and
Contracts and all other Books and Records located at Seller's office located on
the Land, but that otherwise Seller's obligation to deliver the Books and
Records may be satisfied by the delivery of copies certified by Seller as true
and correct in any case where Seller is required to retain originals.
(r) Keys and combinations to locked compartments within
the Property.
(s) Schedule of Fixed and Other Tenant Charge Arrearages
payable as of the Closing Date or a date not more than ten (10) days prior
thereto by each Party which schedule shall set forth separately and certify the
items of Rents with respect to which each such Party is in arrears, the amount
of each item and the period of such arrearage.
(t) The Contract Party Consents.
(u) Updated Lien Searches dated not more than ten days
prior to the Closing Date.
(v) The instruments, documents or certificates as
required by the Title Company to be executed or provided by Seller as a
condition to the issuance of the Title Policy at the Closing pursuant to the
Title Commitment.
(w) Any instruments, documents or certificates required
to be executed by Seller with respect to any state, county or local transfer
taxes applicable to the conveyance of the Property pursuant to this Agreement.
(x) Such other documents, instruments or agreements which
Seller is required to deliver to Purchaser pursuant to the other provisions of
this Agreement.
Notwithstanding any provision to the contrary set forth elsewhere in
this Agreement, if after the use of commercially reasonable efforts to do so
Seller is unable to deliver to Purchaser at Closing the Contract Party
Consents, or the Estoppels (or so many of the Estoppels as are required to
satisfy the conditions of Section 10.3 together with the required number of
Tenant Estoppels executed by Seller for the Missing Tenants, in each case with
the Estoppels or Seller's Estoppels unmodified from the form approved by
Purchaser pursuant to Section 10.3, or if modified, as approved by
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Purchaser in Purchaser's sole discretion), Purchaser shall have the option, as
Purchaser's sole and exclusive right and remedy either (i) to terminate this
Agreement by giving written notice of such termination to Seller on or before
the Closing or (ii) to complete Closing without the delivery of such item or
items, and in the event Purchaser completes the Closing without the delivery of
such item or items, Purchaser shall be deemed to have waived the requirement
for the delivery of such item or items unless both parties agree, in writing,
to continue seeking delivery of such missing item or items. If Purchaser shall
terminate this Agreement pursuant to the provisions of this Section, this
Agreement shall be null and void and no party shall have any further rights or
obligations under this Agreement (other than any right or obligation that
expressly survives the termination of this Agreement), and the Xxxxxxx Money
and all interest accrued thereon shall immediately be returned to Purchaser.
6.3 Purchaser Closing Documents. On or prior to the Closing Date,
Purchaser shall deliver to Seller (either directly or under the terms of the
Closing Escrow Agreement) the following documents (herein referred to
collectively as the "PURCHASER CLOSING DOCUMENTS"), duly executed by an
authorized officer on behalf of Purchaser and the other parties thereto (other
than Seller) and in form and substance reasonably acceptable to Seller and to
Purchaser unless the form thereof is attached hereto:
(a) An agreement or agreements, in recordable form, to the
extent the same relates to recorded instruments, pursuant to which Purchaser
assumes the Assumed Liabilities.
(b) A duly executed and acknowledged Certificate,
certifying that the members of Purchaser have authorized the consummation of
the Transactions.
(c) A certificate issued by the Secretary of State of
Delaware dated not earlier than ten (10) days prior to the Closing Date
certifying the good standing of Purchaser as of the date of such certificate.
(d) deleted.
(e) A written certificate addressed to Seller to the
effect that all of the representations and warranties of Purchaser contained in
Section 8.2 are true and correct in all material respects on and as of the
Closing Date (as supplemented in accordance with Section 10.2) with the same
force and effect as though remade and repeated in full on and as of the Closing
Date (except for actions taken in accordance with or as contemplated by this
Agreement and except for matters approved in writing or consented to in writing
by Seller) or stating the specific respects, if any, in which any of the
representations and warranties is untrue.
(f) Any instruments, documents or certificates required
to be executed by Purchaser with respect to any state, county or local transfer
taxes applicable to the conveyance of the Property pursuant to this Agreement.
(g) Such other documents, instruments or agreements which
Purchaser may be required to deliver to Seller pursuant to the other provisions
of this Agreement or which Seller reasonably may deem necessary or desirable to
consummate the Transactions; provided, however,
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that any such other document, instrument or agreement which Seller reasonably
deems necessary or desirable shall not impose upon Purchaser any obligation or
liability other than an obligation or liability expressly imposed upon
Purchaser pursuant to the terms of this Agreement or pursuant to the terms of
the other Purchaser Closing Documents specified in this Section 6.3.
6.4 Joint Deliveries. Seller and Purchaser shall jointly execute
and deliver a Closing Statement with respect to the Transactions.
ARTICLE VII
Prorations and Adjustments
7.1 Prorations. Subject to the other provisions of this Article,
the items pertaining to the Property that are identified in Sections 7.1, 7.2,
and 7.3 of this Article shall be prorated between the parties on a per diem
basis (employing the actual number of calendar days in the period involved and
a 365-day year) so that credits and charges with respect to such items for all
days preceding the Closing Date shall be allocated to Seller, and credits and
charges with respect to such items for all days including and after the Closing
Date shall be allocated to Purchaser. All expenses of the Property authorized
or instigated by Seller or Seller's employees or agents for a period prior to
the Closing Date shall be paid by Seller, regardless of when the xxxx,
statement or invoice for such expense is received, and all expenses of the
Property relating to a period after the Closing Date shall be paid by
Purchaser. This provision of Article VII shall survive the Closing.
7.2 Items to be Prorated. The following items shall be prorated
between Purchaser and Seller as of 11:59 pm on the day immediately preceding
the Closing Date:
(a) real property taxes and assessments (or installments
thereof) based on the most recent tax bills except those required to be paid
directly to the entity imposing the same by those Tenants who are current in
all of their Lease payment obligations on the Closing Date;
(b) water rents and charges, if any, except those
required to be paid directly to the entity imposing the same by Tenants (who
are current in all of their Lease payment obligations on the Closing Date);
(c) sewer taxes and rents, if any, except those required
to be paid directly to the entity imposing the same by Tenants (who are current
in all of their Lease payment obligations on the Closing Date);
(d) actually accrued interest, if any, required to be
paid to a Party on Security Deposits;
(e) deleted;
(f) annual permit, license and inspection fees, if any,
on the basis of the fiscal year for which levied, if the rights with respect
thereto continue for the benefit of Purchaser following the Closing;
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(g) fuel oil and liquid propane gas, if any, at the cost
per gallon or cubic foot most recently charged to Seller with respect to the
Property, based on the supplier's measurements thereof, plus sales taxes
thereon;
(h) deposits, if any, on account with any utility company
servicing the Property;
(i) deposits on account with any municipality having
jurisdiction over the Property (other than deposits which are in the nature of
security for the performance of work);
(j) amounts paid or payable by or to Seller to or from
merchants associations and other tenant associations for promotional funds and
other similar contributions or payments;
(k) Rents;
(l) amounts paid or payable by Seller under the Contracts
to be assumed by Purchaser;
(m) deleted; and
(n) all other items customarily apportioned in connection
with the sale of similar properties similarly located.
Seller shall cooperate with Purchaser in the transfer of electricity,
gas, water and other utility services from Seller's name to the name of
Purchaser as of the Closing Date.
7.3 Installment Payment of Assessments. In furtherance of Section
7.2, if any real property assessment affects the Property at the Closing and
such real property assessment is payable in installments (whether at the
election of Seller or otherwise), the installment relating to, or payable over,
the Applicable Closing Fiscal Period shall be apportioned between Seller and
Purchaser as of the Closing Date, and the remaining installments shall be the
obligation of Purchaser.
7.4 Rent Receivables.
(a) Attached hereto as Schedule 7.4(a) is a list of all
outstanding billed receivables for the Property (the "Receivables List"),
including, without limitation, Rents, Sales Based Tenant Charges, and
Adjustable Tenant Charges, itemized by: (i) the party from whom the receivable
is due; (ii) the total amount due from such party; (iii) the category and
amount due making up the aggregate due; (iv) the period for which the amount is
due; (v) the amount of any credits due to the party which may offset the total
amount owed; and (vi) the total amount of prepetition amounts due from Tenants
which are involved in bankruptcy proceedings. The Receivables List shall
specify those parties that continue to be Tenants in the Property with stores
currently open, but against whom Seller or Seller's agent has commenced
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litigation, and those Tenants which are involved in bankruptcy proceedings
(amounts due from such parties, other than prepetition amounts due from Tenants
which are involved in bankruptcy proceedings, are hereinafter referred to as
"Litigation Receivables"). The Receivables List shall also specify those
parties that were Tenants in the Property which have now closed, and against
whom Seller or Seller's agent has commenced litigation or which are in
bankruptcy proceedings (all amounts due from such Tenants, together with
prepetition amounts due from Tenants which are involved in bankruptcy
proceedings, are hereinafter referred to as "Closed Receivables"). Not less
than five (5) days prior to the Closing Date, Seller shall deliver to Purchaser
an update of the Receivables List current to a date that is not more than 7
days prior to the Closing Date (the "Updated Receivables List"). Except for
Closed Receivables, which receivables shall be treated in accordance with the
provisions of Section 7.4(e), Seller shall assign to Purchaser at the Closing
all receivables noted on the Updated Receivables List. The receivables
assigned to Purchaser at Closing are hereinafter referred to individually as an
"Assigned Receivable" and collectively as the "Assigned Receivables."
(b) Seller shall receive a credit at Closing with respect
to all Assigned Receivables (other than the Collection Receivables as defined
in Section 7.4(d)), which credit shall be determined as follows:
(i) If the Assigned Receivable is due from an Anchor or
from Sears (regardless the age of such receivable) or is less than 60
days past due, the credit shall be equal to 100% of such Assigned
Receivable;
(ii) If the Assigned Receivable is 60 days or more past
due, but less than 90 days past due, the credit shall be equal to 50%
of such Assigned Receivable;
(iii) If the Assigned Receivable is 90 days or more past
due, but less than 120 days past due, the credit shall be equal to 25%
of such Assigned Receivable;
(iv) If the Assigned Receivable is 120 days or more past
due, the credit shall be zero;
(v) Seller shall receive no credit at Closing with
respect to the Collection Receivables as defined in Section 7.4(d).
(c) With the exception of Litigation Receivables and
those specific other receivables listed in subsection 7.4(d), the proration for
Assigned Receivables described herein shall be final, and any and all amounts
collected by Purchaser with respect to Assigned Receivables shall be
Purchaser's property regardless of the amount collected or received by
Purchaser.
(d) With respect to Litigation Receivables and with
respect to the receivable amounts from Camelot, Music Land and Stuart's (the
foregoing receivable amounts together with the Litigation Receivables are
hereinafter sometimes collectively referred to as the "Collection
Receivables"), after the Closing Date Purchaser shall use reasonable efforts to
collect Collection Receivables, and all amounts collected therefor (adjusted
for attorneys' fees in accordance with Section 7.9) shall be applied in
accordance with the provisions of Section 7.7. Seller shall not have any right
to make, nor to attempt to make, any collection efforts with respect to
Collection Receivables.
(e) Seller shall retain and shall have the right to
collect for its own account all Closed Receivables and there shall be no
proration or credit with respect to Closed Receivables.
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7.5 Proration of Adjustable Tenant Charges. Proration of any
unbilled amounts required to be paid by Tenants as Adjustable Tenant Charges
for the Applicable Closing Fiscal Period, which are due to be billed in the
Applicable Closing Fiscal Period, shall be prorated based upon actual
reconciliation billing amounts for the most recently completed fiscal period
prior to the Applicable Closing Fiscal Period, in the manner shown on the
examples of this proration set forth on Schedule 7.5. At the Closing, Seller
shall assign to Purchaser any amounts required to be paid by Tenants as
Adjustable Tenant Charges for 1996 and 1997 which have accrued on or before,
but remain unbilled on, the Closing Date, including, without limitation,
adjustment amounts which are billed with regard to the Applicable Closing
Fiscal Period, and Seller shall receive a credit for such amounts, in the
manner shown on the examples of this adjustment set forth on Schedule 7.5. The
proration for Adjustable Tenant Charges described herein shall be final, and
any and all amounts collected by Purchaser with respect to Adjustable Tenant
Charges shall be Purchaser's property regardless of the amount collected or
received by Purchaser. The foregoing to the contrary notwithstanding, with
respect to Tenants who are more than sixty days delinquent in the payment of
Fixed and Other Tenant Charges in an amount equal to or exceeding one month's
such charges as shown on the Updated Receivables List, or who have amounts
itemized as Litigation Receivables on the Updated Receivables List as being
more than sixty (60) days delinquent in payment of amounts exceeding the amount
of one month's Fixed and Other Tenant Charges, the credit for the amount of any
Adjustable Tenant Charges due from such Tenants shall be discounted in the
manner set forth in Section 7.4(b)(i) through 7.4(b)(iv).
7.6 Proration of Sales Based Tenant Charges. Sales Based Tenant
Charges which are payable with respect to any period prior to the Closing Date
or which have been accrued prior to the Closing Date shall be apportioned as of
the Closing Date on a dollar for dollar basis using the applicable fiscal
period as set forth in each particular Lease, with Seller entitled to a credit
for the period prior to the Closing Date and Purchaser entitled to a credit for
the period after the Closing Date. After the Closing Date, as and when actual
amounts for Sales Based Tenant Charges are paid by Tenants, but not more
frequently than one time each month, such amounts shall be reprorated so that
the amount thereof under each of the Leases to which Seller shall be entitled,
as finally determined, shall be the entire amount thereof with respect to any
fiscal period ending prior to the Closing Date, and, for the Applicable Closing
Fiscal Period, an amount which bears the same ratio to the total Sales Based
Tenant Charges as the number of days in the Applicable Closing Fiscal Period
which have elapsed prior to the Closing Date bears to the total number of days
in the Applicable Closing Fiscal Period. Examples of this proration are set
forth on Schedule 7.6.
7.7 Application of Rent Receipts. Notwithstanding anything to the
contrary contained herein, in determining the adjustments and apportionments
pursuant to Sections 7.4 and 7.6, the following shall apply:
(a) Any amounts collected by Purchaser as Collection
Receivables, which are not designated to a particular time period by the party
making such payment, or which are not otherwise clearly related to a particular
time period in the good faith judgment of Purchaser, shall be deemed to have
been paid by the Party, first, on account of amounts then due Purchaser for
periods after the Applicable Closing Fiscal Period, next, on account of amounts
then due for the Applicable Closing
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Fiscal Period and, next, on account of amounts then due for all fiscal years
prior to the Applicable Closing Fiscal Period.
(b) deleted.
(c) Notwithstanding anything to the contrary contained in
this Section 7.7: (i) a payment of Rents shall be applied to the payment of the
item or items of Rents designated by the party making such payment or to which
such payment otherwise clearly relates in the good faith judgment of Purchaser;
and (ii) any amounts collected in connection with the bankruptcy proceeding of
a Tenant which are pre- petition rents relating to a period prior to the
Closing Date shall be paid to Seller.
7.8 Security and Utility Deposits. At the Closing, Seller shall
furnish Purchaser with a schedule setting forth and certifying, as of the
Closing Date, the unapplied and unreturned portion of any security deposits
which have been deposited with Seller or its agents (or with any predecessor in
interest to Seller with respect to the Property or such predecessor's agents)
by any existing Tenants (the "SECURITY DEPOSITS") ($26,487.83 as of February
18, 1997) and the amount of any deposits on account with any utility company
servicing the Property that will continue for the benefit of Purchaser
following Closing ("UTILITY DEPOSITS") (currently $0), and Purchaser shall
receive a credit against the Purchase Price payable at Closing in the amount of
the Security Deposits, together with all interest, if any, accrued thereon and
required to be paid to Tenants. Purchaser shall reimburse Seller at Closing
for the amount of the Utility Deposits.
7.9 Collection of Rents.
(a) Purchaser shall use reasonable efforts to collect the
Collection Receivables and the Sales Based Tenant Charges which are payable
with respect to the Applicable Closing Fiscal Period and any prior fiscal
period, but Purchaser shall not be required to retain a collection agency,
commence litigation or commence an adversary proceeding in a bankruptcy case,
or terminate Leases or the DOA in connection with such collection efforts.
Reasonable attorneys' fees incurred for outside counsel in connection with such
collection efforts shall be charged to the parties hereto in the proportion in
which each is entitled to the proceeds of any such collection.
(b) Seller shall have the right to seek collection of any
Closed Receivables; provided, however, that in seeking to collect any such
Closed Receivables, Seller shall not be entitled to terminate any Lease or
either of the DOA or otherwise seek any remedy which could materially affect or
impact the Property or the ownership or operation thereof other than a money
judgment against the delinquent Party. Purchaser shall not be required to join
in any such actions or proceedings commenced by Seller unless the provisions of
any law, rule or regulation at the time in effect shall require that such
actions or proceedings be brought by and/or in the name of Purchaser, in which
event Purchaser shall join and cooperate in such actions or proceedings, at the
request of Seller, or permit the same to be brought by Seller in Purchaser's
name but Seller shall pay all costs and expenses relating thereto, including
without limitation reasonable attorneys' fees incurred for outside counsel in
reviewing pleadings and other materials filed in connection with such
litigation.
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(c) Notwithstanding anything to the contrary contained
herein, Purchaser shall have the right at any time on or after the Closing, and
whether or not its joinder shall be required as a matter of law, to join in, or
to be substituted for Seller in, any proceedings for the eviction of Tenants
and/or the collection of Rent which may have been instituted by Seller either
prior to or after the Closing, if the Tenant in question is still in possession
of the premises covered by its Lease and if, in connection therewith, Purchaser
intends to seek eviction of such Tenant, cancellation of the Lease or
repossession of the premises. If Purchaser joins in, or is substituted for
Seller as plaintiff in any such litigation, Purchaser shall, thereafter, assume
sole liability for all costs and expenses of such litigation, including legal
fees and expenses, as may thereafter be incurred (except as provided below) and
shall thereafter control all aspects of such proceedings, except that Purchaser
shall not be entitled to waive, reduce or otherwise compromise any claims for
Rent relating to any period prior to Closing other than in accordance with the
policies of Purchaser from time to time as to Rent deficiencies generally.
Seller in any event may, at its option, continue to participate in such
litigation. In any event, Seller shall reimburse Purchaser for a pro rata
portion of its reasonable attorneys' fees incurred for outside counsel in
connection with such collection efforts in proportion to, but in no event in an
amount greater than, the amount, if any, actually received by Seller after
Closing as a result of such proceedings; provided, however, Seller shall be
entitled to a credit for legal fees and expenses incurred by Seller prior to
the intervention by Purchaser in connection with the proceedings previously
instituted by Seller in connection with such collection efforts.
7.10 Insurance. The fire, hazard and other insurance policies
relating to the Property shall be canceled by Seller as of the Closing Date and
shall not, under any circumstances, be assigned to Purchaser. All unearned
premiums for fire and any additional hazard insurance premium or other
insurance policy premiums with respect to the Property shall be retained by
Seller.
7.11 The Indemnification Buffer Does Not Apply. The parties agree
with respect to the ongoing adjustments and amounts due to be paid by or to
either party pursuant to this Article VII, the Indemnification Buffer of
Section 11.6 does not apply.
ARTICLE VIII
Representations and Warranties
8.1 Seller's Representations and Warranties. Seller represents
and warrants to Purchaser as follows:
(a) Seller is a general partnership under the laws of the
State of Alabama with full power and authority to execute, deliver and perform
this Agreement.
(b) The execution, delivery and performance of this
Agreement by Seller have been duly and validly authorized by all necessary
action on the part of Seller. This Agreement has been, and the Seller Closing
Documents will be, duly executed and delivered by Seller. This Agreement
constitutes, and when so executed and delivered the Seller Closing Documents
will constitute, the legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms.
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(c) None of the execution, delivery or performance of
this Agreement by Seller does or will, with or without the giving of notice,
lapse of time or both, violate, conflict with, constitute a default, result in
a loss of rights, acceleration of payments due or creation of any Lien upon the
Property or require the approval or waiver of or filing with any Person
(including without limitation any governmental body, agency or instrumentality)
under (i) the organizational documents of Seller or Xxxxxx Dairies, Inc. or,
except with respect to the terms of the mortgage indebtedness of Seller (which
mortgage indebtedness will be re-paid in full at Closing), any agreement,
instrument or other document to which Seller or any general partner of Seller
is a party or by which it is bound or (ii) any judgment, decree, order,
statute, injunction, rule, regulation or the like of a governmental unit
applicable to Seller or any general partner of Seller.
(d) Seller has or will obtain good and marketable title
to the Property free and clear of Liens other than the Permitted Exceptions and
those Liens to be released at Closing and, upon execution and delivery of the
Seller Closing Documents, Purchaser will have good and marketable title to the
Property free and clear of Liens other than the Permitted Exceptions and Liens
created by, under or through Purchaser.
(e) Schedule 8.1(e) is a rent roll of the Property (the
"RENT ROLL") as of February 18, 1997 showing the identification of each
rentable space in the Property, whether leased or not, and for each such space,
the name of the Tenant, the expiration date of the current term of the Lease,
the minimum or fixed monthly rent payable, the unapplied amount of any security
deposit held, all delinquencies in Rents, and all outstanding rent abatements.
[In addition, and without making a representation or warranty with respect
thereto, Seller is providing to Purchaser, as part of Schedule 8.1(e), reports
generated in the normal course of Seller's business which contain statements
concerning tenant allowances or other tenant concessions, renewal options, and
kickout clauses, but it is Purchaser's responsibility to satisfy itself as to
the accuracy of such reports by examination of the Estoppels or the Leases.]
Seller shall deliver an updated Rent Roll to Purchaser fifteen (15) days prior
to the Closing Date. All information therein is accurate as of its date.
Except as set forth to the contrary on Schedule 8.1(e), no Tenant has paid any
rent in advance except for the current month.
(f) Schedule 8.1(f) contains a complete and correct list
of all existing Leases and modifications thereof and supplements thereto
regardless of whether the terms thereof have commenced, setting forth with
respect to each (i) the date thereof and of each modification thereof and
supplement thereto and (ii) the names of the Parties thereto (including the
name of the current assignee, if any, but only if and to the extent Seller has
actual notice of any such assignment). A true and complete copy of each Lease,
together with each written modification thereof and supplement thereto, has
heretofore been furnished to Purchaser for inspection, or, in the event Seller
is not in possession of a true and complete copy of such Lease, it is so stated
on Schedule 8.1(f). Each such Lease constitutes the entire agreement between
Seller and each Party thereto, and neither Seller nor any predecessor in title
has made any oral promises or agreements amending or modifying the same.
(i) There are no leases executed by Seller or its
predecessors in title or other rights of occupancy or use granted by
Seller or its predecessors in title of any portion of the Property
other than the Leases. Each of the Leases is valid and subsisting and
in full force and effect, and no Rents or other payments or deposits
are held by Seller or Seller's agent, except the security deposits
described on the Rent Roll and Rents prepaid for the current
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month. As of the Closing Date, no Rents due under, or any other
interest in, any of the Leases will be assigned to any party other
than Purchaser, or otherwise pledged or encumbered in any way.
(ii) Except as set forth on Schedule 8.1(f), no Tenant has
made any written claim which has been received by Seller or, to
Seller's knowledge, has any other claim, whether or not in writing (A)
that Seller has defaulted in performing any of its obligations under
any of the Leases which has not heretofore been cured, (B) that any
condition exists which with the passage of time or giving of notice,
or both, would constitute any such default, (C) that such Tenant is
entitled to any reduction in, refund of, or counterclaim or offset
against, or is otherwise disputing, any Rents or other charges paid,
payable or to become payable by such Tenant, or (D) that such Tenant
is entitled to cancel its Lease or to be relieved of its operating
covenants thereunder; provided, however, that this representation does
not address whether any Tenant, pursuant to the express provisions of
a lease which has been delivered to Purchaser, may be at some future
time: (i) entitled to any reduction in, refund of, or counterclaim or
offset against any Rents or other charges paid, payable or to become
payable by such Tenant; or (ii) entitled to cancel its Lease or to be
relieved of its operating covenants thereunder.
(iii) With the exception of delinquencies in the payment of
Rents which are set forth on the Rent Roll, no material default exists
under any of the Leases on the part of the Tenant thereto. Seller is
not in default under the Leases.
(iv) There are no rent abatements or other tenant
concessions or inducements, including, without limitation, lease
assumptions or buy-outs, applicable to any of the Leases or any rights
to extend or renew any of such Leases except as set forth in the
Leases. There are no options or rights to renew, extend or terminate
the Leases, except as set forth in the Leases. Neither Seller nor any
predecessor in title has granted any rights, options or rights of
first refusal of any kind to any Tenant, which are currently in
effect, to purchase or to otherwise acquire the Property or any part
thereof or interest therein except as set forth in the Sears Lease.
All of the improvements to be constructed by the landlord under each
of the Leases, or as required under any collateral agreement, plans or
specifications related to the Leases, have been fully completed and
paid for.
(v) There are no leases encumbering the Xxxxxx Parcel
other than the Xxxxxx Ground Lease.
(g) There are no reciprocal easement agreements or
operating agreements encumbering the Property other than the DOA. A true and
complete copy of the DOA, to the extent same is in possession of Seller, has
heretofore been furnished to Buyer, together with each written modification
thereof and supplement thereto. The DOA constitutes the entire agreement
between Seller and each party thereto, and neither Seller nor any predecessor
in title has made any oral promises or agreements amending or modifying the
same.
(i) The DOA is valid and in full force and effect, and no
Rents or other payments or deposits are held by Seller or Seller's
agent, except the Rents prepaid for the current
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month. As of the Closing Date, no Rents due under, or any other
interest in, the DOA will be assigned to any party other than
Purchaser, or otherwise pledged or encumbered in any way.
(ii) Except as set forth on Schedule 8.1(g), Sears has not
made any written claim which has been received by Seller nor, to
Seller's knowledge, has any other claim, whether or not in writing (A)
that Seller has defaulted in performing any of its obligations under
the DOA which has not heretofore been cured, (B) that any condition
exists which with the passage of time or giving of notice, or both,
would constitute any such default, (C) that Sears is entitled to any
reduction in, refund of, or counterclaim or offset against, or is
otherwise disputing, any Rents or other charges paid, payable or to
become payable by Sears, (D) that Sears is entitled to cancel the DOA
or to be relieved of its operating covenants thereunder, or (E) that
there is a violation of any of the covenants, conditions or
restrictions contained in the DOA; provided, however, that this
representation does not address whether Sears, pursuant to the express
provisions of the DOA, may be at some future time: (i) entitled to any
reduction in, refund of, or counterclaim or offset against any Rents
or other charges paid, payable or to become payable by Sears; or (ii)
entitled to cancel the DOA or to be relieved of its operating
covenants thereunder .
(iii) No material default exists under the DOA on the part
of the Sears. Seller is not in default under the DOA.
(iv) There are no rent abatements or other concessions or
inducements, including, without limitation, lease assumptions or
buy-outs, applicable to the DOA or any rights to extend or renew the
DOA except as set forth in the DOA. There are no options or rights to
renew, extend or terminate the DOA, except as set forth in the DOA.
Neither Seller nor any predecessor in title has granted any rights,
options or rights of first refusal of any kind to Sears, which are
currently in effect, to purchase or to otherwise acquire the Property
or any part thereof or interest therein, except as set forth in the
DOA or in the Leases. All of the improvements to be constructed by
the developer or owner under the DOA, have been fully completed and
paid for.
(h) Schedule 8.1(h) contains a true and complete list of
all Contracts, including all modifications thereof. To Seller's knowledge,
there have been no material defaults by any Party to a Contract which have not
heretofore been cured. There has been no material default (without giving
effect to any notice and cure rights) by Seller under any Contract or any claim
received by Seller of any such default by any party thereto, which has not
heretofore been cured except as set forth on Schedule 8.1(h). A true and
complete copy of each Contract, together with any amendments or supplements
thereto, has been delivered or made available to Purchaser. Such documents
constitute the entire agreement between Seller and each Party to the Contracts
and neither Seller nor Seller's predecessor in title have entered into any oral
promises or agreements amending or modifying the same.
(i) Schedule 8.1(i) contains a list of all permits and
licenses currently maintained with respect to the Property. Seller has not
received any notice of violation from any federal, state or municipal entity
that has not been cured or otherwise resolved to the satisfaction of such
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governmental entity, except as set forth on Schedule 8.1(i). To Seller's
knowledge, the permits and licenses listed on Schedule 8.1(i) are all of the
licenses and permits which are required for the present use of the Property.
(j) Neither Seller (nor Seller's predecessor in title,
nor any of Seller's general partners) nor, to Seller's knowledge, any other
Person has caused or permitted (knowingly, as to Seller or its predecessor in
title) any Hazardous Material to be maintained, disposed of, stored, released
or generated on, under or at the Property or any part thereof or any real
property adjacent thereto except for the storage and use of substances commonly
present at or used in the operation and maintenance of shopping centers in
quantities commonly present at shopping centers and in compliance with
applicable laws, including, without limitation, Environmental Laws. To
Seller's knowledge, Seller is in compliance with, and has heretofore complied
with, all Environmental Laws with respect to the Property and, to Seller's
knowledge, all other occupants of the Property are and have been in compliance
with the Environmental Laws, except as set forth on Schedule 8.1(j). Neither
Seller nor any predecessor in title has received any notice from any
governmental unit or other person that it or the Property is not in compliance
with any Environmental Law or that it has any liability with respect thereto
and there are no administrative, regulatory or judicial proceedings pending or,
to the knowledge of Seller, threatened with respect to the Property pursuant
to, or alleging any violation of, or liability under any Environmental Law,
except as set forth on Schedule 8.1(j). Except as set forth on Schedule
8.1(j), neither Seller nor any predecessor in title has installed any
underground or above ground storage tanks on, under or about the Property and,
to Seller's knowledge, no such tanks are located on, under or about the
Property. To Seller's knowledge, there is no facility located on or at the
Property that is subject to the reporting requirements of Section 312 of the
Federal Emergency Planning and Community Right to Know Act of 1986 and the
federal regulations promulgated thereunder (42 U.S.C. Section 11022).
(k) Except as set forth in the Leases or in the By-laws
of Century Plaza Merchants Association, Inc. attached hereto as Schedule
8.1(k), neither Seller nor any predecessor in title is under obligation to make
contributions or otherwise provide assistance to any promotional association or
promotional fund or has customarily in the past made or provided any such
contributions or assistance. The promotional association established with
respect to the Property (the "Promotional Association") is an independent
association established by and on behalf of the Tenants. Seller has remitted
to the Promotional Association any amounts received by it from Tenants and
other Parties that constitute contributions to the Promotional Association.
(l) Except as provided in Schedule 8.1(l), there is no
litigation, including any arbitration, investigation or other proceeding by or
before any court, arbitrator or governmental or regulatory official, body or
authority which is pending or, to Seller's knowledge, threatened against Seller
or any of Seller's general partners relating to the Property or the
Transactions, there are no unsatisfied arbitration awards or judicial orders
against Seller or any of Seller's general partners and, to Seller's knowledge,
there is no basis for any such arbitration, investigation or other proceeding.
Copies of all pleadings and other documents furnished or made available by
Seller to Purchaser with respect to the litigation described on Schedule 8.1(l)
are true, accurate and complete in all respects.
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(m) No condemnation proceeding or other proceeding or
action in the nature of eminent domain is pending with respect to all or any
part of the Property and, to Seller's knowledge, no Taking is threatened with
respect to all or any part of the Property.
(n) The Property is an independent unit which does not
now rely on any facilities (other than facilities covered by Permitted
Exceptions or facilities of municipalities or public utility and water
companies and other than parking areas which the Property makes use of under
the DOA) located on any property not included in the Property to fulfill any
municipal or governmental requirement or for the furnishing to the Property of
any essential building systems or utilities, including but not limited to,
water, electrical, plumbing, mechanical and heating, ventilating and air
conditioning systems, drainage facilities, catch basins and retention ponds,
sewage treatment facilities and the like, unless recorded easements or other
rights are in effect for the benefit of the Property for the continued use and
benefit thereof. Except as may be covered by the Permitted Exceptions
(including, without limitation, the DOA), no building or other improvement not
included in any part of the Property relies on any part of the Property to
fulfill any governmental or municipal requirement or to provide facilities to
such building or improvement for any essential building systems or utilities,
including, without limitation, electrical, plumbing, mechanical, sewage
treatment or heating, ventilating and air conditioning facilities or services.
(o) Copies of current real estate tax bills with respect
to the Property, other than tax bills sent to Tenants who have the obligation
to pay such taxes to the collecting authority, have been delivered or made
available to Purchaser. Except as set forth on Schedule 8.1(o), no portion of
the Property comprises part of a tax parcel which includes property other than
property comprising all or a portion of the Property. No application or
proceeding is pending with respect to a reduction or an increase of such taxes.
There are no tax refund proceedings relating to the Property which are
currently pending. Seller has not been notified of any special tax or
assessment to be levied against the Property or any change in the tax
assessment of the Property.
(p) Neither Seller nor any of Seller's general partners
have received notice that there is, and to Seller's knowledge there does not
now exist, any violation of any restriction, condition or agreement contained
in any easement, restrictive covenant or any similar instrument or agreement
affecting the Property or any portion thereof.
(q) Except as set forth on Schedule 8.1(q), neither
Seller nor any of its general partners have received (i) any written notice
from any governmental authority having jurisdiction over the Property of, and
to Seller's knowledge there does not exist, (A) any violation of any law,
ordinance, order or regulation (including the Americans with Disabilities Act)
affecting the Property, or any portion thereof, which has not heretofore been
complied with or (B) any other obligation to any such governmental authority
for the performance of any capital improvements or other work to be performed
by Seller in or about the Property or donations of monies or land (other than
general real property taxes) which has not been completely performed and paid
for; or (ii) any written notice from any insurance company, insurance rating
organization or Board of Fire Underwriters requiring any alterations,
improvements or changes at the Property, or any portion thereof, which has not
heretofore been complied with.
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(r) No approval, consent, waiver, filing, registration or
qualification with any third party, including, but not limited to, any
governmental bodies, agencies or instrumentalities is required to be made,
obtained or given for the execution, delivery and performance of this Agreement
or any of the Seller Closing Documents by Seller.
(s) Schedule 8.1(s) contains a true and accurate list of
all Seller's policies of insurance with respect to the Property, which policies
are and will be kept in full force to and including the Closing Date. All
premiums for such insurance have been paid in full. To Seller's knowledge,
Seller has not performed, permitted or suffered any act or omission which would
cause the insurance coverage provided in said policies to be reduced, canceled,
denied or disputed and Seller has not received (and has no knowledge of) any
notice or request from any insurance company or Board of Fire Underwriters (or
organization exercising functions similar thereto) canceling or threatening to
cancel any of said policies or denying or disputing coverage thereunder.
(t) Except as set forth in Schedule 8.1(t), to Seller's
knowledge, none of the Tenants now occupying any of the Property or having a
current Lease affecting the Property is the subject of any bankruptcy,
reorganization, insolvency or similar proceedings or has ceased or reduced or
intends to cease or reduce operations at the Property (other than temporarily
due to casualty, remodeling, renovation or similar cause).
(u) Except as set forth in Schedule 8.1(u), to Seller's
knowledge, there are no material structural or other material physical defects
in the Improvements or any component or system of the Improvements. Seller is
aware of certain settling of the Building as set forth on Schedule 8.1(u).
(v) The Financial Statements are consistent with the
books and records and accounts of Seller and fairly present the financial
condition and results of operations of Seller as of the dates thereof and for
the periods referred to therein, and, except for the absence of footnotes and
subject to normal year-end accruals, the Financial Statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied throughout the periods indicated. Since December 31,
1996, Seller has conducted its business in the ordinary course consistent with
past practice and there have been no material adverse changes in the financial
condition of such business.
(w) There are no collective bargaining or union
agreements with respect to the employees at the Property. Except for Seller's
401(k) profit sharing plan, neither Seller nor any predecessor in title
maintains or sponsors any employee benefit plan, including, without limitation,
any plans subject to the Employer Retirement Income Security Act of 1974, as
amended. There are no pending claims or, to Seller's knowledge, any threatened
claim against Seller or any predecessor in title to the Real Property by any
employee whose employment related to the Property. Seller has fewer than one
hundred (100) employees.
(x) To Seller's knowledge, the conduct of Seller's
business does not infringe upon the patents, trademarks, copyrights or other
intellectual property rights of any third party, and, to Seller's knowledge, no
third parties are currently infringing upon the patents, copyrights, trademarks
or other intellectual property rights of Seller. Without limiting the
generality of the foregoing,
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neither Seller nor any predecessor in title has granted to any person a license
or other right to use the name "Century Plaza Mall".
(y) No broker, finder, investment banker or other person
is entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Seller or
its general partners.
(z) To Seller's knowledge, there is no bulk sales notice
required in connection with the transfer of the Property to Purchaser.
(aa) All of the documents and Books and Records that have
been delivered or made available to Purchaser by or on behalf of Seller, are
true, correct and complete copies of what they purport to be and have not been
modified or amended, except as specifically noted therein. All information set
forth in the exhibits and schedules to this Agreement is true, correct and
complete in all material respects and not misleading. Seller does not have any
actual knowledge of any significant adverse fact or condition relating to the
Property, which has not been specifically disclosed in writing by Seller to
Purchaser.
(bb) There are no valid gift certificates outstanding
which have been issued by Seller.
8.2 Purchaser Representations and Warranties. Purchaser
represents and warrants to Seller as follows:
(a) Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full right, power and authority to execute, deliver and perform
this Agreement.
(b) The execution, delivery and performance by Purchaser
of this Agreement have been duly and validly authorized by all requisite action
on the part of Purchaser. This Agreement has been, and the Purchaser Closing
Documents will be, duly executed and delivered by Purchaser. This Agreement
constitutes, and when so executed and delivered the Purchaser Closing Documents
will constitute, the legal, valid and binding obligations of Purchaser,
enforceable against it in accordance with their terms.
(c) None of the execution, delivery or performance of
this Agreement or the Purchaser Closing Documents by Purchaser does or will,
with or without the giving of notice, lapse of time or both, violate, conflict
with, constitute a default or result in a loss of rights under or require the
approval or waiver of or filing with any Person (including without limitation
any governmental body, agency or instrumentality) under (i) the organizational
documents of Purchaser or any material agreement, instrument or other document
to which Purchaser is a party or by which Purchaser is bound or (ii) any
judgment, decree, order, statute, injunction, rule, regulation or the like of a
governmental unit applicable to Purchaser.
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(d) No broker, finder, investment banker or other person
is entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of
Purchaser.
ARTICLE IX
Conditions to Closing
9.1 Conditions to Seller's Obligations. Seller's obligation to
close is subject to satisfaction of each of the following conditions (any of
which may be waived by Seller in its sole discretion):
(a) Compliance with Agreement. On the Closing Date, all
of the covenants and agreements to be complied with or performed by Purchaser
under this Agreement on or before the Closing shall have been complied with or
performed in all material respects.
(b) Accuracy of Representations and Warranties. The
representations and warranties made by Purchaser in this Agreement shall be
true and complete in all material respects on and as of the Closing Date
(without regard to supplementation in accordance with Section 10.2 and other
than with respect to events or developments permitted hereunder or as to which
Seller has otherwise consented in writing).
(c) No Other Termination. No termination of this
Agreement by Seller or Purchaser shall have occurred pursuant to any other
provision hereof.
(d) No Litigation. At Closing, there is no litigation,
including any arbitration, investigation or other proceeding, pending by or
before any court, arbitrator or governmental or regulatory official, body or
authority nor any decree, order or injunction issued by any such court,
arbitrator or governmental or regulatory official, body or authority and
remaining in effect which does or is likely to prevent or hinder the timely
consummation of the Closing or materially and adversely affect the Property.
9.2 Conditions to Purchaser's Obligations. Purchaser's obligation
to close is subject to satisfaction of each of the following conditions (any of
which may be waived by Purchaser in its sole discretion):
(a) Compliance with Agreement. On the Closing Date, all
of the covenants and agreements to be complied with or performed by Seller
under this Agreement on or before the Closing shall have been complied with or
performed in all material respects.
(b) Accuracy of Representation and Warranties. The
representations and warranties made by Seller in this Agreement shall be true
and complete in all material respects on and as of the Closing Date (without
regard to supplementation in accordance with Section 10.2 and other than with
respect to events or developments permitted hereunder or as to which Purchaser
has otherwise consented in writing).
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(c) Estoppels Obtained. The unmodified Estoppels (or so
many of the unmodified Estoppels as are required to satisfy the conditions of
Section 10.3, provided Seller delivers at Closing a Tenant Estoppel executed by
Seller for each Missing Tenant) shall have been obtained in accordance with
Section 10.3.
(d) Contract Party Consents Obtained. The Contract Party
Consents shall have been obtained.
(e) Issuance of Title Policy. The Title Company shall
have issued, or be irrevocably committed to issue, the Title Policy.
(f) No Other Termination. No termination of this
Agreement by Purchaser or Seller shall have occurred pursuant to any other
provision hereof.
(g) No Litigation. At Closing, there is no litigation,
including any arbitration, investigation or other proceeding, pending by or
before any court, arbitrator or governmental or regulatory official, body or
authority nor any decree, order or injunction issued by any such court,
arbitrator or governmental or regulatory official, body or authority and
remaining in effect which does or is likely to prevent or hinder the timely
consummation of the Closing or materially adversely affect the Property or the
business of Seller.
(h) Xxxxxx Ground Lease. On or before the Closing Date
or at the Closing, the Xxxxxx Ground Lease and all rights of the parties
thereunder shall be terminated.
ARTICLE X
Additional Covenants
10.1 Conduct of Business Pending Closing. From the date hereof
until the Closing, Seller shall (a) use commercially reasonable efforts to
maintain, for the benefit of Purchaser following the Closing, the goodwill of
Tenants, prospective tenants, vendors and other parties having business
relations with Seller; (b) pay its debts (or in good faith contest the same)
and perform its obligations as they become due; (c) maintain the Property in
the same manner and condition that exists on the date hereof, as such condition
shall be altered by reason of Casualty, Taking and/or normal wear and tear,
including, without limitation, preparation of all necessary statements and
xxxxxxxx for Rents, Adjustable Tenant Charges and Sales Based Tenant Charges
for which Seller would normally prepare in the ordinary course of its business
prior to the Closing Date; (d) not, without the express written consent of
Purchaser, which shall not be withheld unreasonably, (it being agreed that it
shall be unreasonable for Purchaser to withhold its consent to any transaction
recommended by General Growth Management, Inc.) (i) enter into any new or
additional Lease, or extend, renew or modify, consent to any assignment of or
sublease in respect of, or waive any material right under any Lease, other than
renewals or extensions resulting from the exercise by a Tenant of a currently
existing renewal or extension option, (ii) cancel or terminate any Lease or
take any action to enforce any Lease which would have the effect of canceling
or terminating the same, (iii) enter into a new reciprocal easement or similar
agreement or amend or modify, consent to the assignment of or waive any
material right under the DOA, (iv) make any material alterations to the
Property (other than are
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necessary and consistent with prudent management of the Property) or enter into
any new contracts or extend or renew or cancel any Contract relating to
capital expenditures, (v) enter into any other material new contracts or
extend, renew or cancel, consent to the assignment of or waive any material
right under any other Contract, except for contracts executed in the ordinary
and usual course and business and in accordance with past practices and
policies which can be terminated without penalty or payment upon not more than
thirty (30) days prior notice, (vi) except as permitted under (i) above sell,
transfer, exchange, further encumber or grant interests (including easements)
in the Property or any part thereof or engage in negotiations or discussions
with, or otherwise solicit or assist, any third party relating to the
acquisition by such third party of the Property or the equity interests in
Seller, and (vii) otherwise take any action which could or would render
inaccurate any of the representations or warranties made by Seller in this
Agreement; and (e) otherwise operate the Property in the ordinary course
consistent with current practice.
10.2 Supplemental Disclosure. From the date hereof through
Closing, each of Seller and Purchaser shall have the continuing obligation to
timely supplement or amend the Schedules with respect to the representations
and warranties made by it to reflect any matter hereafter arising or discovered
which, if existing or known at the date hereof, would have been required to be
set forth herein or described thereon. Without limiting the foregoing, if any
Leases or Contracts, or amendments thereto, are hereafter entered into in
accordance with the terms of this Agreement, Seller shall give Purchaser
adequate and timely written notice thereof and the appropriate exhibits or
schedules hereto shall be updated and amended accordingly.
10.3 Estoppel Certificates. Within five (5) days after the
Execution Date, Seller shall deliver to Purchaser, an estoppel certificate
prepared for execution by each Anchor, by Sears (with respect to the DOA) and
by the Tenants other than the Anchors, on the form attached hereto and
incorporated herein as EXHIBIT F-2 for Tenants, or a form reasonably equivalent
thereto (a "TENANT ESTOPPEL") (the Tenant Estoppels are hereinafter
collectively referred to as the "ESTOPPELS"), or in the form as provided in
such Tenant's Lease. On or before the date that is ten (10) days prior to the
expiration of the Inspection Period, Purchaser shall notify Seller in writing
with respect to any objections Purchaser may have to the Estoppels. Unless
Purchaser sends such a disapproval notice within such time period, Purchaser
shall be deemed to have approved the form of the Estoppels. On or before the
date that is ten (10) days prior to the Closing Date, Seller shall furnish to
Purchaser, the Estoppels completed by each Anchor, by Sears (with respect to
the DOA) and by not less than ninety percent (90%) of the Tenants other than
the Anchors, on the form approved by Purchaser as hereinabove provided. If
Seller has not obtained an unmodified Tenant Estoppel from all Tenants but has
obtained an unmodified Tenant Estoppel from Sears and all Anchors and eighty
percent (80%) of all other Tenants (the Tenants from whom Tenant Estoppels have
not been obtained being herein called the "MISSING TENANTS"), Seller in its own
capacity shall have the right, at Seller's sole option, to satisfy the
condition of this Section 10.3 with respect to the Tenant Estoppel from each
Missing Tenant by executing and delivering to Purchaser at Closing a Tenant
Estoppel for such Missing Tenant in the form approved by Purchaser (with
appropriate changes to such form to reflect that Seller and not such Missing
Tenant is signing such Tenant Estoppel), which Tenant Estoppel will be released
upon delivery of a Tenant Estoppel from such Missing Tenant. Each Tenant
Estoppel or Seller's Estoppel for a missing Tenant shall be on the form
approved by Purchaser (or with appropriate changes to such form to reflect that
Seller and not such Missing Tenant is signing
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such Tenant Estoppel), and if there are modifications thereto, may be rejected
in Purchaser's sole discretion.
10.4 Contract Party Consents. Seller shall obtain from each of the
Parties to the Contracts listed on Schedule 8.1(h) a consent to the transfer or
assignment of such Contract from Seller to Purchaser (the "CONTRACT PARTY
CONSENTS").
10.5 Employment and Labor Matters. Seller shall comply with all
requirements of applicable laws and regulations in connection with Seller's
employees, and Seller shall pay or cause to be paid to such employees all
wages, payments and benefits due or to become due to such employees with regard
to the time such employees are employed by Seller.
10.6 Record Retention. After the Closing, Purchaser shall provide
Seller with reasonable access to the Books and Records and, at Seller's cost,
copies of all or any portion thereof. Purchaser either shall retain the Books
and Records at an office located in Birmingham, Alabama until the seventh
anniversary of the date hereof or notify Seller of its desire to dispose of the
Books and Records and turn them over to Seller if Seller so requests.
10.7 Publicity. In no event shall either Seller or Purchaser issue
any press release or otherwise disclose any non-public information regarding
this Agreement or the Transactions unless the other party has consented thereto
in writing (and Seller and Purchaser agree not unreasonably to withhold or
delay such consent) and to the form and substance of any such statement or
disclosure; provided, however, that nothing herein shall be deemed to limit or
impair in any way any party's ability to disclose the details of or information
concerning this Agreement, the Transactions or the Property to such party's
employees, attorneys, accountants or other advisors or to the extent such party
reasonably deems necessary or desirable pursuant to any court or governmental
order or applicable securities laws or regulations financial reporting
requirements, to obtain the Contract Party Consents, Estoppels or financing for
the acquisition of the Property and to assess the Property in connection with
Purchaser's due diligence examination (including without limitation contacting
Tenants and other Parties). Further, either party may disclose any information
regarding this Agreement or the Transactions to its direct or indirect
constituent partners, members or shareholders, as the case may be (and to
counsel for such constituent partners, members and shareholders) and as
otherwise necessary to comply with the terms of this Agreement. If for any
reason this Transaction is not consummated, Purchaser will timely return to
Seller all originals and copies of documents, reports and financial and other
information relating to the Property and to Seller which Seller has furnished
to Purchaser. The obligations of Seller and Purchaser under this Section 10.7
shall survive the termination hereof, however caused.
10.8 Assistance Following Closing. From and after the Closing,
Seller shall provide reasonable assistance to Purchaser in connection with the
preparation of financial statements and bills and the adjustment of losses and
claims and the enforcement or settlement of any such claims. Without limiting
the foregoing, Seller shall, upon the request of Purchaser from time to time,
provide signed representation letters with respect to revenues and expenses of
Seller if required under GAAS to enable Purchaser's accountants to render an
opinion on Purchaser's financial statements. Purchaser shall reimburse Seller
for its reasonable and actual out of pocket expenses incurred in complying with
this provision.
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10.9 Further Assurances. Each of Seller and Purchaser agree, at
any time and from time to time after the Closing, to execute, acknowledge where
appropriate and deliver such further instruments and other documents (and to
bear its own costs and expenses incidental thereto) and to take such other
actions as the other of them may reasonably request in order to carry out the
intent and purpose of this Agreement; provided, however, that neither Seller
nor Purchaser shall be obligated, pursuant to this Section 10.9 to incur any
expense of a material nature and/or to incur any material obligations in
addition to those set forth in this Agreement and/or its respective Closing
Documents.
10.10 Transfers to Seller. On or before the Closing Date, Seller
shall cause all Leases, Contracts, and the DOA to be transferred and assigned
to Seller so that Seller can properly assign the Leases, Contracts, and the
DOA in accordance with the terms of this Agreement.
ARTICLE XI
Indemnification
11.1 Indemnification by Seller. From and after the Closing, Seller
shall indemnify, defend and hold harmless Purchaser and its shareholders,
directors, officers, members, partners, employees, representatives and agents,
and their respective successors and assigns (collectively, the "INDEMNIFIED
PURCHASER PERSONS") from and against any Losses incurred or suffered by any
Indemnified Purchaser Person that results from, relates to or arises out of (a)
the breach or inaccuracy of any representation or warranty made by Seller in
this Agreement or the Seller Closing Documents, (b) the breach or
non-fulfillment by Seller of any of the covenants or agreements of Seller under
this Agreement or the Seller Closing Documents, (c) claims made by any Tenant
or Anchor under the Leases, any Party to the DOA under the DOA, or by any Party
under those Contracts assigned to Purchaser, that relate to any actions or
events first occurring, or obligations first accruing, prior to the Closing
Date, (d) any event, occurrence or accident at any time prior to the Closing
Date relating to the Property, or (e) Seller's Liabilities.
11.2 Indemnification by Purchaser. From and after the Closing,
Purchaser shall indemnify, defend and hold harmless Seller and its
shareholders, directors, officers, members, partners employees and agents, and
their respective successors and assigns (collectively the "INDEMNIFIED SELLER
PERSONS") from and against any Losses incurred or suffered by any Indemnified
Seller Person that results from, relates to or arises out of (a) the breach or
inaccuracy of any representation or warranty made by Purchaser in this
Agreement or the Purchaser Closing Documents, (b) the breach or non-fulfillment
by Purchaser of any of the covenants or agreements of Purchaser under this
Agreement or the Purchaser Closing Documents, (c) claims made by any Tenant or
Anchor under the Leases, any Party to the DOA under the DOA, or by any Party
under those Contracts assigned to Purchaser, that relate to any actions or
events first occurring, or obligations first accruing, on or after the Closing
Date, (d) any event, occurrence or accident at any time on or after the Closing
Date relating to the Property, or (e) the Assumed Liabilities.
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11.3 Indemnification Procedure.
(a) The indemnified party (the "INDEMNIFIED PARTY")
shall give the indemnifying party (the "INDEMNIFYING PARTY") adequate
and timely notice of any Losses incurred (or likely to be incurred) by the
Indemnified Party with respect to any claim or assertion of claims by a third
party ("THIRD PARTY CLAIM") for which indemnification is available hereunder
and the Indemnifying Party may (i) prior to the commencement of any proceedings
in connection with such Losses, undertake the negotiation of any resolution of
the dispute relating to such Losses, including without limitation any
settlement or release, or (ii) undertake the defense of any proceeding
(including any alternative dispute resolution proceeding) regarding such Losses
by selecting legal counsel who shall be reasonably acceptable to the
Indemnified Party.
(b) Provided the Indemnifying Party shall have undertaken
the Indemnified Party's defense of a Third Party Claim with legal counsel
reasonably acceptable to the Indemnified Party, and shall have so notified the
Indemnified Party, the Indemnified Party shall be entitled to participate at
its own expense in the aforesaid negotiation or defense of any claim relating
to such Losses (subject to reimbursement to the limited extent provided in
Section 11.3(d)), but such negotiations or defense shall be controlled by
counsel to the Indemnifying Party.
(c) The Indemnifying Party shall not be liable for
payments relating to the resolution of any dispute or any settlement of any
litigation or proceeding effected without the written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld. The
Indemnifying Party shall not, without the Indemnified Party's written consent,
resolve any dispute or settle or compromise any claim regarding Losses from a
Third Party Claim or consent to entry of any judgment which would impose an
injunction or other equitable relief upon the Indemnified Party or which does
not include as an unconditional term thereof the release by the claimant or the
plaintiff of the Indemnified Party from all liability in respect of any such
Losses.
(d) In the event the Indemnifying Party fails to timely
undertake negotiation of any dispute or defend, contest or otherwise protect
against any claim or suit with respect to a Third Party Claim, and to so notify
the Indemnified Party, the Indemnified Party may, but will not be obligated to,
defend, contest or otherwise protect against the same, and make any compromise
or settlement thereof and recover the entire costs thereof from the
Indemnifying Party, including reasonable attorneys' and experts' fees,
disbursements and all amounts paid as a result of such claim or suit or the
compromise or settlement thereof; provided, however, that if the Indemnifying
Party later undertakes negotiation of any dispute and the defense of such
matter in accordance with and subject to the above terms of this Section 11.3
after the Indemnified Party has undertaken to defend, contest or otherwise
protect against such claim, the Indemnified Party shall not be entitled to
recover from the Indemnifying Party for its costs incurred thereafter other
than the reasonable costs of completing investigations which were begun prior
to the time the Indemnifying Party undertook negotiation of such dispute and
the defense of such matter. The Indemnified Party shall cooperate and provide
such assistance as the Indemnifying Party may reasonably request in connection
with the negotiation of any dispute and the defense of the matter subject to
indemnification and the Indemnifying Party shall reimburse the Indemnified
Party's reasonable costs incurred thereafter in connection with such
cooperation and assistance.
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11.4 Indemnification Procedure; Other Claims. The Indemnifying
Party shall, promptly upon written notice and demand given by the Indemnified
Party, pay and reimburse the Indemnified Party for the amount of any
uncontested Loss paid or incurred by the Indemnified Party with respect to any
other claims for indemnification arising under Sections 11.1 or 11.2 hereunder
and which are not covered by Section 11.3 above with respect to Third Party
Claims.
11.5 Notice. Each party agrees to give the other party adequate
and timely notice of any Losses (or possible Losses) asserted against it which
might be Losses for which indemnity could be sought against the other party,
but the failure to give such notice shall not release the Indemnifying Party of
its obligations under Sections 11.3 and 11.4 hereof, except to the extent of
the actual harm suffered by the Indemnifying Party as a result of the
Indemnified Party's failure to give adequate and timely notice.
11.6 Indemnification Buffer. Notwithstanding anything to the
contrary contained in this Article XI, no indemnification hereunder shall be
available to the Indemnified Party against the Indemnifying Party until the
cumulative amount of any Loss exceeds One Hundred Thousand Dollars ($100,000)
(the "Threshold"); provided, that in such instance, the Indemnifying Party
shall be responsible to the Indemnified Party for the total amount of such
damages relating to such claims without regard to the Threshold, and provided,
further, that in the event such a claim is made, the other party may assert
claims for any Loss suffered by it which are less than the Threshold to offset
such claims made by the party originally seeking indemnification.
Indemnification available to an Indemnified Party as a result of the breach by
the Indemnifying Party of the provisions or covenants contained in Article VII
hereof shall not be subject to the Threshold and the provisions of this Article
11.6.
ARTICLE XII
Condemnation and Destruction
12.1 Casualty or Condemnation in General.
(a) If prior to the Closing Date the Property shall be
the subject of a Taking or Casualty, Seller shall timely inform Purchaser of
same.
(b) If prior to the Closing Date the Property shall be
the subject of a Substantial Taking or a Substantial Casualty, Purchaser may by
written notice delivered to Seller on or before the Closing Date, elect as its
sole remedy on account thereof, either (i) to terminate this Agreement, and the
rights of the parties hereto, in which event this Agreement (other than any
right or obligation that expressly survives the termination of this Agreement)
shall terminate as of the date of delivery of such notice and the Xxxxxxx Money
and all interest accrued thereon shall be immediately delivered to Purchaser;
or (ii) to continue this Agreement in effect, in which event Seller (A) shall
transfer and assign to Purchaser, at the Closing, its full right, title and
interest in and to any insurance proceeds (and shall pay in cash to Purchaser
all deductibles owing in respect thereof) or condemnation awards with respect
thereto, and shall cooperate in all reasonable respects with Purchaser, at
Purchaser's sole cost and expense, in connection with the collection thereof,
to the extent not collected at the Closing, and (B) to the extent any insurance
proceeds or condemnation awards shall have been received by
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Seller prior to the Closing, remit to Purchaser the full amount thereof so
collected, less, in each such case, (i) reasonable costs of collection thereof
(other than the cost of deductibles), and (ii) amounts, if any, applied by
Seller prior to Closing to the preservation, repair or restoration of the
Property.
(c) If prior to the Closing Date, the Property, or any
portion thereof, is (i) the subject of a Taking (other than a Substantial
Taking) or (ii) the subject of a Casualty (other than a Substantial Casualty),
this Agreement shall nevertheless remain in full force and effect with no
abatement of the Purchase Price to be delivered to Seller on account thereof
and Purchaser shall nevertheless acquire the Property or remaining balance
thereof pursuant to the provisions hereof. In such event, any insurance
proceeds or condemnation awards shall be applied and paid in the same manner
and subject to the same provisions set forth above as are applicable in a case
of a Substantial Casualty or a Substantial Taking as to which Purchaser has
elected nevertheless to continue this Agreement in effect.
12.2 Adjustment of Claims and Condemnation Proceedings. If a
Taking or Casualty shall occur, Seller shall initiate all actions required to
adjust, compromise and collect the awards payable by the condemning authority
or the proceeds payable under the applicable policy or policies of casualty
insurance. Purchaser shall have the right (but not the obligation) to
participate with Seller in the initiation of all such actions and, in any
event, Seller shall consult with, and keep Purchaser advised of, Seller's
progress in connection therewith. Seller shall not agree to any settlement of
the awards or insurance proceeds payable in connection with any such Taking or
Casualty (or enter into any agreement in lieu of a Taking) without Purchaser's
approval, which approval shall not be unreasonably withheld or delayed.
ARTICLE XIII
Miscellaneous
13.1 Survival. The representations, warranties and agreements of
Seller and of Purchaser set forth herein and in the Closing Documents or an
Estoppel for a Missing Tenant shall survive Closing indefinitely.
Notwithstanding the foregoing, the representations and warranties contained
herein or the Closing Documents (other than in the Estoppels for a Missing
Tenant), including the indemnities to the extent that they relate thereto,
shall survive Closing only for a period of two (2) years after the Closing Date
except as to Losses of which written notice has been given prior to the
expiration of such two (2) year period in accordance with the provisions of
this Agreement (the later of the expiration of such two (2) year period and the
date of resolution of all claims relating to such Losses, the "SURVIVAL
TERMINATION DATE"). Seller's general partners shall maintain a Net Worth of at
least $10,000,000 until the Survival Termination Date.
13.2 Notices. Notices must be in writing and sent to the party to
whom or to which such notice is being sent, by (a) certified or registered
mail, postage prepaid and return receipt requested, (b) commercial overnight
courier service, or (c) delivered by hand with receipt acknowledged in writing,
as follows:
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To Purchaser:
CENTURY PLAZA LLC
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
with a copy thereof to:
Xxxx, Gerber & Xxxxxxxxx
Two North LaSalle Street, Suite 2200
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
To Seller:
Century Management & Development Co.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: B. Xxxxxx Xxxxxxxxxx and Xxxxx X. Xxxxx
with a copy to:
W. Xxxxxxxx Xxxxxxx
Xxxx & Xxxxxx LLP
000 Xxxxx 00xx Xxxxxx
0000 XxxxxXxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
All notices (i) shall be deemed given when received or, if mailed as described
above with appropriate postage, after 5 business days and (ii) may be given
either by a party or by such party's attorneys. The cost of delivery shall be
borne by the party delivering the notice.
13.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single document when at least one counterpart has been executed
and delivered by each party hereto.
13.4 Amendments. Except as otherwise provided herein, this
Agreement may not be changed, modified, supplemented or terminated, except by
an instrument executed by the party hereto which is or will be affected by the
terms of such change, modification, supplement or termination.
13.5 Waiver. Each party shall have the right exercisable in its
sole and absolute discretion, but under no circumstances shall be obligated, to
waive or defer compliance by any other party with its obligations hereunder or
to waive satisfaction of any conditions contained herein for its benefit. No
waiver by any party of a breach of any covenant or a failure to satisfy any
condition shall be
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deemed a waiver of any other or subsequent breach or failure to satisfy any
other condition. All waivers of any term, breach or condition hereof must be
in writing.
13.6 Successors and Assigns. Subject to the provisions of Section
13.10, the terms, covenants, agreements, conditions, representations and
warranties contained in this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
13.7 Third Party Beneficiaries. The provisions of this Agreement
are made for the benefit of the parties hereto (and the Indemnified Purchaser
Persons and the Indemnified Seller Persons with respect to Sections 11.1 and
11.2), and their respective successors in interest and assigns and are not
intended for, and may not be enforced by, any other person or entity.
13.8 Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall be valid
and enforced to the fullest extent permitted by law.
13.9 Governing Law. This Agreement has been made pursuant to and
shall be governed by the laws of the State of Alabama (without regard to
conflicts of law rules).
13.10 Assignment. This Agreement may not be assigned or delegated
by any party without the written consent of the other except that Purchaser may
assign this Agreement to an Affiliate of Purchaser, it being acknowledged and
agreed by Purchaser that no such assignment shall relieve Purchaser of its
obligations under this Agreement.
13.11 Headings; Exhibits. The headings or captions of the various
Articles and Sections of this Agreement have been inserted solely for purposes
of convenience, are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
13.12 Gender and Number. Words of any gender shall include the
other gender and the neuter. Whenever the singular is used, the same shall
include the plural wherever appropriate, and whenever the plural is used, the
same also shall include the singular where appropriate.
13.13 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any prior written or oral understandings and/or agreement among them
with respect thereto.
13.14 Costs of Enforcement. In the event that any action is brought
by any party or parties to this Agreement against any other party or parties to
enforce rights under this Agreement, the prevailing party's or parties' costs
in such action, including reasonable attorneys' fees, shall be paid by the
other party or parties. Any amounts owing hereunder which are not paid when
due shall bear interest at the per annum rate equal to the prime rate of Bank
of America Illinois, N.A. (or any successor), as the same may change from time
to time, plus four percent.
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13.15 Time of the Essence. Time is of the essence with regard to
each provision of this Agreement. If the final date of any period provided for
herein for the performance of an obligation or for the taking of any action
falls on a Saturday, Sunday or banking holiday, then the time of that period
shall be deemed extended to the next day which is not a Sunday, Saturday or
banking holiday. Each and every day described herein shall be deemed to end at
5:00 p.m. Central Standard Time.
ARTICLE XIV
Xxxxxxx Money
14.1 Xxxxxxx Money Returned in Full to Purchaser. In the event that
the Closing shall not occur or this Agreement is terminated because of:
(i) the default of Seller;
(ii) the material inaccuracy or breach of any representation
or warranty of Seller;
(iii) the exercise by Purchaser of a termination right
pursuant to Section 3.2, 3.3, 4.6, 6.2, or 12.1 hereunder; or
(iv) the failure of either party to have been satisfied as to
any condition set forth in Article IX (other than a failure of
Purchaser to comply with or perform any of its covenants and
agreements in any material respect, or as the result of the
default of Purchaser or the material inaccuracy or breach of
any representation of warranty of Purchaser);
then, in any of such events, the full amount of the Xxxxxxx Money, together
with all interest thereon, shall be refunded to Purchaser. In the event of
such termination, this Agreement shall be null and void and all parties shall
be released from all further rights and obligations under this Agreement (other
than any right or obligation that expressly survives the termination of this
Agreement).
14.2 Xxxxxxx Money Paid Over in Full to Seller. In the event that
the Closing shall not occur or this Agreement is terminated because of any
default by Purchaser, which default is not cured within ten (10) days after
written notice thereof from Seller to Purchaser, the Xxxxxxx Money shall be
delivered to Seller as liquidated damages as Seller's sole and exclusive remedy
for any such default or breach hereunder and in lieu of any other consideration
for the exercise of such termination right, as the case may be, and all
interest thereon shall be paid to Seller. In the event of such termination,
this Agreement shall be null and void and all parties shall be released from
all further rights and obligations under this Agreement (other than any right
or obligation that expressly survives the termination of this Agreement).
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ARTICLE XV
Tax Free Exchange
15.1 1031 Exchange. Purchaser agrees to cooperate with Seller in
effecting a Section 1031 deferred like kind exchange (the "Exchange"). In
connection with the Exchange, Seller may assign its rights, but not its
obligations, under this Agreement to an intermediary (the "Intermediary") in
order to effect the Exchange, but Seller shall transfer the Property directly
to Purchaser. Purchaser shall, upon written request of Seller, pay all or any
portion of the Purchase Price to the Intermediary designated or appointed by
Seller to receive such proceeds. No such transaction shall affect the full and
timely performance by Seller of each and every one of the representations,
warranties, indemnities, obligations and undertakings of Seller pursuant to
this Agreement, and Seller shall remain the primary obligor with respect to
these representations, warranties, indemnities, obligations and undertakings,
and, in the event of breach, Purchaser may proceed directly against Seller
without the need to join Intermediary as a party to any action against Seller.
Seller shall bear all expenses related to such tax deferred exchange.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto on the day and year first above written.
SELLER:
CENTURY PLAZA COMPANY,
an Alabama general partnership
By: XXXXXX DAIRIES, INC., an Alabama
corporation, a general partner
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Title: Chairman
---------------------------------
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------------
Xxxxxx X. Xxxxxx, Xx. a general partner
PURCHASER:
CENTURY PLAZA L.L.C.,
a Delaware limited liability company
By: CENTURY PLAZA, INC.
a Delaware corporation,
a member
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
--------------------------
Title: Vice President
-------------------------
By: GGP LIMITED PARTNERSHIP,
a Delaware limited partnership,
a member
By: GENERAL GROWTH
PROPERTIES, INC.
a Delaware corporation,
its general partner
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
--------------------
Title: Vice President
--------------------
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LIST OF EXHIBITS AND SCHEDULES
Exhibits/Schedule Description
Exhibit A Legal Description of the Land
Exhibit B Form of Xxxxxxx Money Escrow Agreement
Exhibit C Form of Closing Escrow Agreement
Exhibit D Permitted Exceptions
Exhibit E Form of Seller's Counsel Opinion Letter
Exhibit F-1 Deleted
Exhibit F-2 Form of Estoppel Letter for Tenants
Schedule 1.1-1 Anchors
Schedule 1.1-2 Personalty
Schedule 2.2(a) Allocation of the Purchase Price
Schedule 7.4(a) Receivables List
Schedule 7.5. Proration and Adjustment Examples for Adjustable Tenant
Charges
Schedule 7.6 Proration Examples for Sales Based Tenant Charges
Schedule 8.1(e) Rent Roll
Schedule 8.1(f) Leases
Schedule 8.1(g) Claims under DOA
Schedule 8.1(h) Contracts
Schedule 8.1(i) Permits and Licenses
Schedule 8.1(j) Location of Underground Storage Tanks
Schedule 8.1(k) By-laws of Century Plaza Merchants Association, Inc.
(with Articles and Amendments
Schedule 8.1(l) Pending or Threatened litigation
Schedule 8.1(o) Property included in other tax parcel
Schedule 8.1(q) Matters concerning certain regulations
Schedule 8.1(s) Insurance Policies
Schedule 8.1(t) Bankruptcy Proceedings and Other Matters Affecting Parties
Schedule 8.1(u) Matters concerning certain building settling
Schedule 8.1(w) Liabilities relating to employees, etc.
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