Exhibit 1.1
AGREEMENT TO PURCHASE REAL ESTATE
In consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, this Agreement to Purchase Real Estate
("Agreement") is entered into by and between GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("GPLP"), EAST POINTE VENTURE, LLC,
a Delaware limited liability company, BARREN RIVER PLAZA, LLC, A Delaware
limited liability company, and RIVER VALLEY VENTURE, LLC, a Delaware limited
liability company, (each such company being referred to herein as "Seller" with
respect to those properties listed in Schedule 1 owned by it), each having
offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and 20/20 Management
Company, Inc., a Texas corporation ("Purchaser"), having offices at 00000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, this 6th day of June, 2002.
W I T N E S S E T H :
1. PREMISES. At the price and upon the terms, conditions, and
provisions herein contained, Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase from Seller, the shopping centers listed on the
SCHEDULE 1 attached hereto and made a part hereof, and legally described in the
EXHIBITS "A-1" THROUGH EXHIBIT "A-23" attached hereto and made a part hereof
(plus, if applicable, those additional shopping centers described in SECTION
2(d), below), including without limitation, the real estate upon which each such
shopping center is located, together with all right, title and interest of
Seller in any way belonging to or pertaining to or running with the real
properties, all easements, rights of way and other rights in property abutting,
adjacent, contiguous to or adjoining the real property (collectively, the "Real
Property"), all tangible and intangible personal property, contracts, leases,
licenses, permits, certificates of occupancy and other contractual rights, and
trade names and trade marks, plans, specifications, warranties, guaranties,
manuals, drawings, and any other items of Seller used by Seller in the
ownership, development, use, operation, leasing and management of the shopping
centers and the real property associated with the shopping centers
(collectively, the "Personal Property") (the Real Property and the Personal
Property are collectively referred to herein as the "Property").
2. PURCHASE PRICE.
(a) The purchase price for the Property shall be One Hundred
Ninety-three Million Five Hundred One Thousand Five Hundred Ninety-six and
no/100 Dollars ($193,501,596.00) ("Purchase Price") (increased, if applicable,
by the amounts specified in SECTION 2(d)). The Purchase Price shall be paid by
bank wire, at closing, and shall be subject to any prorations, adjustments, and
credits, as hereinafter stated. Purchaser shall receive a credit at Closing
against the payment of the Purchase Price in the amount of (i) the principal
amount of the existing indebtedness encumbering the Property, as described in
the EXHIBIT "B" attached hereto and made a part hereof (" Existing Loans"), (ii)
all deposits made by Purchaser prior to Closing in accordance with SECTION 4,
(iii) any net amount credited to Purchaser under SECTION 12 hereof, and (iv) as
may
otherwise be provided herein. In the event Purchaser closes on the purchase of
all of the properties it is required to purchase in accordance with the terms
and conditions of this Agreement, Seller shall also give Purchaser a credit
against the purchase price at closing in the amount of Three Million Dollars
($3,000,000.00). The balance of the Purchase Price, as adjusted, together with
all other amounts due from Purchaser, shall be payable in immediately available
funds at Closing. Purchaser shall make such payment by wire transfer to one or
more bank accounts, which Seller shall designate no later than two (2) business
days prior to the Closing Date.
(b) An independent engineering consultant mutually agreed upon by
Purchaser and Seller has estimated the costs to make repairs immediately
required (defined for purposes of this Agreement as repairs required to be
completed within calendar year 2002) to the roofs of each of the twenty-three
(23) shopping center properties, in the total amount of One Hundred Twenty-four
Thousand One Hundred Seventy-five and No/100 Dollars ($124,175.00) (the "Roof
Repair Costs"). Seller agrees to give Purchaser a credit at Closing in the total
amount of the Roof Repair Costs. In the event Purchaser is required by Section
2(d) below to purchase the two additional shopping centers, as described in
Section 2(d) below, Seller shall give Purchaser an additional credit for Roof
Repair Costs in the amount of Sixty Thousand Dollars ($60,000.00). Purchaser
acknowledges and agrees that it has completed environmental assessments of the
Property performed by Purchaser's independent consultants. Purchaser hereby
waives any objection to the Property based upon environmental conditions.
(c) The obligations of Purchaser and Seller under this Agreement with
respect to those properties identified on EXHIBIT "B" as having assumable loans
are expressly conditioned upon Purchaser obtaining the consent of the existing
lenders ("Existing Lenders") to assume the Existing Loans ("Existing Lenders'
Consents"). Seller has previously requested the Existing Lenders' Consents from
the Existing Lenders, and has provided all Seller information requested by the
Existing Lenders. Purchaser agrees to provide all information reasonably
requested by the Existing Lenders within five (5) business days after receipt of
a written request therefore. In the event any Existing Lender Consent is not
obtained on or before the Closing Date, then this Agreement shall automatically
terminate with respect to the Property encumbered by such Existing Loan, the
Purchase Price shall be reduced by the fair market value of such Property, as
mutually determined by Seller and Purchaser, and Closing shall proceed with
respect to the remaining Property.
(d) In the event that, in conjunction with the approval of the
assumption of the Xxxxxxx National Life Insurance Company ("JNL"), JNL does not
agree to accept as substitute collateral the Seller properties known as Hunter's
Ridge, Gahanna, Ohio, and Xxxx'x Xxxxx, Columbus, Ohio (or such other substitute
collateral as Purchaser may propose and JNL may accept), for the properties
currently encumbered by the JNL Loan known as Sycamore Square in Ashland City,
Tennessee, and Southside Plaza in Sanford, North Carolina, then Purchaser agrees
to purchase Sycamore Square in Ashland City, Tennessee, for Four Million Four
Hundred Thirty-four Thousand Five Hundred Forty-one Dollars ($4,434,541.00), and
Southside Plaza in Sanford, North Carolina, for Eight Million Nine Hundred Three
Thousand Five Hundred Ninety-three Dollars ($8,903,593.00).
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3. INSPECTION OF PROPERTY.
(a) Purchaser acknowledges and agrees that it (i) is familiar with the
physical condition of the Property, and (ii) is acquiring the Property "AS IS"
based exclusively upon its own due diligence.
(b) Until the Closing Date Purchaser, and any of its authorized
representatives and agents, shall have the right to enter onto the Property,
subject to the conditions hereafter provided, for such investigations or
analyses Purchaser deems necessary. Any and all work for Purchaser's due
diligence investigations shall be performed at Purchaser's expense, without cost
or expense to Seller.
(c) Prior to entry on the Property by Purchaser or by any party to
conduct any survey, test, or inspection for or on behalf of Purchaser, a
certificate or other satisfactory evidence of liability insurance coverage for
said party shall be provided to Seller with coverage and in amounts satisfactory
to Seller. Purchaser shall protect, indemnify and hold Seller harmless from all
liability from injury to persons or Property or liens or actions for cost of
work arising out of the inspections, investigations and entry onto the Property
by Purchaser or by any representatives or agents of Purchaser.
(d) Purchaser acknowledges that it will have access to nonpublic
information of Seller and its affiliates, including, without limitation,
know-how, lists of existing and potential tenants, leases, agreements and
understandings with tenants and suppliers, the information supplied by or on
behalf of Seller pursuant to this SECTION 3 and business and financial
information, as well as information obtained from inspections of the Property
(all such information collectively, "Confidential Information"). Therefore,
Purchaser agrees to (i) keep confidential all Confidential Information of Seller
and its affiliates, (ii) not disclose any portion of the Confidential
Information in any manner without the prior written consent of Seller except to
its brokers, mortgage brokers, accountants, lawyers, prospective lenders,
prospective partners and any other professional involved in the Purchaser's due
diligence efforts, and (iii) use, and permit its representatives to use,
Confidential Information exclusively in connection with the transactions
contemplated by this Agreement Notwithstanding the foregoing, Purchaser may
disclose Confidential Information to its representatives if: (x) it first
informs the representative that the Confidential Information is confidential and
of the contents of this Section; and (y) the representative agrees in writing
with the Seller to abide by the terms of this Section. If Purchaser or any of
its representatives believes it is required by applicable law to disclose any
Confidential Information, Purchaser will promptly inform Seller and shall limit
the disclosure to that which is required by applicable law. In addition,
Purchaser shall not make any press release, public statement, or other
announcement regarding this Agreement or the transactions contemplated hereby
without the prior approval of Seller. For purposes of this Section, Confidential
Information shall not include information that is generally available to the
public, was known to Purchaser prior to the disclosure, or was independently
developed by Purchaser. In the event this Agreement is terminated or the within
transaction does not close, Purchaser shall, within five (5) business days,
return to Seller all copies of any such Confidential Information in the
possession of Purchaser, including any and all copies made by
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Purchaser of items received from Seller. Notwithstanding the foregoing,
Purchaser, with Seller's prior written consent, not to be unreasonably withheld,
shall be allowed to disclose such information as may be required in order to
organize and offer interests in a Real Estate Investment Trust (the "REIT"), to
list the REIT on a securities exchange, and to operate such REIT in compliance
with all applicable laws and all applicable requirements of such exchange.
4. DEPOSIT / EXTENSIONS OF CLOSING DATE.
(a) Seller acknowledges that Purchaser has deposited the sum of Two
Million Dollars ($2,000,000.00) (along with subsequent deposits, collectively
referred to as the "Deposit") with Flagler Title Company, 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000 ("Escrow Agent"), which Deposit
shall be non-refundable to Purchaser, but applicable against the Purchase Price.
Seller's obligations under this Agreement are expressly conditioned upon
Purchaser providing to Seller, within one (1) business day after the date of
full execution of this Agreement, a letter from GrenCorp Management Inc., to
Seller and the Escrow Agent, agreeing that the terms of GrenCorp's letter of May
23, 2002, to the Escrow Agent setting forth conditions with respect to the
making of such Two Million Dollar ($2,000,000.00) Deposit, are rescinded, and
that such Deposit shall be held by Escrow Agent in accordance with the terms of
this Agreement. This Two Million Dollars ($2,000,000.00) Deposit shall
immediately become non-refundable to Purchaser, and shall either be credited
against the purchase price at closing or paid to Seller by the Escrow Agent if
Purchaser does not close this transaction for any reason other than a failure by
Seller to close, and Purchaser hereby releases and discharges Seller from any
and all claims, demands, damages, actions and/or causes of action, whatsoever,
past, present of future, which can now or forever be asserted, whether known or
unknown, which arise or may arise out of or are in any way or in any manner
connected with or related to such Deposit. It is intended by Purchaser that the
foregoing constitute a covenant not to xxx in the event of the release of such
Deposit to Seller in accordance with this Agreement, except in the event of a
failure by Seller to close.
(b) Purchaser may extend the Closing Date from June 30, 2002, to August
31, 2002, by giving written notice to Seller, and depositing with the Escrow
Agent an additional Deposit in the amount of One Million Dollars ($1,000,000.00)
Deposit, on or before June 30, 2002, which additional Deposit shall be
non-refundable to Purchaser, but applicable against the Purchase Price. Such
additional Deposit shall immediately become non-refundable to Purchaser, and
shall either be credited against the purchase price at closing or paid to Seller
by the Escrow Agent if Purchaser does not close this transaction for any reason
other than a failure by Seller to close, and Purchaser hereby releases and
discharges Seller from any and all claims, demands, damages, actions and/or
causes of action, whatsoever, past, present of future, which can now or forever
be asserted, whether known or unknown, which arise or may arise out of or are in
any way or in any manner connected with or related to such Deposit. It is
intended by Purchaser that the foregoing constitute a covenant not to xxx in the
event of the release of such Deposit to Seller in accordance with this
Agreement, except in the event of a failure by Seller to close.
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(c) Purchaser may extend the Closing Date to September 30, 2002, by
giving written notice to Seller and depositing with the Escrow Agent an
additional Deposit in the amount of One Million Dollars ($1,000,000.00) on or
before August 31, 2002, which additional Deposit shall be non-refundable to
Purchaser, but applicable against the Purchase Price. Such additional Deposit
shall immediately become non-refundable to Purchaser, and shall either be
credited against the purchase price at closing or paid to Seller by the Escrow
Agent if Purchaser does not close this transaction for any reason other than a
failure by Seller to close, and Purchaser hereby releases and discharges Seller
from any and all claims, demands, damages, actions and/or causes of action,
whatsoever, past, present of future, which can now or forever be asserted,
whether known or unknown, which arise or may arise out of or are in any way or
in any manner connected with or related to such Deposit. It is intended by
Purchaser that the foregoing constitute a covenant not to xxx in the event of
the release of such Deposit to Seller in accordance with this Agreement, except
in the event of a failure by Seller to close.
(d) The Deposit(s) and any interest earned thereon shall be
non-refundable to Purchaser, except in the event of a failure by Seller to close
this transaction. Purchaser and Seller hereby agree as follows:
(i) At Closing, the Deposit and any interest earned shall
be applied against the Purchase Price;
(ii) If Purchaser fails to close this transaction for any
reason other than a failure by Seller to close, then
the Deposit and any interest earned thereon shall be
due and payable to Seller as liquidated damages
hereunder, and excepting the obligations of Purchaser
to indemnify and hold Seller harmless with respect to
any inspections of the Property under SECTION 3
above, Seller shall have no further rights against
the Purchaser.
(iii) Provided Purchaser has complied with all of the
obligations under this Agreement, if Seller fails to
close this transaction, other than as a result of a
willful failure or refusal to close (which is
addressed by the following sentence), Purchaser may,
as its sole and exclusive remedies, either seek
specific performance, or Purchaser may elect to
receive the return of Purchaser's Deposit and any
interest earned thereon and both parties shall be
relieved from further liability hereunder, except for
Purchaser's indemnity obligations arising from its
inspections of the Property. If and only if Seller
shall willfully fail or refuse to Close, Purchaser
may (i) enforce specific performance and recover any
additional expenses that Purchaser reasonably incurs
in seeking specific performance or that are otherwise
caused by Seller's nonperformance, or (ii) terminate
this Agreement, receive the return of Purchaser's
Deposit and any interest earned thereon, and recover
from Seller an amount equal to Purchaser's
out-of-pocket expenses incurred in connection with
this transaction, together with a reasonable
allowance for Purchaser's time and overhead
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invested in this transaction, not to exceed One
Million Twenty-five Thousand and No/100 Dollars
($1,025,000.00), in which case both parties shall be
relieved from further liability hereunder, except for
Purchaser's indemnity obligations arising from its
inspections of the Property. For purposes of this
SECTION 4(c), "willfully fail or refuse to close"
shall mean a failure or refusal by Seller to Close
when it is within Seller's power to do so, and there
exists no grounds under the Purchase Agreement for
Seller failing or refusing to Close.
5. TITLE. Purchaser acknowledges and agrees that it has reviewed and
agrees to accept title to the Property in its condition as shown on the most
recent title commitments received by Purchaser prior to the date of this
Agreement.
6. SURVEY. Purchaser acknowledges and agrees that it has reviewed
surveys for the Property and agrees that there are no survey matters shown on
such surveys to which Purchaser objects.
7. SERVICE CONTRACTS. Seller has delivered copies of all existing
service contracts or other agreements pertaining to the operation of the
Property to Purchaser (those so delivered referred to as the "Existing Service
Contracts"). Purchaser shall have the right to direct Seller to terminate at
Closing any Existing Service Contract that Seller has the right to terminate.
Seller shall terminate any such contracts effective as of the Closing Date. Any
Existing Service Contracts not so terminated shall be assigned by Seller and
assumed by Purchaser at Closing ("Permitted Existing Service Contracts").
8. RISK OF LOSS, INSURANCE AND CONDEMNATION. Seller shall have the risk
of loss for any damage or casualty to or affecting any part of the Property
until after Closing. If any Property suffers any such damage or casualty prior
to Closing, Purchaser shall have the option to close, without reduction in the
Purchase Price (except to the extent of any deductible amounts applicable to
such casualty), and receive the proceeds of any applicable insurance, or not
close on the damaged Property and deduct from the Purchase Price the fair market
value of such damaged Property, as mutually agreed to by Seller and Purchaser,
but close on the remainder of the Properties which have not been damaged.
If any Property is condemned or taken by public authority, in
whole or in part prior to Closing, Purchaser shall have the option to close on
the Property, without reduction in the Purchase Price, and receive any proceeds
of such condemnation or taking, or not close on the condemned Property and
deduct from the Purchase Price the fair market value of such Damaged Property,
as mutually agreed to by Seller and Purchaser, but close on the remainder of the
Properties which have not been condemned or taken.
9. DEED OF CONVEYANCE AND ASSIGNMENT OF LEASES. Seller shall convey to
Purchaser, at closing, good and marketable title, in fee simple, to the Property
by transferable and recordable special warranty deed, subject only to the
matters accepted under SECTION 5, above. At Closing, Seller shall also assign to
Purchaser, and Purchaser shall assume,
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all of Seller's right title and interest in and to the lease agreements with the
tenants of the Property, together with all of Seller's right, title and interest
in and to all deposits and any prepaid rent paid under any of the Leases. A
complete list of such tenants having leases for space in the Property, as of the
Effective Date, is set forth in the EXHIBITS "C-1" through EXHIBIT "C-23"
attached hereto and made a part hereof (with all amendments and modifications
thereto, the "Leases").
10. NOTICES. All notices shall be sent by (i) nationally recognized
overnight delivery service, or (ii) facsimile with a hard copy sent by a
nationally recognized overnight delivery service, postage prepaid, and, in
either case, shall be addressed:
(a) if to Seller, to Glimcher Property Limited Partnership, 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: General Counsel, Fax No.
000-000-0000; and
(b) if to Purchaser, to 20/20 Management Company, Inc., 00000 X.
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, XX 00, Xxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxx, Fax No. 000-000-0000.
Notices by facsimile shall be deemed given on the date of confirmation
of the successful transmission of the facsimile. In the case of notices sent by
delivery services, for purposes of determining whether the sender gave notice by
a certain deadline, the sender will be deemed to have given notice when such
notice was deposited with the courier service, prepaid and properly addressed
(provided that it is deposited with the courier service in time for that day's
final pickup), but for purposes of determining when a time period for the
recipient begins running, the recipient shall be deemed to have received notice
when the notice was actually delivered (or when delivery was first attempted, if
unsuccessful) by the courier service to the recipient's address. In the event
the deadline for the giving of any notice or the performing of any act hereunder
falls on a weekend or federal holiday, such deadline shall be extended until the
next business day.
11. CLOSING.
(a) This transaction shall be closed not later than June 30, 2002,
subject to extension as provided in SECTION 4 of this Agreement ("Closing Date")
by delivery of all required funds and documents through an escrow established by
the Escrow Agent. Notwithstanding any provision of this Agreement to the
contrary, if the Purchaser shall fail to close on its obligations under this
Agreement by the Closing Date due to a delay caused solely by Purchaser's lender
or any Existing Lender, then it shall not constitute a default by Purchaser
hereunder, and the Closing Date shall be extended for a reasonable period of
time until such lender delays are resolved, however in no event shall such
extension exceed seven (7) days.
(b) Escrow.
(i) The Deposit shall be invested in escrow in a sound
financial institution's money market fund or account, which pays interest or
dividends, in Escrow Agent's name
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separate from its personal and business accounts. All investment decisions shall
be made by Purchaser. Seller shall have no control over such investment
decisions. If no Closing occurs, all interest or dividends earned shall be paid
to the party entitled to the Deposit, which party shall pay any income taxes
thereon. The parties shall furnish the Escrow Agent with their respective tax
identification numbers. At the Closing all interest or dividends earned on the
Deposit shall be credited to Purchaser. All escrow fees, if any, charged by
Escrow Agent shall be equally shared by Seller and Purchaser.
(ii) The parties acknowledge that Escrow Agent is acting as a
stakeholder at their request and for their convenience, that Escrow Agent shall
not be deemed to be the agent of either of the parties, and the Escrow Agent
shall not be liable to either of the parties for any act or omission on its part
unless taken or suffered in bad faith or in willful or negligent disregard of
this Agreement. Seller and Purchaser shall jointly and severally indemnify and
hold Escrow Agent harmless from and against all costs, claims and expenses,
including reasonable attorneys' fees, incurred in connection with the faithful
performance of Escrow Agent's duties hereunder.
(iii) Escrow Agent acknowledges agreement to the provisions of
this Agreement applicable to it by signing on the signature page of this
Agreement.
12. ADJUSTMENTS AND PRORATIONS. All items of income and expense
applicable to the Property shall be paid, prorated or adjusted as of the close
of business on the day prior to the Closing Date in the manner hereinafter set
forth:
(a) Real Estate Taxes Assessments. Real estate taxes and
special assessments for the tax year in which the Closing occurs shall be
prorated as of the Closing Date based on the respective number of days of
ownership of Seller and Purchaser during such tax year, provided that Seller
shall not be obligated to credit Purchaser at Closing for real estate taxes paid
directly to the taxing authority by any tenant pursuant to its Lease, unless
such taxes are due and unpaid, or unless: (i) any such tenant is, on the Closing
Date, involved as a debtor ("Bankrupt Tenant") in any proceeding under Title 11
of the United States Code, as amended (Bankruptcy Act); or (ii) both Seller and
Purchaser have a good faith reason to believe that any taxes being paid directly
by any tenant to the taxing authority will not be paid by such tenant. In the
event Seller credits Purchaser at Closing under either of the foregoing
subsections (a)(i) or (a)(ii) for taxes that are payable directly to the taxing
authority by a tenant, and the tenant ultimately pays such taxes to the taxing
authority, then Purchaser shall reimburse to Seller the amount of the credit
that Purchaser received at Closing, within thirty (30) days after the date such
payment is received by the taxing authority.
(b) Rent. All collected rents and other payments from tenants
under the Leases shall be prorated between Seller and Purchaser as of the day
prior to the Closing Date. Seller shall be entitled to all rents (including any
percentage rent, additional rent and any accrued tax and operating expense
reimbursements and escalations), charges, and other revenue of any kind
attributable to any period under the Leases to but not including the Closing
Date. Purchaser shall be entitled to all rents (including any percentage rent,
additional rent and any accrued tax and operating expense reimbursements and
escalations) charges and other revenue of any kind
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attributable to any period under the Leases on and after the Closing Date. Rents
and expense escalations or other reimbursements due landlord under the Leases
prior to the Closing Date but not yet collected as of the Closing Date shall not
be prorated at the time of Closing, but Purchaser shall make a good faith effort
to collect the same on Seller's behalf and to tender the same to Seller upon
receipt (which obligation of Purchaser shall survive the Closing and not be
merged therein); provided, however, that all rents, escalations and other
reimbursements due landlord under the Leases collected by Purchaser on or after
the Closing Date shall first be applied to all amounts due under the Leases at
the time of collection (i.e., current rents and sums due Purchaser as the
current owner and landlord) with the balance (if any) payable to Seller, but
only to the extent of amounts delinquent and actually due Seller. Purchaser
shall not have an exclusive right to collect the sums due Seller under the
Leases and Seller hereby retains its rights to pursue any tenant under the
Leases for sums due Seller for periods attributable to Seller's ownership of the
Property; provided, however, that (i) Seller may not commence any legal
proceedings after the first anniversary of the Closing Date, and (ii) Seller
shall not be permitted to commence or pursue any legal proceedings against any
tenant seeking eviction of such tenant or the termination of the underlying
lease. Seller's rights under the immediately preceding sentence shall survive
the Closing and not be merged therein. Purchaser shall receive a credit against
the Purchase Price for pre-paid rentals held by Seller covering the period
post-Closing.
(c) Security Deposit and any interest earned thereon.
Purchaser shall receive a credit at Closing for all cash security deposits
reflected in the Leases to the extent that such deposits have not been applied
by Seller to cure tenants' defaults. Seller shall transfer to Purchaser all
non-cash security deposits at Closing (or as soon as reasonably practicable
after Closing, if the procedures for such transfer reasonably require a delay in
transfer until after the Closing. The provisions of this Section 12(c) shall
survive the Closing.
(d) Other Property Operating Expenses. Operating expenses for
the Property shall be prorated as of midnight of the day prior to the Closing
Date, to the extent the same are known as of such date. Seller shall pay all
utility charges and other operating expenses attributable to the Property to,
but not including, the Closing Date (except for those utility charges and
operating expenses payable directly by tenants in accordance with the Leases),
and Purchaser shall pay all utility charges and other operating expenses
attributable to the Property on or after the Closing Date. To the extent that
the amount of actual consumption of any utility services is not determined prior
to the Closing Date, a proration shall be made at Closing based on the last
available reading and post-closing adjustments between Purchaser and Seller
shall be made within twenty (20) days after the date that actual consumption for
such pre-closing period is determined, which obligation shall survive the
Closing and not be merged therein. Seller shall not assign to Purchaser any
deposits which Seller has with any of the utility services or companies
servicing the Property. Purchaser shall arrange with such services and companies
to have accounts opened in Purchaser's name beginning at 12:01 a.m. on the
Closing Date.
(e) Common Area Maintenance, Utility and Similar Charges. To
the extent tenants under Leases pay monthly estimates of common area
maintenance, utility and similar charges (collectively, "Charges") with an
adjustment at the end of each fiscal year for which Charges are payable, such
Charges shall be prorated in accordance with this paragraph (e). Until
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the adjustment described in this paragraph is made, all amounts received by
Seller as interim payments of Charges before the Closing Date shall be retained
by Seller (to the extent that such payments relate to periods prior to the
Closing Date), except that all interim payments received by either party for the
month in which the Closing Date occurs shall be prorated as between Seller and
Purchaser based upon the number of days in that month occurring before the
Closing Date, and the party receiving the interim payment shall remit to or
credit, as the case may be, the other party its proportionate share. All amounts
received by Purchaser as interim payments of Charges on or after the Closing
Date shall be retained for use by Purchaser until year-end adjustment and
determination of Seller's allocable share thereof. Within ninety (90) days after
the conclusion of the common area fiscal year, Seller's allocable share of
actual Charges for Leases in effect as of the Closing Date shall be determined
by multiplying the total payments received from tenants for such fiscal year
(consisting of the sum of estimated payments plus or minus year-end adjustments)
by a fraction (the numerator of which is Seller's actual costs of providing
common area maintenance services prior to the Closing Date, and the denominator
of which is the cost of providing such services for the entire fiscal year). If
any Lease provides for the adjustment of Charges on the basis of a period other
than the common area fiscal year, a reasonable method of calculating the
adjustment for that tenant shall be determined so that all adjustments can be
made at the same time. If, on the basis of charges for common area maintenance
services actually incurred by Seller and the estimated payments received by
Seller prior to the Closing Date, Seller has retained amounts in excess of its
allocable share, it shall remit such excess to Purchaser within fifteen (15)
days after notice from Purchaser of the excess owed Purchaser. If, on the basis
of the foregoing amounts, Seller has retained less than its allocable share,
Purchaser shall remit such amount to Seller within fifteen (15) days after
notice from Seller of the amount owed Seller, but only to the extent that such
amounts have been received from tenants. Seller's allocable share of any such
amounts that are due but not received by Purchaser shall be forwarded to Seller
within fifteen (15) days after receipt by Purchaser. Purchaser shall be entitled
to adjust any such payments to Seller in relation to any limitations or "caps"
on any such expenses asserted by tenants and reflected in their respective
leases, or any offsets against such expenses provided for in the respective
leases.
(f) Overage Rent. The following proration principles shall
apply to the proration of overage rents, whether finally determined before or
after the expiration of the relevant fiscal years under the respective Leases.
Overage rents shall be separately prorated under each Lease on the basis of the
fiscal year set forth in such Lease for the payment of overage rents. All
interim overage rent payments made before the Closing Date shall be retained by
Seller until year-end adjustment and determination of Seller's allocable share
thereof, except that interim payments received by either party for the month in
which the Closing Date occurs shall be prorated between Seller and Purchaser
based upon the number of days in that month occurring prior to the Closing Date,
and the party receiving the interim payment shall remit to or credit, as the
case may be, the other party its proportionate share for such month. At Closing
Purchaser shall provide to Seller security in a form of a guaranty from the fee
simple owner of each shopping center in a form reasonably acceptable to Seller
("Overage Rent Security") to ensure the payment to Seller of all overage rents
to which Seller will be entitled upon final proration of overage rents
("Seller's Overage Rent"), as provided below. All amounts received by Purchaser
on or after the Closing Date as interim payments of
10
overage rents shall be retained by Purchaser until year-end adjustment and
determination of Seller's allocable share thereof. Upon final determination of
overage rents collected from a tenant for the fiscal year under its Lease in
which the Closing Date occurs, Seller and Purchaser shall adjust between
themselves amounts collected for such fiscal year on account of overage rents,
and Seller's allocable share of such overage rents shall be equal to an amount
determined by multiplying total overage rents collected for such fiscal year by
a fraction whose numerator is the number of days in such fiscal year before the
Closing Date, and whose denominator is the total number of days in such fiscal
year. Purchaser shall furnish Seller with financial statements indicating the
sales and percentage rent figures for each tenant for all relevant periods.
Within fifteen (15) days after final determination of overage rents collected
from any tenant for the fiscal year in which the Closing Date occurs, Purchaser
shall remit to Seller its allocable share, less interim payments previously
retained by Seller, if any. If Seller has retained amounts in excess of its
allocable share, Seller, within fifteen (15) days after notice from Purchaser of
the excess owed Purchaser, shall remit such excess to Purchaser. Any overage
rents with respect to Leases terminated before the Closing Date shall belong
entirely to Seller, and Purchaser shall remit to Seller all payments to
Purchaser after the Closing Date on account of such overage rents. Any overage
rents with respect to Leases commencing on or after the Closing Date shall
belong entirely to Purchaser. If any overage rents are collected subsequent to
the year-end reconciliation between Purchaser and Seller which are allocable to
the year in which Closing occurs, the party collecting such amount shall
immediately pay the other party its allocable share thereof.
(g) Loans. Interest on the Existing Loans shall be prorated as
of midnight of the day prior to the Closing Date. At Closing, Purchaser shall
give Seller a credit in the amount of any funds then escrowed by Seller with
Lender, including, without limitation, all amounts held in tax, insurance,
repair, tenant rollover, or other escrows, so long as Lender retains such
escrowed funds for Purchaser's use and benefit.
(h) Miscellaneous. In the event any prorations or computations
made under this SECTION 12 are based on estimates that prove to be incorrect,
then either party shall be entitled to an adjustment to correct the same,
provided that it makes written demand on the party from whom it is entitled to
such adjustment within one hundred eighty (180) days after the end of the
calendar year in which the Closing occurs, or from the date the information
necessary to calculate such charge becomes known, whichever is later. For
purposes of calculating the prorations provided for in this Agreement, Purchaser
shall be deemed to be the owner of the Property on the Closing Date. Without
intending to limit the generality of the foregoing, promptly following the end
of the calendar year in which the Closing occurs, Seller and Purchaser shall
determine whether any tenant was charged an improper amount for its share of
operating expenses under its Lease during the period prior to Closing based on
the expenses paid by Seller and the tenant contributions collected and applied
against such expenses by Seller, and, in the event that such amount was
improper, Seller and Purchaser shall cooperate and either collect the
underpayment from the applicable tenants and pay such amounts to Seller, or
Seller shall refund the overpayments to the applicable tenants. Seller shall
have the right, at its sole cost and expense, to prosecute such legal action as
it deems necessary or advisable to collect any amounts due Seller pursuant to
the terms of the any Lease or this Agreement, provided that Seller shall not
have the right to bring any action to terminate the lease or tenancy of any
tenant. The
11
provisions of this SECTION 12 shall survive the closing of this Agreement.
13. CLOSING COSTS AND EXPENSES. Purchaser shall be responsible for all
title insurance endorsement costs (except those obtained by Seller to cure title
Defects), the cost of recording transfer documents, the costs of all state,
county and municipal real estate transfer taxes and fees, and one-half the
escrow fee. Seller shall be responsible for the cost of the title insurance
commitment and all premiums for a standard policy of title insurance, all costs
to obtain and record any corrective documents, the cost of survey updates
(provide such costs are approved in advance by Seller), all costs or fees
charged by the Existing Lenders in conjunction with the assumption of the
Existing Loans, and any documents for releasing any liens or encumbrances
against the Property that may be required, and one-half the escrow fee.
14. REPRESENTATIONS AND WARRANTIES. Seller hereby makes the following
representations and warranties to Purchaser. As of the Effective Date and,
except as provided hereinbelow, as of the Closing Date:
(a) There are no actions, suits, or proceedings pending or, to the best
of Seller's knowledge, threatened against the Seller with respect to the
Property or affecting any of its rights with relation to the Property, at law or
in equity, or before any federal, state, municipal, or other governmental agency
(including courts as well as administrative bodies), which would prevent Seller
from fulfilling its obligations under this Agreement, or that would materially,
adversely affect the Property after Closing.
(b) Except as set forth in the environmental site assessment(s) listed
in the Schedule II attached hereto and made a part hereof (the "Environmental
Report") a copy of which Seller will provide to Purchaser upon the full
execution of this Agreement, Seller has no actual knowledge, and has received no
written notice that the Property contains, or is contaminated with, any
Hazardous Material, as defined herein, which may require remediation or removal
under any applicable federal or state law, or that the Property has been used as
a Hazardous Material disposal facility. For purposes of this Agreement,
"Hazardous Material" means and includes any hazardous substance or any pollutant
or contaminant defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation, and Liability Act, any so-called
"Superfund" or "Superlien" law, the Toxic Substances Control Act, or any other
Federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material.
(c) At the time of Closing, there shall be no contracts, subcontracts,
arrangements, licenses, concessions, easements, or other agreements, that Seller
has entered into affecting all or any portion of the Property, or the use of it,
other than the Tenant Leases and the Permitted Existing Service Contracts.
Seller shall not enter into any new service contract not terminable on thirty
(30) days notice, or any other agreement affecting all or any portion of the
Property, or the use of it, which would extend beyond the Closing Date, without
the prior written consent of Purchaser, which consent will not be unreasonably
withheld or delayed. Notwithstanding any
12
provision of this Agreement to the contrary, Seller shall not enter into any new
lease or modify or terminate any existing lease ("New Lease") without
Purchaser's prior written consent, which consent shall not be unreasonably
withheld. Seller shall request Purchaser's consent to a New Lease by written
notice to Purchaser accompanied by a copy of Seller's internal Lease Order Form
setting forth the basic business terms. In the event Purchaser does not
disapprove the proposed New Lease by written notice given to Seller within three
(3) business days after receipt of Seller's request, then said New Lease shall
be deemed to have been approved by Purchaser. Purchaser agrees to pay any real
estate brokerage fee, and/or tenant allowance or improvement costs, payable
after the Closing Date with respect to any New Lease, and Seller shall pay any
real estate brokerage fee, and/or tenant allowance or improvement costs, payable
prior to the Closing Date with respect to any New Lease.
(d) To the best of Seller's knowledge, all of the Seller's right, title
and interest, in and to any permits, certificates of occupancy or other licenses
held by the Seller in connection with the ownership or operations of the project
(s) have been duly and validly issued, are in full force and effect, and the
Seller has not received written notice of any (i) material violations of
building codes and/or zoning ordinances or other governmental or regulatory
laws, ordinances, regulations, orders or requirements affecting the Property;
(ii) existing, pending or threatened condemnation proceedings affecting the
Property; or (iii) existing, pending or threatened zoning, building or other
moratoria proceedings, restrictive allocations or similar matters that could
materially, adversely affect Purchaser's use of the Property for its current
use.
(e) All rent rolls, financial statements, operating statements provided
to Purchaser by Seller have been prepared in the ordinary course of business and
to the best of Seller's knowledge and belief are accurate in all material
respects.
(f) The Leases are in full force and effect, and neither Seller or its
agents have entered into any agreements with any of the tenants except for the
Leases, or subordination, non-disturbance and attornment agreements or Landlord
lien subordination agreements that have been delivered to Purchaser, and except
as landlord and tenant Seller has no business relationship with any of the
tenants.
(g) Seller is not a party to any agreements currently in effect which
restrict the sale of the Property and Seller has the right, power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated by it; neither the execution and deliver of this Agreement nor the
consummation of the transactions contemplated by it nor the fulfillment of nor
the compliance with the terms, conditions and provisions of this Agreement will
conflict with or result in a material violation or breach of any other
instrument or Agreement of any nature to which Seller is a party or by which it
is bound or may be affected, or, to Seller's actual knowledge, with any relevant
law, or constitute (with or without the giving of notice of the passage of time)
a default under such an instrument or agreement; no consent, approval,
authorization or order of any person is required with respect to the
consummation of the transactions contemplated by this Agreement.
(h) Except as provided in Section 14(c) of this Agreement with respect
to New
13
Leases, there are no Tenant allowances or improvements applicable to any of the
Tenant Leases which are unpaid or unfulfilled, that will become Purchaser's
obligation after Closing.
(i) Except as provided in Section 14(c) of this Agreement, there are no
due and unpaid leasing commissions or broker's commissions that will become
Purchaser's obligation after the Closing Date.
(j) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986 , as amended, and the Income Tax Regulations
thereunder.
(k) Seller shall operate, maintain, repair, make replacements to, and
improve the Property in the ordinary course of business and in accordance with
its historic operating and capital budgets for the Property and other similar
properties that Seller will continue to own, up to, and including the date of
closing, subject to any provisions to the contrary in this Agreement.
(l) There is no other property that is not part of a shopping center
property that is taxed with such shopping center property.
(m) To the best of Seller's current knowledge, without obligation to
conduct additional investigation (i) no shopping center included in the Property
has any visible mold growing anywhere within the center, and any visible mold
previously discovered was remediated properly, and (ii) Seller has provided to
Purchaser (or will provide to Purchaser promptly after the execution of this
Agreement) Seller's records regarding any confirmed water leaks or water damage
in the Property, defined for purposes of this Agreement as any water leak
causing the pooling of water in a confined space, for a period of thirty (30)
days or more.
(n) No portion of the Hunter's Ridge Shopping Center is subject to a
Ground Lease to Seller.
(o) To the extent Seller has determined that adjustments were necessary
to its financial statements in connection with the annual reconciliation of
operating costs charged to and collected from tenants in the Property, Seller
made such adjustments to the account "Allowance for Doubtful Accounts" on the
balance sheet for the particular shopping center to which such adjustment
related. Seller has followed this accounting treatment on a consistent basis
each year for at least the last four fiscal years. Seller is not aware of any
financial statement accounts, either at the property level or, to the extent the
account relates directly to the Property, at the corporate level, that the
Purchaser has not had the opportunity to review.
If any event shall occur after the Effective Date, and before the
Closing Date, which is not caused by Seller ("Changed Circumstance"), that
renders untrue any such representation or warranty, it shall not constitute a
breach by Seller of such representation or warranty, and Seller's reaffirmation
of such representation or warranty at Closing may be qualified by such Changed
Circumstance. If Seller shall obtain knowledge of any Changed Circumstance,
Seller shall provide notice thereof to Purchaser within a reasonable period of
time. In the event Purchaser receives actual notice of any material Changed
Circumstance, whether from Seller or any other
14
source, including its own investigations, which is not cured by Seller within
ten (10) days after receipt of written notice from Purchaser, then Purchaser
shall have the right to terminate this Agreement with respect to the affected
Property, and deduct from the Purchase Price the fair market value of such
Property, as mutually agreed to by Seller and Purchaser, but close on the
remainder of the Properties. For purposes of this Agreement, a "material"
Changed Circumstance shall be one that causes Purchaser's lender to materially
change the terms of its loan commitment to Purchaser. Seller makes no other
representations or warrantees with respect to the condition of or fitness for
use of any of the existing improvements on the Property. All buildings,
fixtures, and other improvements on the Property shall be conveyed to Purchaser
by Seller in an AS-IS condition.
15. CONDITIONS PRECEDENT. Purchaser hereby waives any objection it may
have to the physical condition, title, survey, environment or financial status
of the Property as of the date of this Agreement. Notwithstanding anything to
the contrary contained herein or elsewhere, the following shall be conditions
precedent to Purchaser's obligation to Close (the "Conditions Precedent"):
(a) The truth and correctness of all of Seller's material
representations and warranties and the substantial
fulfillment of all of Seller's covenants at all times
during the term of this Agreement and as of Closing.
(b) There shall be no material adverse change in the
physical condition, title, survey, environment or
financial status of any Property between the date of
this Agreement (as reflected on the most recent
documentation thereof received by Purchaser prior to
the date of this Agreement) and the Closing Date. In
the event there is such a material, adverse change,
which is not cured by Seller within ten (10) days
after receipt of written notice from Purchaser, then
Purchaser shall have the right to terminate this
Agreement with respect to the affected Property, and
deduct from the Purchase Price the fair market value
of such Property, as mutually agreed to by Seller and
Purchaser, but close on the remainder of the
Properties.
(c) As a condition precedent to closing, Seller shall
provide a tenant estoppel certificate from each
"Major Tenant" (defined as those leasing twenty
thousand (20,000) or more square feet of space),
excluding tenants in bankruptcy, if any, and from
tenants occupying at least fifty percent (50%) of all
other spaces at each property, such tenants (Major
Tenants and other tenants) representing in the
aggregate at least eighty percent (80%) of the gross
leaseable space at each shopping center, and
accounting for at least eighty percent (80%) of the
gross income of such shopping center. In the event
any Tenant refuses to provide a tenant estoppel
certificate or fails to provide same in a timely
manner, GPLP will deliver and Purchaser agrees to
accept a Landlord estoppel for any such Tenant. Any
such Landlord estoppel will be provided by GPLP but
will be subject to a one (1) year limitation on any
and all liability.
15
16. CLOSING DOCUMENTS. Seller will deliver the following to Purchaser
at Closing (each signed and acknowledged by Seller, where appropriate):
(a) A special warranty deed (in a form reasonably
acceptable to Purchaser, and which complies with
applicable local law) conveying fee simple title in
each Property to Purchaser;
(b) A Xxxx of Sale conveying, transferring and selling to
Purchaser, all right title and interest of Seller in
and to all of the Personal Property and those service
contracts, if any, which Purchaser has advised Seller
it wishes to assume, to the extent the same are
assignable.
(c) An assignment by Seller of all of Seller's right,
title and interest in and to each Lease, including
security deposits and prepaid rents, if any.
(d) All documents required by the Existing Lenders for
the assignment and assumption of the Existing Loans.
(e) Certificate of Good Standing from the Secretary of
State in the state of Seller's formation, and a
Seller's resolution authorizing the sale of the
Property.
(f) A non-foreign affidavit for Seller complying with the
requirements of Internal revenue Code Section 1445
(f) (3) and regulations promulgated thereunder.
(g) All keys to the Property in the possession of Seller.
(h) Such other documents and instruments as may be
reasonably required by this Agreement or by the Title
Company in order to consummate the transaction
contemplated by this Agreement and to issue the
owner's Title Insurance Policy to Purchaser,
including but limited to, as to any work on the
Property requested by Seller, a mechanic's lien
affidavit, a gap affidavit, and a contractor's
affidavit stating the amount paid and the amount
outstanding under the contract to complete such work.
(i) Any document required by law to be executed by Seller
in order to record any transfer document.
(j) A tenant notice letter for each shopping center,
advising the tenants of such center that it has been
sold to Purchaser, that Purchaser has assumed the
responsibility for their security deposits under
their leases (to the extent transferred or credited
to Purchaser by Seller at closing), and to make all
future payments to Purchaser.
16
(k) Within twenty (20) days after the closing, the
originals of all leases, service contracts, and
warranties, and copies or originals of tenant
correspondence and property maintenance files.
(l) A certified, updated rent roll for each shopping
center in the Property, setting forth the tenant's
name, square feet leased, current base rent, base
rent per square foot, a separate report setting forth
all security deposits held by Seller as of the
Closing Date, and a separate report setting forth all
tenant delinquencies as of the Closing Date, if any.
(m) To the extent not provided earlier, the originals of
the estoppel letters described in SECTION 15(c), or
the Landlord estoppels in lieu thereof that are
permitted by SECTION 15(c).
17. MERGER. All warranties, representations, and covenants contained
herein, including those made in any Seller's estoppel certificate, shall survive
for a period of one (1) year following the Closing of this Agreement and sale of
the Property.
18. ASSIGNMENT. This Agreement may not be assigned by Purchaser without
the prior written consent of Seller, except to affiliate(s) of Purchaser
(including U.S. Properties Group, Inc., and its affiliates), which consent shall
not be unreasonably withheld. The terms of this Agreement shall inure to the
benefit of, and be binding upon, the respective successors and assigns of the
parties hereto.
19. REAL ESTATE BROKERAGE COMMISSION. Seller and Purchaser represent
and warrant that neither party nor any entity related to either party has dealt
with any broker or other person or entity who would be entitled to a commission
or other brokerage fee in connection with the transaction described in this
Agreement other than Xxxxxxx X. Xxxxx, to whom any commission due shall be paid
by Purchaser. Seller and Purchaser each agree to indemnify, defend, and hold
each other harmless of and from any loss, cost, damage, or expense (including
reasonable attorney's fees and court costs) arising out of any inaccuracy in the
representation or warranty made by the Seller and Purchaser, respectively, in
the first sentence of this Section 19.
20. MISCELLANEOUS:
(a) Entire Agreement.This Agreement contains all the terms,
promises, covenants, conditions, representations and warranties made or entered
into by and between Seller and Purchaser, and supersedes all prior discussions
and agreements, whether written or oral, between Seller and Purchaser with
respect to the conveyance of the Property and all other matters contained herein
and constitutes the sole and entire agreement between Seller and Purchaser with
respect thereto.
(b) Amendment. This Agreement may not be modified or amended
unless such amendment is set forth in writing and executed by both Seller and
Purchaser with the formalities hereof.
17
(c) Authority. Seller and Purchaser each represent and warrant
to the other that the individuals executing this Agreement on their behalf are
duly authorized and empowered to do so, and that upon such execution, this
Agreement shall be binding upon and enforceable by and against each of the
parties hereto.
(d) Execution by Both Parties. This Agreement shall not become
effective and binding until fully executed by both Purchaser and Seller. The
"Effective Date" of this Agreement shall mean the date of last execution hereof
and the party last executing this Agreement shall insert said date in the first
paragraph of this Agreement.
21. FACSIMILE. Purchaser and Seller agree that this Agreement may be
executed by the exchange of facsimile copies bearing the facsimile signatures of
the parties.
22. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts which upon assemblage shall be deemed to be fully executed
originals.
23. SELLER'S KNOWLEDGE. For purposes of this Agreement "Seller's
knowledge" shall mean the actual knowledge of Seller's senior Vice President of
Property Management, Senior Vice President of Construction Services, or
Executive Vice President/General Counsel (who are Xxxx Xxxxxxx, Xxxxxxx Xxxxxx,
and Xxxxxx Xxxxxxx, respectively), after due inquiry of those other individuals
still employed by or associated with the Seller whom the officers identified
above reasonably might expect to have information about the matters represented
in this Agreement.
24. INDEMNIFICATION:
(a) Excepting for those matters to be assumed by Purchaser in
accordance with the provisions of this Agreement or matters arising out of
Purchaser's inspections of the Property and Purchaser's obligations to indemnify
and hold Seller harmless pursuant to SECTION 3 above, Seller shall indemnify,
defend and hold Purchaser harmless with respect to liability from injury to
persons or property or liens or causes of actions for matters arising from any
of the Property that occur up to the time of Closing.
(b) Purchaser shall indemnify, defend and hold Seller harmless with
respect to liability from injury to persons or property or liens or causes of
actions for matters arising from any of the Property that occur after the time
of Closing.
(c) The provisions of this SECTION 24 shall survive Closing and the
transfer of the Property to Purchaser.
25. HISTORICAL INFORMATION. Seller acknowledges that Purchaser is
seeking to form a REIT to acquire and own an interest in, or make a loan to,
Purchaser. Purchaser acknowledges and agrees that Purchaser's independent audit
firm has substantially completed an audit of Seller's financial and operating
information for the individual shopping centers
18
composing the Property for the last three (3) years (the "Historical
Information"). Purchaser acknowledges that it has obtained satisfactory answers
to the questions that it once had concerning the accounting for certain expenses
related to the Property, and Purchaser waives any objection that it may have to
financial or operating information of the individual shopping centers composing
the Property that has been provided to Purchaser or that Purchaser has had the
opportunity to audit. In the event Purchaser deems it necessary to perform an
audit of the Property for the period commencing on the first day of Seller's
current fiscal year and ending on June 30, 2002, or a reasonable period of time
thereafter, Seller will cooperate with Purchaser and Purchaser's independent
audit firm performing such audit.
26. EMPLOYEES. Seller agrees to allow Purchaser the opportunity to
negotiate with Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxx Xxxx and/or Xxxxxxx Xxxxxx, and
the Seller represents and warrants that the foregoing named individuals are not
bound by contracts of employment with the Seller.
[signatures on following pages]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph of this Agreement.
SELLER:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
a Delaware limited partnership
by Glimcher Properties Corporation, a Delaware corporation
its general partner
By: \s: Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
Chairman and CEO
EAST POINTE VENTURE, LLC
a Delaware limited liability company
by Glimcher East Pointe, Inc.
a Delaware corporation, its Managing Member
By: \s: Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
Chairman and CEO
BARREN RIVER PLAZA, LLC
a Delaware limited liability company
by Glimcher Properties Limited Partnership
a Delaware limited partnership, its sole member
by Glimcher Properties Corporation
a Delaware corporation, its sole general partner
By: \s: Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
Chairman and CEO
RIVER VALLEY VENTURE, LLC
a Delaware limited liability company
by Glimcher River Valley, Inc.
A Delaware corporation
By: \s: Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
Chairman and CEO
20
PURCHASER:
20/20 MANAGEMENT COMPANY, INC.
a Texas corporation
By: \s: Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
Vice President
21
FLAGLER TITLE COMPANY
By: \s: Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title:
Date:
----------------------------------
22
SCHEDULE I
PROPERTY LIST
23 PROPERTIES
COMMUNITY CENTER ADDRESS OWNER
Aviation Plaza Oshkosh, WI XXXX
Xxxxxx Xxxxx Xxxxx Xxxxxxx, XX Barren Rive Plaza, LLC
Cherry Hill Plaza Galax, VA GPLP
College Plaza Bluefield, VA GPLP
Xxxxx Xxxxx Xxxxx Xxxxxxxx, XX GPLP
Crossing Xxxxxxx Onalaska, WI GPLP
Crossroads Centre Knoxville, TN GPLP
Xxxxxxx Xxx Xxxxxxx Xxxxxxxx Xxxx, XX GPLP
Delaware Community Plaza Delaware, OH GPLP
Xxxx Xxxxxx Xxxxx Xxxxxxxxxx, XX East Pointe Plaza
Venture, LLC
Franklin Square Spartanburg, SC GPLP
Hunter's Ridge Gahanna, OH GPLP
Lowe's Altoona Altoona, PA GPLP
Lowe's Columbus Columbus, OH GPLP
Xxxxxx Xxxxx Center Xxxxxx, SC GPLP
Mill Run Square Hilliard, OH GPLP
Xx. Xxxxxx Xxxxx Xx. Xxxxxx, XX XXXX
Xxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX River Valley Plaza
Venture, LLC
Springfield Commons Springfield, OH GPLP
Toys R Xx Xxxxxxxxxxx, XX XXXX
Xxxxxxx Xxxxx Xxxxxxx, XX GPLP
Wal-Mart Plaza Springfield, OH GPLP
Xxxxxxxxxx Xxxxx Xxxxxxxxxx, XX GPLP
23
SCHEDULE II
("Environmental Reports")
24
EXHIBIT "A"
(Legal descriptions of each property)
25
EXHIBIT "B"
(Tenant Summary for each property)
26
