EXHIBIT 10.16
PURCHASE AND SALE AGREEMENT
BETWEEN
PREFCO FIVE LIMITED PARTNERSHIP,
A CONNECTICUT LIMITED PARTNERSHIP
("PREFCO")
AND
AMERICAN FINANCIAL RESOURCE GROUP, LLC
A DELAWARE LIMITED LIABILITY COMPANY
("PURCHASER"),
PREFCO V HOLDINGS LLC,
A CONNECTICUT LIMITED LIABILITY COMPANY
("GENERAL PARTNER"),
AND PITNEY XXXXX REAL ESTATE FINANCING CORPORATION,
A DELAWARE CORPORATION
("LIMITED PARTNER")
August 9, 2002
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
9th day of August, 2002 between PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut
limited partnership (successor in interest to PREFCO V Limited Partnership,
"Prefco"), AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware limited liability
company (together with any of its assignees, "Purchaser"), and PREFCO V HOLDINGS
LLC, a Connecticut limited liability company (the "General Partner") and PITNEY
XXXXX REAL ESTATE FINANCING CORPORATION, a Delaware corporation (the "Limited
Partner", and, together with the General Partner, the "Partners").
Preliminary Statement
WHEREAS, Prefco is the owner (i) of an estate for years (the "Estate
for Years") expiring on August 31, 2010 (the "Estate for Years Expiration Date")
in those certain parcels of land more particularly described in Exhibits A-1
through A-85 annexed hereto and made a part hereof (the "Land"), and (ii) in fee
of (a) all buildings, improvements and structures now or hereafter located on
the Land (the "Improvements") and (b) certain equipment and fixtures attached
thereto (the Estate for Years, Option Rights (defined below), Improvements,
equipment, and fixtures are hereinafter collectively referred to as the
"Property"); and
WHEREAS, Carolina-Relco Limited Partnership, a Connecticut limited
partnership ("Remainderman"), is the fee owner of the Land, subject to the
Estate for Years; and
WHEREAS, the Property is subject to the terms and conditions of that
certain lease (the "Lease") between Prefco, as landlord, and First Union
Corporation and First Union National Bank, successor in interest by merger or
otherwise, as tenant ("Lessee"), as more fully described in Exhibit B annexed
hereto and made a part hereof; and
WHEREAS, the Land and the Property are encumbered by that certain
mortgage described in Exhibit C annexed hereto and made a part hereof (which
mortgage, together with the promissory notes secured thereby and any related
loan documents, are together called the "Mortgage"); and
WHEREAS, Prefco, Remainderman and Lessee are parties to that certain
agreement (the "Tripartite Agreement") dated as of July 31, 1990 setting forth
the understanding among the parties with respect to certain rights of the lessee
under the Lease relating to the purchase of the Property and the Land and
certain other matters; and
WHEREAS, Prefco desires to convey all of its right, title and interest
in and to the Property, and Purchaser desires to purchase all of Prefco's
interest in the Property; and
WHEREAS, the Purchaser and PREFCO may, at the option of either party,
structure the transaction contemplated hereby as a purchase and sale of all of
the partnership interests in Prefco (the "Partnership Interests"), in which
event each Partner would convey all of its right, title and interest in and to
the Partnership Interests held by it to Purchaser.
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NOW, THEREFORE, for and in consideration of the premises and the
mutual representations, warranties and covenants contained herein and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Prefco, Partners and Purchaser hereby agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and
subject to the terms and conditions of this Agreement, Prefco shall sell, assign
and convey, and Purchaser or its assignee shall purchase, the Property on the
terms and conditions provided in this Agreement.
2. Closing Documents. On the Closing Date and subject to the terms and
conditions of this Agreement, Prefco, Partners and Purchaser shall enter into
the Closing Documents to which they are a party.
3. Purchase Price. Purchaser shall pay, and Prefco shall accept, as
the purchase price (the "Purchase Price") for the Property, in addition to
Purchaser's acquiring the Property subject to the Mortgage (or Purchaser
prepaying all or any part of the loan as evidenced by those certain Series A
9.70% Secured Note Due 2000, Series B 9.91% Secured Note Due 2004, Series C
10.01% Secured Note Due 2007, Series D 10.01% Secured Note Due 2010, Series E
10.42% Secured Note Due 2010, Series F 10.55% Secured Note due 2010 (the
"Notes"), which Notes are secured by the Mortgage, as more fully set forth
below), the amount of Fifty Four Million Six Hundred Thousand and 00/100 Dollars
($54,600,000.00), as increased or decreased pursuant to the provisions of
Sections 7 and 13 hereof, which Purchase Price shall be paid by Purchaser as
follows:
(i) simultaneously with the execution of this Agreement,
Purchaser shall deposit with the Title Company (as defined is Section 7 (ii)
hereof), as escrow agent (the "Escrow Agent"), the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (together with any interest earned
thereon, the "Deposit");
(ii) simultaneously with Purchaser's satisfaction or waiver of
the conditions precedent set forth in Section 7 hereof, Purchaser shall deposit
with Escrow Agent the sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00), which amount will be added to and become part of the Deposit; and
(iii) At Closing, Purchaser shall pay or shall cause the Escrow
Agent to pay to Prefco (or its designees) the Deposit ($500,000.00 plus accrued
interest thereon) plus the balance of the Purchase Price in the amount of Fifty
Four Million One Hundred Thousand and 00/100 Dollars ($54,100,000.00)(as
increased or decreased pursuant to the provisions of Sections 7 and 13 hereof)
in immediately available funds by wire transfer to accounts designated by
Prefco. Purchaser acknowledges that the Property is subject to the Mortgage and
that the Purchase Price shall not be diminished or otherwise reduced by reason
thereof, including, without limitation, reductions by reason of the pay off of
all or any part of the existing financing, prepayment penalties, or otherwise
(whether Purchaser elects to prepay all or any part of the loan as evidenced by
the Notes and secured by the Mortgage).
4. Deposit; Escrow Terms. The Deposit shall be deposited by Escrow
Agent
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in an interest bearing account and the interest shall be payable to whichever
party is entitled to receive the Deposit. The parties acknowledge that Escrow
Agent is holding the Deposit and interest thereon solely as a stakeholder at
their request and for their convenience, that Escrow Agent shall not be deemed
to be the agent of either party in carrying out its role as Escrow Agent
hereunder, and that Escrow Agent shall not be liable to either party for any act
or omission on its part unless taken or suffered in bad faith or in willful
disregard of this Agreement or involving its gross negligence. Prefco and
Purchaser shall jointly and severally indemnify and hold Escrow Agent harmless
from and against any and all claims, liabilities and expenses (including
reasonable attorneys' fees and disbursements and court costs) which Escrow Agent
may incur in connection with any dispute over the distribution of the Deposit,
except with respect to actions or omissions taken or suffered by Escrow Agent in
bad faith or in willful disregard of this Agreement or involving Escrow Agent's
gross negligence. Escrow Agent may act or not act in its role as escrow agent
hereunder in full reliance upon and with the advice of counsel which it may
select and shall be fully protected in so acting or not acting. Escrow Agent has
acknowledged its agreement to act as escrow agent in accordance with this
Agreement by signing in the place indicated on the signature page of this
Agreement. Escrow Agent may at any time discharge its duties hereunder by
depositing the Deposit with a court of competent jurisdiction. If the Closing
occurs, the Deposit shall be applied toward the Purchase Price and paid to
Prefco or the Partners, as applicable. If the Closing does not occur for any
reason other than a Purchaser's default, then the Deposit shall be returned to
Purchaser.
5. "As-Is". Purchaser accepts the Property "AS-IS," "WHERE IS," with
all faults and defects as of the date hereof and the Closing Date. Purchaser
represents that it is relying solely upon its inspection of the Property, if
any, for all purposes whatsoever including, without limitation, the
determination of the character, size (including quantity of acreage), condition
(whether environmental or otherwise), accessibility, compliance with applicable
laws, state of repair and title and zoning, except as expressly set forth in
this Agreement. Purchaser acknowledges that there have been no representations,
warranties, guaranties, statements or information of any kind, express or
implied (including, but not limited to, implied warranties of merchantability
and fitness for a particular purpose), made or furnished to Purchaser by Prefco
or any of its employees or agents, except as expressly set forth in this
Agreement. This Section 5 shall survive the termination of this Agreement or the
Closing.
6. Environmental. Prefco makes no representations or warranties to
Purchaser that the Property is now or will be through the Closing Date in
compliance with applicable federal, state, regional, county or local laws,
statutes, rules, regulations or ordinances, concerning environmental matters or
the environment. Without limitation and in furtherance of the foregoing, it is
expressly agreed between Purchaser and Prefco that the Land and Improvements are
being transferred to and accepted by Purchaser pursuant to this Agreement in
their present, strict "AS IS, WHERE IS" environmental condition as of the
Closing Date and with all environmental faults, including without limitation any
environmental defects involving hazardous materials in, on, under or emanating
from the Land or Improvements, whether latent or patent, disclosed or
undisclosed, asserted or unasserted, known or unknown. Purchaser is not relying
on any environmental representation or environmental warranties of any kind
whatsoever, express or implied, from Prefco as to any matter concerning the
environmental condition or
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environmental quality (surface or subsurface) of the Land and Improvements and
hereby expressly and unconditionally waives and releases any and all implied
warranties relevant to the environmental condition and/or environmental quality
of the same. Nothing set forth in any other section of this Agreement shall be
interpreted or construed to be a representation or warranty relating to
compliance with environmental, health and safety matters. This Section 6 shall
survive the termination of this Agreement or the Closing.
7. Approvals and Conditions; Indemnity.
(a) The obligations of Prefco and Purchaser under this Agreement shall
be subject to and contingent upon timely satisfaction of the following
conditions, which conditions, if not satisfied or waived as hereinafter
provided, shall entitle Prefco or Purchaser, as the case may be, to terminate
this Agreement in accordance with (and within the time periods set forth in)
this Section 7:
(i) Review of Documentation Relating to the Property; Physical
Inspection of the Land and Improvements. Prefco has heretofore
provided Purchaser with copies of all documentation concerning the
Property which is in Prefco's possession or control, including
without limitation, any existing title policies covering Prefco's
interest in the Land and Improvements, the Lease, the Mortgage,
the Tripartite Agreement and that certain Option Agreement dated
as of July 31, 1990 between Investment Partners Leasing
Corporation and Prefco (the "Option Agreement"). In addition,
Prefco covenants and agrees to send Lessee the letter in the form
attached hereto as Exhibit G, and to use commercially reasonable
efforts in obtaining the materials requested therein; provided,
however, that such commercially reasonable efforts shall not be
construed to require Prefco to threaten or initiate litigation,
grant any concession or pay any consideration. Prefco shall
continue to cooperate with Purchaser in providing information and
documents to assist in Purchaser's investigation of the Property.
Purchaser may, at Purchaser's sole risk and expense, undertake
such physical inspection of the Land and Improvements as Purchaser
deems necessary or appropriate subject to the rights of Lessee
under the Lease.
Notwithstanding any other provisions contained in this Agreement
to the contrary, Purchaser understands and agrees that any on-site
inspections of the Property shall be conducted in accordance with
the provisions of the Lease. Purchaser agrees to indemnify against
and hold Prefco harmless from any claims by third parties for
liabilities, costs, expenses (including reasonable attorney's
fees), damages or injuries arising out of or resulting from the
inspection by Purchaser or its agents, and notwithstanding
anything to the contrary in this Agreement, such obligation to
indemnify and hold Prefco harmless shall survive Closing or any
termination of this Agreement. All on-site inspections shall occur
at any reasonable time during normal business hours, upon the
giving of reasonable notice, if the
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inspecting parties take precautions not to unreasonably
inconvenience Tenant or any persons occupying the Property in
accordance with the Lease, and are accompanied by an employee or
other representative of Tenant at all times during such entry or
inspection. Notwithstanding anything contained in the foregoing to
the contrary, Purchaser understands and agrees that it may be
excluded from inspecting areas of the Property designated as
security areas by Tenant, including, without limitation, vaults,
modular vaults and automatic teller machines. Without limitation
of the foregoing, Prefco agrees to afford Purchaser and a
reasonable number of its authorized agents the right to
communicate with Lessee, any subtenants of Lessee (with the
permission of Lessee), and Remainderman, provided that Prefco
shall be entitled to have a representative present, whether in
person or by telephone, as the case may be, during any such
communications between Purchaser and such parties.
Upon the termination of this Agreement in accordance with its
terms, Purchaser shall keep confidential all such information and
if requested by Prefco, shall furnish to Prefco copies of the
written reports, summaries, analyses or results of all such
inspections, which Prefco may use or may disclose to any potential
purchaser of the Property. Purchaser shall pay in full, prior to
delinquency, all bills and invoices for labor and material of any
kind arising from the inspection of the Land and Improvements. If
there is any damage to or disturbance of any portion of the Land
and Improvements in connection with any inspection thereof,
Purchaser shall restore such portion of the Land and Improvements
as nearly as practicable to its original condition prior to such
damage or disturbance including, without limitation, damage to
landscaping or trees.
Purchaser shall have one hundred twenty (120) days from the date
hereof (the "Inspection Period") within which it may, at its sole
cost and expense, review the documentation (including, without
limitation, the Option Agreement, Lease and Tripartite Agreement)
and the physical and environmental condition of the Land and
Improvements. Purchaser shall have until the end of the Inspection
Period to disapprove of the documentation and/or the physical and
environmental condition of the Land and Improvements and to
terminate this Agreement by delivering a written notice (a
"Termination Notice") to Prefco on or before the expiration of the
Inspection Period, with time being of the essence with respect to
Purchaser's obligation to deliver such notice. If for any reason
whatsoever Purchaser determines, in its sole discretion, that the
Property, the documentation or any aspect thereof is unsuitable
for Purchaser's acquisition, Purchaser shall have the right to
terminate this Agreement by delivering said Termination Notice to
Prefco prior to the expiration of the Inspection Period, and if
Purchaser gives such notice of termination within the Inspection
Period, this Agreement shall terminate, and the provisions
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of Section 7(b) shall control. If Purchaser decides to go forward
with the purchase at or prior to the end of the Inspection Period,
it will deliver written notice (an "Approval Notice") to Prefco to
that effect. If Prefco does not receive an Approval Notice or a
Termination Notice from Purchaser before the end of the Inspection
Period, with time being of the essence, Purchaser shall be deemed
to have disapproved of the documentation and the physical and
environmental condition of the Land and Improvements and all other
matters relating thereto, and Purchaser shall be considered to
have delivered a Termination Notice in accordance with the
provisions hereof.
The provisions of this Section 7(a)(i) shall survive termination
of this Agreement or Closing.
(ii) Approval of Title and Survey. Upon execution of this
Agreement, Purchaser shall be entitled, but shall not be required,
to order (A) a commitment for an owner's policy of title insurance
(the "Commitment") issued by a title company selected by Purchaser
and approved by Prefco (the "Title Company") pursuant to which the
Title Company commits to issue an owner's policy of title
insurance in such amounts as are reasonably requested by Purchaser
(the "Title Policy") and (B) a survey of the Land (the "Survey")
in form acceptable to Purchaser and the Title Company (in the
event Purchaser elects to obtain title insurance). The costs of
the Title Policy (together with any endorsements requested by
Purchaser) and Survey shall be paid by Purchaser. During the
Inspection Period, Purchaser shall have the opportunity to review
the condition of title and survey. At any time prior to the
expiration of the Inspection Period, Purchaser may disapprove the
Survey and the title exceptions, by delivering written notice (a
"Disapproval Notice") to Prefco stating with particularity the
exceptions which Purchaser disapproves and the reasons for such
disapproval. Time is of the essence with respect to Purchaser's
obligation to deliver such Disapproval Notice. Prefco, at its
option, shall have fifteen (15) days, from and after delivery of
Purchaser's Disapproval Notice, to agree to undertake to cause the
surveyor or the Title Company, as the case may be, to remove such
objectionable exceptions. Purchaser acknowledges that Prefco shall
not be obligated to undertake to cause the Title Company to remove
any of the title exceptions. If Prefco agrees to undertake to
remove any objectionable exceptions, Prefco will use diligent
efforts to cause the removal of such exceptions within thirty (30)
days after it agrees to such undertaking, provided however that
the Scheduled Closing Date may be adjourned by Prefco, if
necessary, for an additional period of sixty (60) days to remove
such objectionable exceptions (provided that Prefco is diligently
pursuing such removal). If Prefco does not agree to undertake to
remove such exceptions or shall fail to remove such objectionable
exceptions within such time, Purchaser may (a) elect to
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waive its objections and close on the Closing Date, (b) terminate
this Agreement by delivering a Termination Notice to Prefco within
three (3) business days after Prefco's failure to remove such
exceptions, or (c) terminate this Agreement by delivering a
Termination Notice to Prefco within three (3) business days after
Prefco's failure to remove such exceptions with respect to the
particular property for which it sent a Disapproval Notice;
provided, however, that Purchaser shall not be permitted to
terminate this Agreement with respect to a particular property or
properties for which it sent a Disapproval Notice which,
individually or in the aggregate, constitute greater than five
percent (5.0%) of the equity value of all Properties. In the event
Purchaser elects option (c) as set forth in the immediately
preceding sentence, Purchaser shall be entitled to receive a
credit in its favor against the Purchase Price in respect of due
diligence expenses, such due diligence expenses not to exceed Five
Thousand and 00/100 Dollars ($5,000.00) for each property that
Purchaser has terminated this Agreement with respect to in
accordance with the foregoing provisions. Notwithstanding the
foregoing, Purchaser shall not be entitled to any such
reimbursement if the transaction contemplated by this Agreement
does not close for any reason whatsoever, and shall not be
entitled to any such reimbursement in an amount greater than Fifty
Thousand and 00/100 Dollars ($50,000.00). Purchaser's failure to
respond within such three (3) business day period shall be deemed
an election to terminate this Agreement, and the provisions of
Section 7(b) shall control. In the event Prefco does not receive a
Disapproval Notice from Purchaser prior to the end of the
Inspection Period, with time being of the essence, Purchaser shall
be deemed to have approved the Survey and the condition of title
as set forth in the Commitment through the last day of the
Inspection Period. Any title exceptions or survey exceptions not
objected to by Purchaser or otherwise waived and accepted by
Purchaser shall be deemed "Permitted Exceptions" to the conveyance
to Purchaser by Prefco.
Purchaser may, at or prior to Closing, notify Prefco in writing
(the "Gap Notice") of any objections to title: (a) raised by the
Title Company between the expiration of the Inspection Period and
the Closing; and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the expiration of the
Inspection Period. If Purchaser sends a Gap Notice to Prefco,
Purchaser and Prefco shall have the same rights and obligations
with respect to such notice as apply to a Disapproval Notice in
accordance with the provisions of this Section 7(a)(ii).
In addition to and without limiting the foregoing, Purchaser shall
verbally inform Prefco not more than thirty (30) nor less than
twenty (20) days after the date hereof, and from time to time
thereafter at Prefco's reasonable request, of the status of
Purchaser's document review (including without limitation title
and survey) and Property inspection pursuant to this Section
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7, including a statement of those items and/or documents which
Purchaser is still reviewing and/or inspecting with respect to the
Property.
(b) Effect of Termination. If this Agreement is terminated pursuant to
this Section 7, the Deposit shall be refunded to Purchaser and Purchaser shall
return to Prefco or destroy on behalf of Prefco all documents delivered by
Prefco to Purchaser pursuant to this Agreement. Upon completion of all of the
foregoing, this Agreement shall be deemed terminated and no party shall have any
further rights against or obligations to the other parties hereunder, except as
to those obligations which are expressly stated to survive the termination of
this Agreement.
(c) Indemnity. Purchaser shall indemnify and hold harmless Prefco from
and against any and all liability, loss, cost and expense (including, without
limitation, reasonable attorneys' fees and disbursements) arising from any
action by Purchaser or any of its agents, employees or contractors in connection
with any entry onto the Land and Improvements and/or any physical inspection of
the same. This provision shall survive the termination of this Agreement or the
Closing.
8. Costs; Prorations. Except as otherwise provided by this Agreement,
each party shall pay the out-of-pocket costs and expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby. Subject
to the terms and provisions of this Agreement, in the event Purchaser elects to
prepay some or all of the loan as evidenced by the Notes and secured by the
Mortgage, any costs incurred in connection with the prepayment of all or any
part of said loan, as evidenced by the Notes and secured by the Mortgage and
payable to the holder thereof shall be paid by Purchaser upon demand, whether or
not this Closing shall occur. There shall be no apportionments, except for any
rent under the Lease in excess of debt service on the Mortgage, which excess
will be pro-rated from the immediately preceding rent and debt service payment
date to and including the Closing Date (all other expenses being the
responsibility of the Lessee under the Lease both before and after the Closing
Date).
9. Remedies on Default.
(i) Default by Purchaser. In the event that Closing fails to
occur by reason of a default by Purchaser, Prefco shall be entitled, as its sole
remedy, to terminate this Agreement and receive the Deposit as liquidated
damages for default under this Agreement; it being agreed between the parties
hereto that the actual damages to Prefco in the event of such default are
impractical to ascertain and the amount of the Deposit is a reasonable estimate
thereof.
(ii) Default by Prefco. In the event that Prefco or any Partner
defaults in the performance of its obligations under this Agreement for any
reason other than Purchaser's default, Purchaser shall be entitled to (a)
terminate this Agreement and receive the return of the Deposit, or (b) seek
specific performance of this Agreement by Prefco or the Partners.
Notwithstanding the foregoing, in the event that all of the closing conditions
set forth in this Agreement have been satisfied, including, without limitation,
those set forth in Section 13 hereof, and thereafter Prefco or any Partner
willfully defaults in the performance of this Agreement,
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Purchaser shall be permitted to pursue an action for damages against Prefco and
the Partners relative to such willful default, but such damages shall in no
event exceed the lesser of Purchaser's actual reasonable out of pocket expenses
or the sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00).
Purchaser acknowledges and agrees that in no event shall Prefco's or any
Partner's liability pursuant to this Section 9(ii) exceed the lesser of
Purchaser's actual reasonable out of pocket expenses or the sum or Two Hundred
Fifty Thousand and 00/100 Dollars ($250,000.00). As a condition precedent to
Purchaser's right to pursue an action for damages as set forth above, Purchaser
shall be ready, willing and able to perform all of its covenants and obligations
to be performed or delivered on or before the Closing including, without
limitation, delivery of the balance of the Purchase Price. If Purchaser fails to
satisfy such requirements, Prefco shall be entitled to an immediate dismissal of
any action for damages and an immediate removal of any lis pendens affecting the
Property.
10. Insurance; Casualty or Condemnation. If any portion of the
Improvements are materially damaged or destroyed by fire or other casualty prior
to the Closing, or in the event Prefco shall receive notice of any taking or any
threatened taking of all or any material portion of the Land or Improvements,
this Agreement shall nevertheless remain in full force and effect, without any
adjournment of the Closing Date and without any adjustment of the Purchase
Price. Prefco and each Partner shall assign all of its rights in and to any
interest it may have to the proceeds payable by any party to Prefco or the
Partner, if any, as a result of such casualty or condemnation affecting the Land
or Improvements, as applicable.
11. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Prefco as of the date hereof as follows,
which representations, warranties and covenants shall be deemed to have been
made again as of the Closing:
(a) Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of Delaware and is
duly qualified as a foreign entity in each jurisdiction where the
nature of its business or the character of its properties requires
such qualification;
(b) Purchaser has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of the
Closing Documents (as hereinafter defined) and to perform its
obligations under this Agreement and each of the Closing
Documents; and the individual executing this Agreement on behalf
of Purchaser hereby represents and warrants that he, she or it has
the capacity set forth on the signature page hereof with full
power and authority to bind Purchaser to the terms hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Purchaser and constitutes a legal,
valid and binding obligation of Purchaser enforceable against it
in accordance with its terms except as the enforcement may be
limited by (i) the effect of the laws and judicial decisions of
the State of Delaware, (ii) the discretion of any court or
governmental or public body, authority, bureau or agency
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before which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally;
(d) to the best of Purchaser's knowledge, no consent, license,
approval or authorization of, or filing, registration or
declaration with, or exemption by, any governmental or public
body, authority, bureau or agency is required in connection
with the execution, delivery or performance by Purchaser of
this Agreement and all of the other Closing Documents, other
than those which have been obtained;
(e) Purchaser's execution, delivery and performance of this
Agreement and the other Closing Documents does not and will not
violate (i) Purchaser's certificate of formation, operating
agreement or the terms of any security issued by it, or (ii) to
the best of Purchaser's knowledge, any law, governmental
regulation, judgment, order, writ, injunction or decree
applicable to Purchaser in any manner which will materially
adversely affect Purchasers ability to perform its obligations
hereunder, (iii) provided that all necessary consents are
obtained, do not and will not constitute a default or event of
default under any instrument, contract, agreement, lease or
other undertaking to which Purchaser is a party or by which it
or any of its properties may be subject or bound in a manner
which will materially adversely affect its ability to perform
the same, or (iv) do not result and will not result in the
creation or imposition of any lien, pledge, mortgage, claim,
charge or encumbrance upon any of its property, except as
permitted by the Closing Documents;
(f) to the best of Purchaser's knowledge without any inquiry, there
is no action, suit or proceeding pending or to the best of
Purchaser's knowledge, threatened against or affecting
Purchaser in any court, or by or before any federal, state,
municipal or other governmental department, commission, board,
bureau or instrumentality which would have any effect on
Purchaser's ability to execute and perform its obligations
under this Agreement;
(g) Purchaser has not dealt with any broker, agent or finder in
connection with the transaction contemplated by this Agreement.
To the extent Purchaser engages a broker in connection with
obtaining financing for the acquisition of the Property, the
obligations with respect to such broker in connection with such
financing shall be the responsibility of Purchaser. Purchaser
shall indemnify and hold harmless Prefco from and against any
cost, expense (including without limitation reasonable
attorneys' fees and disbursements), claim, liability or damage
arising out of any claim or demand by any broker, consultant,
finder or similar agent claiming to have dealt with Purchaser
in connection with this Agreement and the transaction
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contemplated hereby;
(h) Purchaser and each of Purchaser's assignees, if any, shall
comply with all the requirements, representations, covenants
and negative covenants, as the same may be amended from time to
time, contained in the Lease, the Tripartite Agreement and the
Option Agreement (the foregoing documents are hereinafter
collectively referred to as the "Operative Documents");
(i) Purchaser has not filed any voluntary petition in bankruptcy or
been adjudicated as bankrupt or insolvent, or filed any
petition or answer seeking any reorganization, liquidation,
dissolution or similar or other relief for debtors, or sought
or consented to or acquiesced in the appointment of any
trustee, receiver, conservator or liquidator for all or any
substantial part of its properties; and
(j) the making, execution and delivery of this Agreement by
Purchaser has been induced by no representations, warranties,
covenants or agreements other than those expressly set forth in
this Agreement.
12. Representations, Warranties and Covenants of Prefco. Prefco
represents, warrants and covenants to Purchaser as of the date hereof as
follows, which representations, warranties and covenants shall be deemed to have
been made again as of the Closing:
(a) Prefco has all requisite power and authority to carry on its
business and to perform its obligations under this Agreement
and each of the other Closing Documents;
(b) Prefco is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of
Connecticut and has all requisite power and authority to carry
on its business and to execute and deliver this Agreement and
each of the other Closing Documents; and the individual
executing this Agreement on behalf of Prefco hereby represents
and warrants that he, she or it has the capacity set forth on
the signature page hereof with full power and authority to bind
Prefco to the terms hereof;
(c) this Agreement has been duly authorized by all necessary
actions, duly executed and delivered by Prefco and constitutes
a legal, valid and binding obligation of Prefco enforceable
against it in accordance with its terms except as the
enforcement may be limited by (i) the effect of the laws and
judicial decisions of the State of Connecticut, (ii) the
discretion of any court or governmental or public body,
authority, bureau or agency before which any proceeding may be
brought or (iii) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally;
(d) to the best of Prefco's knowledge, no consent, license,
approval or
11
authorization of, or filing, registration or declaration with,
or exemption or other action by, any governmental or public
body, authority, bureau or agency is required in connection
with the execution, delivery or performance by Prefco of this
Agreement or the transactions herein contemplated or the
Closing Documents to which it is a party other than those which
have been obtained;
(e) Prefco's performance, execution and delivery of this Agreement
and the other Closing Documents (i) do not and will not violate
(x) Prefco's limited partnership agreement or the terms of any
security issued by it, or (y) to the best of Prefco's
knowledge, any law, governmental regulation, judgment, order,
writ, injunction or decree applicable to Prefco in any manner
which will materially adversely affect Prefco's ability to
perform its obligations hereunder, (ii) provided that all
necessary consents are obtained (including, without limitation,
consents of the registered owners of the Notes and any other
applicable party), do not and will not violate the provisions
of, or constitute a default or an event of default under the
Mortgage, (iii) provided that all necessary consents are
obtained, do not and will not constitute a default or an event
of default under any instrument, contract, agreement, lease or
other undertaking to which Prefco is a party or by which any of
its properties may be subject or bound in a manner which will
materially adversely effect its ability to perform the same; or
(iv) do not result and will not result in the creation or
imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property pursuant to such agreement
or instrument, except as permitted by the Closing Documents;
(f) to the best of Prefco's knowledge without any inquiry, there is
no action, suit or proceeding pending or threatened against or
affecting Prefco or the Property in any court, or by or before
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which
would have any effect on Prefco's ability to execute and
perform its obligations under this Agreement;
(g) Prefco is not a "foreign person" as defined in Section 1445 of
the Internal Revenue Code;
(h) Prefco has not filed any voluntary petition in bankruptcy or
been adjudicated as bankrupt or insolvent, or filed any
petition or answer seeking any reorganization, liquidation,
dissolution or similar relief under any federal bankruptcy or
insolvency laws, or other relief for debtors, or sought or
consented to or acquiesced in the appointment of any trustee,
receiver, conservator or liquidator of all or any substantial
part of its properties or interest in the Land or the Property;
(i) Prefco has not dealt with any broker in the negotiations of the
transactions
12
contemplated by this Agreement. Prefco shall indemnify and hold
harmless Purchaser from and against any cost, expense
(including without limitation reasonable attorneys' fees and
disbursements), claim, liability or damage arising out of any
claim or demand by any broker, consultant, finder or similar
agent claiming to have dealt with Prefco in connection with
this Agreement and the transaction contemplated hereby;
(j) to Prefco's actual knowledge, the Lease is in full force and
effect and has not been modified, except by that certain
Agreement Re: Modification of Lease, dated November 27, 1995,
that certain Modification Agreement dated as of September 30,
1992, that certain Modification Agreement dated as of January
22, 1996, and that certain Modification Agreement dated as of
December 20, 1999, and Prefco has no actual knowledge of any
current material default in the performance of the obligations
of any party under the Lease;
(k) after the date hereof and prior to the Closing, except as
required under the Lease, Prefco shall not sell or otherwise
transfer without Purchaser's consent any part of the Property,
or any interest therein (provided, however, that Purchaser
acknowledges Prefco is permitted to enter into negotiations for
the sale of the Property, and, at such time, Purchaser shall
deliver its consent to Prefco (without delay) to enter into
such negotiations);
(l) after the date hereof and prior to the Closing, except as
required under the Lease, Prefco shall not enter into or
approve any new leases and/or subleases of the Land and
Improvements, or amend, modify or extend the Lease, without the
prior written consent of Purchaser (which consent shall not be
unreasonably withheld or delayed), except as required pursuant
to the terms and conditions of the Lease;
(m) to the best of Prefco's knowledge, Prefco is the owner of the
Estate for Years in the Land, and, to the best of Prefco's
knowledge, is the fee owner of the Improvements and Property,
all of which are subject to the Permitted Exceptions.
Notwithstanding the foregoing, Prefco makes no representations,
warranties or covenants with respect to any title matters, it
being expressly agreed that Purchaser is relying solely on
title insurance commitments issued by the Title Company with
respect to such matters;
(n) the making, execution and delivery of this Agreement by Prefco
has been induced by no representations, warranties, covenants
or agreements other than those expressly set forth in this
Agreement; and
(o) to the best of Prefco's knowledge, Prefco has not received any
written condemnation notice with respect to the Property,
except that Prefco was contacted in or about February, 2001
with a request to donate certain
13
property and grant an easement to the Gwinnett County
Department of Transportation of Georgia with respect to certain
property located at 0000 X. Xxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx
and 0000 Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx, however this
matter has been inactive since August, 2001.
13. Closing; Conditions to Closing.
(a) Closing. As used herein, "Closing" shall mean the closing of the
transactions contemplated herein on the Closing Date (as hereinafter defined).
Either party shall have the option, exercisable by such party by delivery of
written notice to the other party and the Partners within five (5) days prior to
the Closing Date (the "Equity Purchase Notice"), to restructure the transaction
contemplated hereby as a purchase and sale of all of the outstanding Partnership
Interests in Prefco ("Equity Purchase"). In the event either party exercises
such option, the parties hereto hereby agree that this Agreement shall
automatically be amended as set forth on Exhibit I hereto; provided, however,
that if either party objects to consummating the transaction as an Equity
Purchase, which such objection must be exercised, if at all, by providing
written notice of such objection to the other party and the Partners within one
(1) day of the receipt of the Equity Purchase Notice (the "Equity Purchase
Objection Notice"), then such Equity Purchase Objection Notice shall be deemed
void, and the transaction shall proceed as previously contemplated subject to
the provisions of this Agreement, with each party bearing one-half (1/2) of any
transfer taxes required pursuant to applicable law. The Closing shall take place
through an escrow with the Title Company with the closing documents and actions
not previously delivered or taken to be delivered to the Title Company or taken
on or before the Closing Date in New York, New York at the offices of Prefco's
attorneys, as specified by Prefco. The Closing Date shall be on or before
January 31, 2003 (the "Scheduled Closing Date") (the Scheduled Closing Date, as
adjourned from time to time as provided for more fully below shall be the
"Closing Date"). At any time after the expiration of the Inspection Period and
prior to the Scheduled Closing Date, Purchaser may adjourn the Scheduled Closing
Date as hereinafter provided. Purchaser may adjourn the Scheduled Closing Date
for a period of up to thirty (30) days (the "First Adjournment Option") by
delivering written notice of such adjournment to Prefco on or before the
Scheduled Closing Date. In the event Purchaser exercises the First Adjournment
Option, Purchaser may further adjourn the adjourned Closing Date for an
additional period of up to thirty (30) days (the "Second Adjournment Option") by
delivering written notice of the exercise of such Second Adjournment Option to
Prefco, provided, that in no event may the Closing be extended to a date which
is later than March 31, 2003. In the event Purchaser exercises the First
Adjournment Option, the Purchase Price shall be increased in the amount of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) and, in the event
Purchaser exercises the Second Adjournment Option, the Purchase Price shall be
increased in the additional amount of Two Hundred Fifty Thousand and 00/100
Dollars ($250,000.00).
(b) Conditions to Closing (Purchaser). Purchaser's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
14
(i) Prefco shall deliver an estoppel certificate to Purchaser from
Lessee in the form attached hereto as Exhibit D.
(ii) Prefco shall deliver an estoppel certificate to Purchaser from
Prefco in the form attached hereto as Exhibit H.
(iii) The Lessee and any third parties enjoying a right of first
refusal or other similar rights to purchase the Property, if any, shall have
waived said rights. This condition may not be waived by Prefco or Purchaser.
(iv) In the event Purchaser elects to assume the obligations under
the Mortgage, Purchaser shall have obtained the right to assume such Mortgage
from the beneficiaries holding the Mortgage or, if Purchaser elects to prepay
all or any part of the obligations evidenced by the Notes and secured by the
Mortgage, Purchaser shall have obtained the requisite consent to make such
prepayment from all necessary parties.
(v) Purchaser shall have reached a separate agreement with
Remainderman, on terms mutually acceptable to Purchaser and Remainderman, for
the purchase of said Remainderman's fee interest in the Land. Prefco shall only
be required to use commercially reasonable efforts in assisting Purchaser in
such negotiations, and such commercially reasonable efforts shall not, without
limitation, be construed to require Prefco to grant any concession or pay any
consideration
(vi) Prefco shall have obtained any consents identified in Section
12(e) hereof.
(vii) All of the representations and warranties of Prefco contained
in this Agreement shall be true and correct as of the date of Closing and Prefco
shall have performed and satisfied all agreements, covenants and conditions it
is required to perform and satisfy under this Agreement prior to or at Closing,
or, in the event this Agreement is restructured as an Equity Purchase, all of
the representations and warranties of Prefco and the Partners contained in this
Agreement shall be true and correct as of the date of Closing and Prefco and the
Partners shall have performed and satisfied all agreements, covenants and
conditions that they are required perform and satisfy under this Agreement prior
to or at Closing.
(viii) Purchaser shall have received fully executed copies of the
Closing Documents.
(c) Conditions to Closing (Prefco). Prefco's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Prefco shall be able to obtain an estoppel certificate from
Lessee in the form attached hereto as Exhibit D.
15
(ii) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct as of the date of Closing
and Purchaser shall have performed and satisfied all agreements, covenants and
conditions it is required to perform and satisfy under this Agreement prior to
or at Closing.
(iii) Purchaser shall have paid the Purchase Price as set forth in
Section 3.
(iv) Prefco shall have received fully executed copies of the Closing
Documents.
(d) Failure of Conditions to Closing. In the event one or more of the
conditions to Closing described in Section 13(b) hereof is not satisfied or
waived on or before the Closing, and the failure of such conditions to be
satisfied is not a result of a default by Prefco, Partners or Purchaser, then
Purchaser shall have the right to terminate this Agreement and the escrow
created hereby by giving written notice of termination to Prefco. In the event
one or more of the conditions to Closing described in Section 13(c) hereof are
not satisfied or waived on or before the Closing, and the failure of such
conditions to be satisfied is not a result of a default by Prefco, Partners or
Purchaser, then Prefco shall have the right to terminate this Agreement and the
escrow created hereby by giving written notice of termination to Purchaser.
14. Documents to be Delivered at Closing. At or prior to Closing,
the following documents, certificates, opinions and agreements (the "Closing
Documents"), in form and substance satisfactory to Prefco and Purchaser shall be
executed and/or delivered by the respective parties thereto:
(i) Special Warranty Deed to the Estate for Years in Land and fee
simple in Improvements (in substantially the form attached
hereto as Exhibit E-1 with respect to the parcels located in
North Carolina and in substantially the form attached hereto as
Exhibit E-2 with respect to the parcels located in Florida),
and Limited Warranty Deed to the Estate for Years in Land and
fees simple in Improvements (in substantially the form attached
hereto as Exhibit E-3 with respect to the parcels located in
Georgia), unless the transaction is structured as an Equity
Purchase, in which case the foregoing shall not be required;
(ii) an Assignment and Assumption Agreement (in substantially the
form attached hereto as Exhibit F), unless the transaction is
restructured as an Equity Purchase, in which case the foregoing
shall not be required;
(iii) appropriate resolutions and consents of Prefco and/or the
Partners (or evidence that such consent is not required);
(iv) Secretary's certificates and corporate resolutions of Purchaser
and Prefco and/or the Partners;
16
(v) Incumbency certificates of Prefco and/or the Partners and
Purchaser;
(vi) Good standing certificates of Prefco and/or the Partners and
Purchaser;
(vii) Transfer Tax Affidavits/Forms, if any, unless the transaction
is restructured as an Equity Purchase, in which case the
foregoing shall not be required;
(viii) "Nonforeign" Person Certificates from Prefco pursuant to Treas.
Reg. 1.1445-2T(b)(2), unless the transaction is restructured as
an Equity Purchase, in which case the foregoing shall not be
required;
(ix) any other documents required to transfer to Purchaser all
right, title, and interest of Prefco in, to, or in any way
arising out of or connected with the Property or the Operative
Documents, and, in the event the transaction is restructured as
an Equity Purchase, any other documents required to transfer to
Purchaser all right, title, and interest of the Partners in,
to, or in any way arising out of or connected with the
Partnership Interests;
(x) Title affidavits and any other documents reasonably required by
the Title Company;
(xi) Proof as to the waiver and/or lapse of all rights of first
refusal and/or first offer, if any;
(xii) a certificate by each of Prefco and Purchaser (and the Partners
in the event that the transaction is restructured as an Equity
Purchase) to the effect that their respective representations
and warranties contained herein are true and correct as of the
Closing; and
(xiii) Any other documents required pursuant to this Agreement or
reasonably requested by the Title Company.
15. Purchaser's Assignees. Purchaser, at Purchaser's sole cost and
expense, may designate separate assignees to acquire title to the Property, or
in the event that the transaction is restructured as an Equity Purchase, the
Partnership Interests. In the event Purchaser elects to take title to the
Property subject to the Mortgage, any assignment of this Agreement or
Purchaser's rights hereunder shall be subject to the terms of the Mortgage
pertaining to transfers. In the event Purchaser elects to prepay all or any part
of the loan as evidenced by the Notes and secured by the Mortgage, any such
prepayment shall be subject to the terms of the Mortgage and any other
conditions required by the registered owners of such Notes or other applicable
party.
16. Notices. All notices, offers, acceptances, rejections,
consents, requests and other communications hereunder shall be in writing and
shall be deemed to have been given (i) when delivered in person or (ii) when
sent by telecopier (with receipt confirmed) or (iii) on receipt after being sent
by express mail or delivery service guaranteeing overnight delivery,
17
provided that in the case of clause (ii) a copy is mailed by first class
registered or certified mail, postage prepaid, return receipt requested, in each
case addressed as follows:
As to Prefco and/or Partners: c/o Pitney Xxxxx Credit Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
As to Purchaser: American Financial Resource Group, LLC
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address as either party shall furnish to the other
party in writing.
17. Entire Agreement. This Agreement contains the entire agreement
between Prefco, Partners and Purchaser with respect to the purchase and sale
contemplated hereby and supersedes any prior agreements with respect thereto.
18. Further Acts. Each party, upon the request of the other, agrees to
perform such further acts and to execute and deliver such other documents as are
reasonably necessary to carry out the provisions of this Agreement.
19. Survival of Obligations. The representations, warranties and
indemnities of the parties hereto as set forth in this Agreement shall, except
as otherwise provided in this Agreement, survive the termination of this
Agreement, and shall survive the Closing and the execution, delivery and
recording of the agreements, certificates, instruments and other
18
documents referred to herein.
20. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
22. Governing Law; Consent to Jurisdiction and Venue. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
Connecticut. Prefco, Partners and Purchaser agree that all disputes arising out
of or relating to this Agreement and all actions to enforce this Agreement shall
be exclusively adjudicated in the state courts of Connecticut or the federal
courts sitting in Connecticut or having appellate jurisdiction with respect
thereto and Prefco, Partners and Purchaser hereby irrevocably submit to the
jurisdiction of such courts in any suit, action or proceeding arising out of or
relating to this Agreement or in any action to enforce this Agreement. So far as
is permitted under applicable law, this consent to personal jurisdiction shall
be self-operative and no further instrument or action, other than service of
process as required by law, shall be necessary in order to confer jurisdiction
upon the person of Prefco, Partners or Purchaser in any such court.
23. Exhibits. All of the Exhibits annexed hereto are incorporated
herein by reference and form part of this Agreement.
24. Miscellaneous. In the event that any provision of this Agreement
shall be determined to be void or unenforceable, such determination shall not
affect the remaining provisions of this Agreement; and this Agreement shall not
be construed against the party preparing it but shall be construed as if both
parties prepared this Agreement.
25. Third Parties. This Agreement shall not be deemed to confer in
favor of any third parties any rights whatsoever as third-party beneficiaries,
the parties hereto intending by the provisions hereof to confer no such benefits
or status.
26. Jury Waiver. PREFCO, PARTNERS AND PURCHASER WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTER-CLAIM FILED BY EITHER PARTY (AND THEIR RESPECTIVE NOMINEES, DESIGNEES,
AND ASSIGNEES), WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THIS
AGREEMENT OR THE SALE OF THE PROPERTY OR ANY ACTS OR OMISSIONS OF ANY SUCH
PERSON, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
THIS SECTION 27 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING.
27. Successors and Assigns. Subject to the provisions of Section 16
hereof,
19
this Agreement shall be binding upon and inure to the benefit of each of the
parties hereto and their respective permitted transferees, successors and
assigns.
28. No Joint Venture. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be deemed or construed to make the
parties hereto partners or joint venturers, or to render either party liable for
any of the debts or obligations of the other, it being the intention of the
parties to merely create the relationship of seller and purchaser with respect
to the Property to be conveyed as contemplated hereby.
29. Confidentiality. Each party agrees to maintain in confidence the
dealings, negotiations and agreements of the parties with respect to this
Agreement and the transaction contemplated hereby, and neither of them shall
make any disclosure of any information regarding those matters (except to their
members, officers, directors, employees, accountants, lenders, attorneys,
consultants, appropriate governmental personnel, and others who have a need for
that information and who agree to comply with this provision, and except as to
any information which is a matter of public record or provided in connection
with applicable governmental proceedings), (a) unless both Prefco and Purchaser
otherwise agree in writing, or (b) except as may be necessary in order to comply
with applicable law after consultation with legal counsel.
30. Saturdays, Sundays or Holidays. In the event that any of the dates
specified in this Agreement shall fall on a Saturday, Sunday or a holiday, then
the date of such action shall be deemed to be extended to the next business day.
31. Section Headings. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
32. Section 1031 Exchange. Purchaser and Prefco agree to execute any
documents necessary for Prefco to effectuate the transfer of the subject
property as reasonably requested by Prefco, including, without limitation, an
assignment of any purchase agreement to a "qualified intermediary" as defined in
Treas. Reg. 1.103(k) - 1(g)(4) if requested by such qualified intermediary in
order for said party to be able to effectuate a "like kind exchange" pursuant to
Internal Revenue Code Section 1031 and the regulations promulgated thereunder,
provided that such actions by Prefco have no material adverse impact on
Purchaser.
33. Cooperation. Prefco, Partners and Purchaser hereby agree to
cooperate with each other in providing all information, documents and other
materials within their reasonable control necessary to assist Purchaser in the
investigation of the Property and Prefco as contemplated by this Agreement.
Purchaser agrees to reasonably cooperate with Prefco and Partners in order to
minimize any transfer taxes and similar taxes imposed on Prefco or Partners in
connection with the transaction, including without limitation, as provided
above, structuring the transaction as a sale of Partnership Interests in Prefco,
provided that Purchaser shall not be required to take any action which will
increase the risks or the costs of the transaction to Xxxxxxxxx.
00
00. Interim Covenants. From and after the date hereof and up to and
including the Closing Date or the termination of this Agreement, Prefco and
Partners shall promptly deliver (to the extent actually received by Prefco or
the Partners) to Purchaser copies of written default notices, notices of
lawsuits (including, without limitation, condemnation proceedings), and notices
of violations affecting the Property, Prefco or the Partnership Interests. In
addition, Prefco and the Partners shall deliver (to the extent actually received
by Prefco or the Partners) to Purchaser copies of written default notices,
notices of lawsuits (including, without limitation, condemnation proceedings),
and notices of violations affecting the Property, Prefco or the Partnership
Interests which are now in the possession of Prefco or Partners.
[the remainder of the page is intentionally blank]
21
IN WITNESS WHEREOF, Prefco and Purchaser have caused this Agreement to
be executed, under seal, by their respective signatories thereunto duly
authorized.
PREFCO:
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut
limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its general
partner
By: Harlow Aircraft Inc., sole member
By: ________________________________
Name: __________________________
Title: _________________________
PARTNERS:
PREFCO V HOLDINGS LLC, a Connecticut limited
liability company
By: Harlow Aircraft Inc., sole member
By: ________________________________
Name: __________________________
Title: _________________________
PITNEY XXXXX REAL ESTATE FINANCING CORPORATION, a
Delaware corporation
By: _______________________________
Name: _________________________
Title: ________________________
22
PURCHASER:
AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware
limited liability company
By: _____________________________________
Name: _______________________________
Title: ______________________________
23
ESCROW AGENT:
By: _____________________________________
Name: _______________________________
Title: ______________________________
24
EXHIBITS A-1 THROUGH A-85
[legal descriptions to be inserted]
EXHIBIT B
Lease
That certain Lease dated July 31, 1990 between First Union Corporation
and First Union National Bank (successor in interest by merger or otherwise), as
lessee, and PREFCO Five Limited Partnership (successor in interest to PREFCO V
Limited Partnership), as lessor, as amended by that certain Agreement Re:
Modification of Lease, dated November 27, 1995, that certain Modification
Agreement dated as of September 30, 1992, that certain Modification Agreement
dated as of January 22, 1996, and that certain Modification Agreement dated as
of December 20, 1999.
EXHIBIT C
Mortgage
That certain Trust Indenture, Deed of Trust and Security Agreement made
by PREFCO V Limited Partnership, a Connecticut Limited Partnership (now known as
Prefco Five Limited Partnership) and Carolina-Relco Limited Partnership, as
grantors, to the Chase Manhattan Bank (National Association) (now known as XX
Xxxxxx Xxxxx Bank) as corporate trustee and Xxxxxxx X. Xxxxxxxxxx (now Xxxxxx X.
Deck) as individual trustee, jointly as the trustees, and the Registered Owners
of Notes, as beneficiaries.
EXHIBIT D
First Union Corporation and First Union National Bank Estoppel Certificate
To: American Financial Resource Group, LLC ("American Financial")
Re: Lease dated July 31, 1990, as amended by that certain Agreement Re:
Modification of Lease dated November 27, 1995, that certain
Modification Agreement dated as of September 30, 1992, that certain
Modification Agreement dated as of January 22, 1996, and that
certain Modification Agreement dated as of December 20, 1999
(collectively "Lease")
Landlord: PREFCO Five Limited Partnership, a Connecticut limited partnership,
successor in interest to PREFCO V Limited Partnership
Tenant: First Union Corporation and First Union National Bank, successor in
interest by merger or otherwise
Premises: See Exhibits "A-1 through A-85" attached hereto and incorporated
herein by reference
Ladies and Gentlemen:
The undersigned is the tenant ("Tenant") pursuant to the Lease. Tenant
understands that Landlord and American Financial have entered into that certain
Purchase and Sale Agreement dated _______ ___, 2002, and further understands
that American Financial is relying on the statements made by it in this Estoppel
Certificate. Tenant hereby certifies, represents and warrants to American
Financial as follows as of the date set forth below:
1. A true, correct and complete copy of the Lease is attached hereto as
Exhibit B which is incorporated herein by this reference. The Lease has not
been amended, modified, supplemented or superseded in any manner
whatsoever, except as specifically stated above. The Lease constitutes a
complete statement of the agreements, covenants, terms and conditions of
Landlord and Tenant with respect to the letting of the Premises, and there
are no other agreements or understandings between Landlord and Tenant with
respect to the Premises or the Lease, except for that certain Option
Agreement, Option and Subordination Agreement, Tripartite Agreement, and
Assignment of Lease, copies of which are attached hereto as Exhibit C.
2. The term of the Lease commenced on July 31, 1990 and will end on August 31,
2010.
3. The Lease is in full force and effect and has not been terminated with
respect to the Premises.
4. To the best of Tenant's knowledge, there are no defaults under the Lease
(i) in the payment of rent or any other amounts due under the Lease or (ii)
in the observance or performance of
-28-
any other agreement, covenant, term or condition to be observed or
performed by Landlord or Tenant. Tenant has no knowledge of any state of
facts or events that, with the passage of time or the giving of notice, or
both, would constitute a default by Landlord or Tenant.
5. Tenant has paid all installments of: (i) Basic Rent (as defined in the
Lease) that is payable to Landlord through the month of _________, and (ii)
Additional Rent (as defined in the Lease) that is payable to Landlord, if
any, through the month of _________.
6. To the best of Tenant's knowledge, all conditions under the Lease to be
performed by Landlord have been completed to its satisfaction. To the best
of Tenant's knowledge, there is no work to be performed by Tenant that has
not been completed, and there are no defects or deficiencies that may
entitle Landlord to cancel the Lease or to receive any other benefit or
relief. Tenant has no knowledge that the Premises are not in compliance
with any federal, state or local law, statute, rule, regulation, code or
ordinance applicable to the Premises. Tenant has not received notice of any
"casualty" (as defined in the Lease) or of a pending or threatened
"condemnation" (as defined in the Lease) with respect to the Premises.
Tenant has not given Landlord notice that it intends to terminate the Lease
or to provide a substitute parcel with respect to the Premises pursuant to
Paragraph 13 of the Lease.
7. Landlord did not require a security deposit from Tenant under the Lease.
8. The party executing this Estoppel Certificate on behalf of Tenant is fully
authorized and empowered to do so.
9. Tenant is the sole tenant under the Lease and is the sole tenant in
possession of the Premises, or any portion thereof, except as set forth on
Exhibits D-1 through D-___.
[remainder of page intentionally left blank]
-29-
The certifications, representations and warranties herein made shall be
binding upon Tenant, its heirs, legal representatives, successors and assigns,
and shall inure to benefit of American Financial and its respective successors
and assigns.
Dated:_______________, 2003
FIRST UNION CORPORATION
By: _______________________
Name: _________________
Title: ________________
FIRST UNION NATIONAL BANK
By: _______________________
Name: _________________
Title: ________________
-00-
XXXXXXXX X-0 THROUGH A-85 TO EXHIBIT D
[legal descriptions to be attached at Closing]
-31-
EXHIBIT B TO EXHIBIT D
[lease and all amendments/modifications to be attached at Closing]
-32-
EXHIBIT C TO EXHIBIT D
[option agreement, option and subordination agreement, tripartite
agreement and assignment of lease to be attached at Closing]
EXHIBITS D-1 THROUGH D- TO EXHIBIT D
[insert legal descriptions at Closing]
EXHIBIT X-0
[XXXXX XXXXXXXX - XXXX
XXXXXX AND IMPROVEMENTS]
Prepared by and after recording Property No. ______
return to: Street Address:
___________________ ___________________
___________________ ___________________
___________________ ___________________
___________________
Parcel Identification No. ___________
Tax Lot Number: ____________
Excise Tax: $ ______________
SPECIAL WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership,
successor in interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited
partnership, the address of which is c/o Pitney Xxxxx Credit Corporation, 00
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("Grantor"), in consideration of Ten
and 00/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, have and by these
presents do grant, bargain, sell, and convey to AMERICAN FINANCIAL RESOURCE
GROUP, LLC, a Delaware limited liability company, having its principal place of
business at ________________ ("Grantee"), an estate for years ("Land Estate") in
that parcel or parcels of land in the County of _____________, State of North
Carolina, more particularly described on Exhibit A attached hereto and made a
part hereof, and in Grantor's right, title, and interest, if any, in and to all
streets and roads abutting the said parcel or parcels and all easements,
privileges, tenements, hereditaments, and appurtenances belonging unto said
parcel or parcels or in anywise appertaining thereto (the "Premises"), said Land
Estate to terminate at the end of August 31, 2010.
TOGETHER WITH all right, title, and interest of Grantor as the fee owner
of, in, and to all buildings and improvements now located on the Premises and
hereafter located or erected thereon, in replacement of existing buildings and
improvements, whether below or above grade level, and all easements, privileges,
tenements, hereditaments, and appurtenances belonging unto said buildings and
improvements or in anywise appertaining thereto (all such buildings and
improvements being collectively referred to as the "Improvements"), which are
intended to be and remain real property, and to become and remain the sole and
exclusive property of Grantee and its successors and assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are described on Exhibit B attached hereto and made a part
hereof.
TO HAVE AND TO HOLD the Land Estate, and all privileges and appurtenances
thereto belonging, unto Grantee and its successors and assigns through and
including August 31, 2010 and to have and to hold the Improvements unto Grantee
and its successors and assigns forever.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, that title
thereto is marketable and free and clear of all encumbrances except as herein
stated and that, except as herein stated, Grantor will warrant and defend the
title against the lawful claims of all persons claiming by, through or under
Grantor.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee all of
Grantor's interest in the Premises and the Improvements [NOTE: ADDITIONAL
LANGUAGE TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS REMAINDER
INTEREST TO GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designation Grantor and Grantee as used herein shall include said
parties, their successors and assigns, and shall include singular, plural,
masculine, feminine or neuter as required by context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor has caused this deed to be executed and its
seal to be hereto affixed and attested by its officers hereunto duly authorized,
as of the ____ day of _____________, 2003.
GRANTOR:
PREFCO FIVE LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its
general partner
By: Harlow Aircraft Inc., sole
member
By: _______________________
Name: _________________
Title: ________________
STATE OF CONNECTICUT )
: SS.:
County of HARTFORD )
On the ___ day of_________________ , 2003 before me, the undersigned,
a Notary Public in and for said State, personally appeared _______________,
known to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
_____________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-1
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-1
[to be added at Closing as set forth in Title Policy]
EXHIBIT E-2
[FLORIDA - LAND
ESTATE AND IMPROVEMENTS]
Prepared by and after recording Property No. ________
return to: Street Address:
__________________________ _____________________
__________________________ _____________________
__________________________ _____________________
__________________________
Property Appraiser's
Parcel Identification
Number: RE # __________________
STATE OF FLORIDA Grantee Tax ID #___________
COUNTY OF _____________________
SPECIAL WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
THIS INDENTURE is made as of the ____ day of ______________, 2003, from
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership, successor in
interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited partnership, the
address of which is c/o Pitney Xxxxx Credit Corporation, 00 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 ("Grantor"), to AMERICAN FINANCIAL RESOURCE GROUP,
LLC, a Delaware limited liability company, having its principal place of
business at _____________ ("Grantee").
WITNESSETH that Grantor, for and in consideration of the sum or Ten and
00/100 Dollars ($10.00) in hand paid, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby grants,
bargains, and conveys to Grantee an estate for years (the "Land Estate") in the
interest of Grantor in the following (a) that parcel or parcels of land situate,
lying, and being in the County of _________________, State of Florida, more
particularly described in Exhibit A attached hereto and incorporated herein by
reference, (b) all right, title and interest of Grantor, if any, in and to all
streets and roads abutting the said parcel or parcels and (c) all easements,
privileges, tenements, hereditaments, and appurtenances belonging unto said
parcel or parcels or in anywise appertaining thereto (collectively, the
"Premises"), said estate for years to expire on August 31, 2010.
TOGETHER WITH all of the interest of Grantor as the fee simple owner of,
in, and to all buildings and improvements now located on the Premises, whether
below or above grade
level, and all easements, privileges, tenements, hereditaments, and
appurtenances belonging unto said buildings and improvements or in anywise
appertaining thereto (all such buildings and improvements being collectively
referred to as the "Improvements"), which are intended to be and remain real
property and to become and remain the sole and exclusive property of Grantee and
its successors and assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are set forth on Exhibit B attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Land Estate and all privileges and appurtenances
thereto belonging, unto Grantee and its successors and assigns through and
including August 31, 2010 and to have and to hold the Improvements unto Grantee
and its successors and assigns forever.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, that title
thereto is marketable, and Grantor does hereby specifically warrant the title to
the Land Estate and the Improvements and will defend the same against the lawful
claims of all person claiming by, through, or under Grantor, and no other.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee an estate
for years in the Premises and fee simple title to the Improvements, [NOTE:
ADDITIONAL LANGUAGE TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS
REMAINDER INTEREST TO GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designations Grantor and Grantee as used herein shall include said
parties, their heirs, administrators, executors, successors, and assigns, and
shall include singular, plural, masculine, feminine, or neuter as required by
context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed in
its name by its duly authorized officers and caused its corporate seal to be
hereto affixed the day and year first above written.
GRANTOR:
SIGNED AND SEALED IN PREFCO FIVE LIMITED
THE PRESENCE OF: PARTNERSHIP, a Connecticut limited
Partnership
_______________________________
Name: _________________________ By: Prefco V Holdings LLC, a Connecticut
(Type or Print) limited liability company, its general
partner
Name: _________________________ By: Harlow Aircraft Inc., sole member
(Type or Print)
By: _______________________________
Name: _________________________
Title: ________________________
[Affix Corporate seal]
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of ________________, 2003 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
________________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-2
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-2
[to be added at Closing as set forth in Title Policy]
EXHIBIT E-3
[GEORGIA - LAND ESTATE
AND IMPROVEMENTS]
Property Number: _________
Street Address:
_________________________
_________________________
_________________________
Prepared by and after recording
Return to:
___________________________
___________________________
___________________________
___________________________
STATE OF GEORGIA
COUNTY OF _____________________
LIMITED WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
THIS INDENTURE is made the ___ day of ________________ , 2003 between
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership, successor in
interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited partnership
("Grantor"), the address of which is c/o Pitney Xxxxx Credit Corporation, 00
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, to AMERICAN FINANCIAL RESOURCE
GROUP, LLC, a Delaware limited liability company ("Grantee"), having its
principal place of business at_________________.
WITNESSETH that: Grantor, for and in consideration of the sum of Ten and
00/100 Dollars ($10.00) in hand paid at and before the sealing and delivery of
these presents, the receipt and adequacy of which are hereby acknowledged, has
granted, bargained, sold, aliened, conveyed, and confirmed, and by these
presents does grant, bargain, sell, alien, convey, and confirm unto Grantee an
estate for years (the "Land Estate") in that parcel or parcels of land in
__________________ County, Georgia, more particularly described in Exhibit A
attached hereto and incorporated herein by reference and in Grantor's right,
title, and interest, if any, in and to all streets and roads abutting the said
parcel or parcels and all easements, privileges, tenements, hereditaments, and
appurtenances belonging unto said parcel or parcels or in anywise appertaining
thereto (the "Premises"), said Land Estate to expire
on August 31, 2010.
TOGETHER WITH all right, title, and interest of Grantor as the fee simple
owner of, in, and to all buildings and improvements now located on the Premises
and hereafter located or erected on the Premises in replacement of existing
buildings and improvements, whether below or above grade level, and all
easements, privileges, tenements, hereditaments, and appurtenances belonging
unto said buildings and improvements or in anywise appertaining thereto (all
such buildings and improvements being collectively referred to as the
"Improvements"), which are intended to be and remain real property and to become
and remain the sole and exclusive property of Grantee and its successors and
assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are set forth on Exhibit B attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Land Estate, with all and singular the rights,
members, privileges, and appurtenances thereof, to the same being, belonging, or
in anywise appertaining, to the only proper use, benefit, and behoof of Grantee
through and including August 31, 2010; and to have and to hold the Improvements,
with all and singular the rights, members, and appurtenances thereof, to the
same being, belonging, or in anyway appertaining, to the only proper use,
benefit, and behoof of Grantee forever in FEE SIMPLE.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, title thereto is
marketable, Grantor has done nothing to impair such title as Grantor received,
and Grantor, except as herein stated, will warrant and forever defend the right
and title to the Land Estate and the Improvements unto Grantee against the
claims of all persons owning, holding, or claiming by, through, or under
Grantor.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee the Land
Estate and the fee simple title in the Improvements [NOTE: ADDITIONAL LANGUAGE
TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS REMAINDER INTEREST TO
GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designations Grantor and Grantee as used herein shall include said
parties, their heirs, administrators, executors, successors, and assigns, and
shall include singular, plural, masculine, feminine, or neuter as required by
context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor, by its duly authorized officers, has
signed and sealed this deed the day and year above written.
Signed, sealed, and GRANTOR:
delivered this ______ day
of ____________, 2003 PREFCO FIVE LIMITED
PARTNERSHIP, a Connecticut limited
partnership
__________________________
Unofficial Witness By: Prefco V Holdings LLC, a
Connecticut limited liability
company, its general partner
__________________________
Notary Public By: Harlow Aircraft Inc., sole
member
[Notarial Stamp or Seal]
By: ______________________
Name: ________________
Title: _______________
My commission expires: Attest: __________________
Name: ________________
Title: _______________
___________________________
[Affix Corporate Seal]
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of _____________ , 2003 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
____________________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-3
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-3
[to be added at Closing as set forth in Title Policy]
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made
and effective as of this ______ day of __________, 2003 (the "Closing Date"),
between PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership
(successor in interest to PREFCO V Limited Partnership ("Assignor")), and
AMERICAN FINANCIAL RESOURCE GROUP, LLC, a ____________ limited liability company
("Assignee").
W I T N E S S E T H
WHEREAS, Prefco is the owner (i) of an estate for years (the
"Estate for Years") expiring on August 31, 2010 (the "Estate for Years
Expiration Date") in those certain parcels of land more particularly described
in Exhibits A-1 through A-85 annexed hereto and made a part hereof (the "Land"),
and (ii) in fee of (a) all buildings, improvements and structures now or
hereafter located on the Land (the "Improvements") and (b) certain equipment and
fixtures attached thereto (the Estate for Years, Option Rights (defined below),
Improvements, equipment, and fixtures are hereinafter collectively referred to
as the "Property"); and
WHEREAS, Carolina-Relco Limited Partnership, a Connecticut limited
partnership ("Remainderman"), is the fee owner of the Land, subject to the
Estate for Years; and
WHEREAS, Assignor has options, pursuant to the Option and Subordination
Agreement (the "Option Agreement") dated as of July 31, 1990, between Assignor,
as optionee, and Remainderman, as optionor, including without limitation (i) the
option to lease the Land for a period beyond the Estate for Years Expiration
Date, (ii) the option to purchase the Land, and (iii) the option to refinance
the Property (which options are together called the "Option Rights"); and
WHEREAS, the Land and the Improvements are subject to the terms and
conditions of that certain lease (the "Lease") between Assignor, as landlord,
and First Union Corporation and First Union National Bank, successor in interest
by merger or otherwise to First Union National Bank of North Carolina, First
Union National Bank of Georgia, and First Union National Bank of Florida, as
tenant ("Lessee"), as more fully described in Exhibit B annexed hereto and made
a part hereof; and
WHEREAS, Assignor, Remainderman and Lessee are parties to that certain
agreement (the "Tripartite Agreement") dated as of July 31, 1990 setting forth
the understanding among the parties with respect to certain rights of the lessee
under the Lease relating to the purchase of the Property and the Land and
certain other matters; and
WHEREAS, pursuant to the terms and conditions of the Purchase and Sale
Agreement dated as of _________ ___, 2002, between Assignor and Assignee,
Assignor has agreed to assign to Assignee all of its right, title and interest
in, to and under the Option
Agreement, the Lease and the Tripartite Agreement (collectively, the "Operative
Documents") upon the terms and conditions hereof; and
WHEREAS, Assignee desires to assume all of Assignor's obligations under
the Operative Documents arising on and after on the Closing Date upon the terms
and conditions hereof.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), the
mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, transfers and sets over to Assignee all
of its right, title and interest in, to and under the Operative Documents upon
the terms and conditions herein set forth, to have and to hold the same unto
Assignee, its successors and assigns, forever, subject to all of the terms,
covenants and conditions of the Operative Documents.
2. Assignee hereby accepts the assignment of Assignor's right, title
and interest in, to and under the Operative Documents upon the terms and
conditions herein set forth and hereby assumes and shall fully punctually pay
and perform and observe all of the terms, covenants and conditions of the
Operative Documents by Assignor arising from and after the Closing Date.
3. Assignor shall indemnify and hold harmless Assignee from and
against any and all claims, liabilities, obligations, costs and expenses,
including, without limitation, reasonable attorneys' fees, which arise out of
the Operative Documents and relate to the period prior to the Closing Date.
Assignee shall indemnify and hold harmless Assignor from and against any and all
claims, liabilities, obligations, costs and expenses, including, without
limitation, reasonable attorneys, fees, which arise out of the Operative
Documents and relate to the period on or after the Closing Date.
4. This Assignment may be amended at any time by Assignor and
Assignee but only by an instrument in writing signed by Assignor and Assignee.
5. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
6. This Assignment may be executed in two or more counterparts, all
of which shall be considered one and the same Assignment.
7. This Assignment shall be governed and construed in accordance with
the laws of the State of Nebraska, without regard to any applicable principles
of conflicts of laws.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
ASSIGNOR:
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut
limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its general
partner
By: Harlow Aircraft Inc., sole member
By: __________________________
Name: ____________________
Title: ___________________
ASSIGNEE:
AMERICAN FINANCIAL RESOURCE GROUP, LLC,
a Delaware limited liability company
By: ____________________
Name: ______________
Title: _____________
STATE OF CONNECTICUT )
: SS.:
County OF HARTFORD )
On the ___ day of _________________, 2003 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
______________________________________
Notary Public
ACKNOWLEDGEMENT
[insert appropriate acknowledgement for assignee]
EXHIBITS A-1 THROUGH A-85 TO EXHIBIT F
[legal descriptions to be attached at Closing]
EXHIBIT G
PREFCO FIVE LIMITED PARTNERSHIP
00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
________, 2002
Attention: Corporate Real Estate
First Union Corporation
Two First Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
First Union Corporation
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
Re: Lease Agreement dated July 31, 1990 ("Lease")
Dear Tenant:
The undersigned has entered into a Purchase and Sale Agreement with
American Financial Resource Group, LLC ("American Financial") to purchase the
portfolio of properties contained in the Lease. In connection with such
agreement, we are requesting that you provide the following documentation with
regard to each property subject to the Lease:
1. Copies of all Environmental Reports (Article 10);
2. Copies of all notices of violations;
3. Copies of any notices of condemnation;
4. Copies of all of the subleases for each property;
5. Listing of properties no longer occupied by Tenant;
6. Alterations and Improvements to the properties in excess of $400,000;
and
7. Copies of Tenants most recent year end financial statements.
Please forward copies of these documents to the attention of Xxx
Xxxxxx at the
-2-
address indicated above. If you have any questions, please contact Xxx directly
at (000) 000-0000.
PREFCO FIVE LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: Prefco V Holdings LLC, a
Connecticut limited liability
company, its general partner
By: Harlow Aircraft Inc.,
sole member
By: _________________________
Name: ___________________
Title: __________________
-3-
EXHIBIT H
Prefco Five Limited Partnership Estoppel Certificate
To: American Financial Resource Group, LLC ("American Financial")
Re: Lease dated July 31, 1990, as amended by that certain Agreement Re:
Modification of Lease dated November 27, 1995, that certain
Modification Agreement dated as of September 30, 1992, that certain
Modification Agreement dated as of January 22, 1996, and that
certain Modification Agreement dated as of December 20, 1999
(collectively "Lease")
Landlord: PREFCO Five Limited Partnership, a Connecticut limited partnership,
successor in interest to PREFCO V Limited Partnership
Tenant: First Union Corporation and First Union National Bank, successor in
interest by merger or otherwise
Premises: See Exhibits "A-1 through A-85" attached hereto and incorporated
herein by reference
Ladies and Gentlemen:
The undersigned is the landlord ("Landlord") pursuant to the Lease.
Landlord and American Financial have entered into that certain Purchase and Sale
Agreement dated _______ ___, 2002 relating to the sale of the Premises, and
Landlord understands that American Financial is relying on the statements made
by it in this Estoppel Certificate. Landlord hereby certifies, represents and
warrants to American Financial as follows as of the date set forth below:
1. A true, correct and complete copy of the Lease is attached hereto as
Exhibit B which is incorporated herein by this reference. The Lease has not
been amended, modified, supplemented or superseded in any manner
whatsoever, except as specifically stated above. The Lease constitutes a
complete statement of the agreements, covenants, terms and conditions of
Landlord and Tenant with respect to the letting of the Premises, and there
are no other agreements or understandings between Landlord and Tenant with
respect to the Premises or the Lease, except for that certain Option
Agreement, Option and Subordination Agreement, Tripartite Agreement, and
Assignment of Lease, copies of which are attached hereto as Exhibit C.
2. The term of the Lease commenced on July 31, 1990 and will end on August 31,
2010.
3. The Lease is in full force and effect and has not been terminated with
respect to the Premises.
4. To the best of Landlord's knowledge, there are no defaults under the Lease
(i) in the payment of rent or any other amounts due under the Lease or (ii)
in the observance or performance of
-4-
any other agreement, covenant, term or condition to be observed or
performed by Landlord or Tenant. Landlord has no knowledge of any state of
facts or events that, with the passage of time or the giving of notice, or
both, would constitute a default by Landlord or Tenant.
7. Landlord has received all installments of: (i) Basic Rent (as defined in
the Lease) that is payable to Landlord through the month of ______________,
and (ii) Additional Rent (as defined in the Lease) that is payable to
Landlord, if any, through the month of
8. To the best of Landlord's knowledge, all conditions under the Lease to be
performed by Tenant have been completed to the satisfaction of Landlord. To
the best of Landlord's knowledge, there is no work to be performed by
Tenant that has not been completed, and there are no defects or
deficiencies that may entitle Landlord to cancel the Lease or to receive
any other benefit or relief. Landlord has no knowledge that the Premises
are not in compliance with any federal, state or local law, statute, rule,
regulation, code or ordinance applicable to the Premises. Landlord has not
received notice of any "casualty" (as defined in the Lease) or of a pending
or threatened "condemnation" (as defined in the Lease) with respect to the
Premises. Landlord has not received notice from Tenant that Tenant intends
to terminate the Lease or to provide a substitute parcel with respect to
the Premises pursuant to Paragraph 13 of the Lease.
7. Landlord did not require a security deposit from Tenant under the Lease.
10. The party executing this Estoppel Certificate on behalf of Landlord is
fully authorized and empowered to do so.
[remainder of page intentionally left blank]
-5-
The certifications, representations and warranties herein made shall be
binding upon Landlord, its heirs, legal representatives, successors and assigns,
and shall inure to benefit of American Financial and its respective successors
and assigns.
Dated:_______________, 2003
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut
limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its general
partner
By: Harlow Aircraft Inc., sole member
By: _______________________
Name: _________________
Title: ________________
-6-
EXHIBITS A-1 THROUGH A-85 TO EXHIBIT H
[legal descriptions to be attached at Closing]
-7-
EXHIBIT B TO EXHIBIT H
[lease and all amendments/modifications to be attached at Closing]
-8-
EXHIBIT C TO EXHIBIT H
[option agreement, option and subordination agreement, tripartite
agreement and assignment of lease to be attached at Closing]
EXHIBIT I
AMENDMENTS TO AGREEMENT
Section 1 shall be amended and restated to read as follows:
1. Purchase and Sale of Partnership Interests. On the Closing Date
and subject to the terms and conditions of this Agreement, each Partner shall
sell, assign and convey, and Purchaser shall purchase, the Partnership Interest
held by Partner on the terms and conditions provided in this Agreement.
Section 3 shall be amended and restated to read as follows:
3. Purchase Price. Purchaser shall pay, and the Partners shall
accept, pro rata based on the percentage of Partnership Interests owned by them
respectively ("Pro Rata Interest"), as the purchase price (the "Purchase Price")
for the Partnership Interests, in addition to the Purchaser acquiring the
Partnership Interests in Prefco subject to the Mortgage on the Property (or
Purchaser otherwise satisfying the Mortgage, by prepayment or otherwise), the
amount of Fifty Four Million Six Hundred Thousand and 00/100 Dollars
($54,600,000.00), as increased or decreased pursuant to the provisions of
Sections 7 and 13 hereof, which Purchase Price shall be paid by Purchaser as
follows:
(i) simultaneously with the execution of this Agreement,
Purchaser shall deposit with the Title Company (as defined is Section 7 (ii)
hereof), as escrow agent (the "Escrow Agent"), the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (together with any interest earned
thereon, the "Deposit");
(ii) simultaneously with Purchaser's satisfaction or waiver of
the conditions precedent set forth in Section 7 hereof, Purchaser shall deposit
with Escrow Agent the sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00), which amount will be added to and become part of the Deposit; and
(iii) At Closing, Purchaser shall pay or shall cause the Escrow
Agent to pay to the Partners (or their designees) the Deposit ($500,000.00 plus
accrued interest thereon) plus the balance of the Purchase Price in the amount
of Fifty Four Million One Hundred Thousand and 00/100 Dollars ($54,100,000.00)
(as increased or decreased pursuant to the provisions of Sections 7 and 13
hereof) in immediately available funds by wire transfer to accounts designated
by the Partners, such amount to be paid to the Partners based on their Pro Rata
Interest. Purchaser acknowledges that the Property is subject to the Mortgage
and that the Purchase Price shall not be diminished or otherwise reduced by
reason thereof, including, without limitation, reductions by reason of the pay
off of existing financing, prepayment penalties, or otherwise.
A new Section 12A shall be added to the Agreement to read as follows:
12A. Representations, Warranties and Covenants of Partners. Each
Partner, jointly and severally, represents, warrants and covenants to Purchaser
as of the date hereof as follows, which representations, warranties and
covenants shall be deemed to have been made again as of the Closing:
(a) Partner has all requisite power and authority to carry on its
business and to perform its obligations under this Agreement and
each of the other Closing Documents;
(b) Partner is an entity duly organized, validly existing and in good
standing under the laws of the State of Connecticut or Delaware,
as applicable, and has all requisite power and authority to carry
on its business and to execute and deliver this Agreement and
each of the other Closing Documents; and the individual executing
this Agreement on behalf of Partner hereby represents and
warrants that he, she or it has the capacity set forth on the
signature page hereof with full power and authority to bind
Partner to the terms hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Partner and constitutes a legal,
valid and binding obligation of Partner enforceable against it in
accordance with its terms except as the enforcement may be
limited by (i) the effect of the laws and judicial decisions of
the State of Connecticut or Delaware, as applicable, (ii) the
discretion of any court or governmental or public body,
authority, bureau or agency before which any proceeding may be
brought or (iii) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally;
(d) to the best of Partner's knowledge, no consent, license, approval
or authorization of, or filing, registration or declaration with,
or exemption or other action by, any governmental or public body,
authority, bureau or agency is required in connection with the
execution, delivery or performance by Partner of this Agreement
or the transactions herein contemplated or the Closing Documents
to which it is a party other than those which have been obtained;
(e) Partner's performance, execution and delivery of this Agreement
and the other Closing Documents (i) do not and will not violate
(x) Partner's certificate of formation or other charter document,
bylaws, operating agreement or partnership agreement, as
applicable, or (y) to the best of Partner's knowledge, any law,
governmental regulation, judgment, order, writ, injunction or
decree applicable to Partner in any manner which will materially
adversely affect Partner's ability to perform its obligations
hereunder, (ii) provided that all necessary consents are
obtained, do not and will not violate the provisions of, or
constitute a default or an event of default under the Mortgage,
(iii) provided that all necessary consents are obtained, do not
and will not constitute a default or an event of default under
any instrument, contract, agreement, lease or other undertaking
to which Partner is a party or by which any of its properties may
be subject or bound in a manner which will materially adversely
effect its ability to perform the same; or (iv) do not result and
will not result in the creation or imposition of any lien,
pledge, mortgage, claim, charge or encumbrance upon any of its
property pursuant to such agreement or instrument, except as
permitted by the Closing Documents;
(f) to the best of Partner's knowledge without any inquiry, there is
no action, suit or proceeding pending or threatened against or
affecting Partner or the Property in any court, or by or before
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would
have any effect on Partner's ability to execute and perform its
obligations under this Agreement;
(g) Partner is not a "foreign person" as defined in Section 1445 of
the Internal Revenue Code;
(h) Partner has not filed any voluntary petition in bankruptcy or
been adjudicated as bankrupt or insolvent, or filed any petition
or answer seeking any reorganization, liquidation, dissolution or
similar relief under any federal bankruptcy or insolvency laws,
or other relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver,
conservator or liquidator of all or any substantial part of its
properties or interest in the Land or the Property;
(i) Partner has not dealt with any broker in the negotiations of the
transactions contemplated by this Agreement. Partner shall
indemnify and hold harmless Purchaser from and against any cost,
expense (including without limitation reasonable attorneys' fees
and disbursements), claim, liability or damage arising out of any
claim or demand by any broker, consultant, finder or similar
agent claiming to have dealt with Partner in connection with this
Agreement and the transaction contemplated hereby;
(j) to Partner's actual knowledge, the Lease is in full force and
effect and has not been modified, except by that certain
Agreement Re: Modification of Lease, dated November 27, 1995,
that certain Modification Agreement dated as of September 30,
1992, that certain Modification Agreement dated as of January 22,
1996, and that certain Modification Agreement dated as of
December 20, 1999, and Partner has no actual knowledge of any
current material default in the performance of the obligations of
any
party under the Lease;
(k) after the date hereof and prior to the Closing, except as
required under the Lease, Partner shall not sell or otherwise
transfer without Purchaser's consent all or any part of the
Partnership Interest held by it, or any interest therein;
(l) after the date hereof and prior to the Closing, except as
required under the Lease, Partner shall not permit Prefco to
enter into or approve any new leases and/or subleases of the Land
and Improvements, or amend, modify or extend the Lease, without
the prior written consent of Purchaser (which consent shall not
be unreasonably withheld or delayed), except as required pursuant
to the terms and conditions of the Lease;
(m) to the best of Partner's knowledge, Prefco is the owner of the
Estate for Years in the Land, and, to the best of Partner's
knowledge, Prefco is the fee owner of the Improvements and
Property, all of which are subject to the Permitted Exceptions.
Notwithstanding the foregoing, Partner makes no representations,
warranties or covenants with respect to any title matters, it
being expressly agreed that Purchaser is relying solely on title
insurance commitments issued by the Title Company with respect to
such matters;
(n) the making, execution and delivery of this Agreement by Partner
has been induced by no representations, warranties, covenants or
agreements other than those expressly set forth in this
Agreement;
(o) Partners own the Partnership Interests held by them free and
clear of all liens, trusts, encumbrances, security interests,
charges, options and claims of any kind. Partners own all
outstanding equity and voting interests in Prefco. All of the
Partnership Interests have been duly authorized and validly
issued, are fully paid and non-assessable, were not issued in
violation of the terms of any agreement or other understanding
binding upon Prefco and were issued in compliance with all
applicable charter documents of Prefco and to the best of its
knowledge, all applicable federal, state and foreign securities
laws, rules and regulations. There are no outstanding
subscriptions, options, warrants, convertible securities, calls,
commitments, agreements or rights (contingent or otherwise) of
any character to purchase or otherwise acquire from Prefco or
either Partner any partnership interests of, or any securities
convertible into, the partnership interests of Prefco. There are,
and have been, no preemptive rights with respect to the issuance
of the partnership interests of Prefco;
(p) Prefco has no subsidiaries and no stock or other equity, voting
or ownership interest (whether controlling or not) in any
corporation, association, partnership, joint venture or other
entity;
(q) To the best of its knowledge, Prefco is not subject to or in
violation of any judgment, decree, order or decision of any
federal, state or local court or governmental agency or authority
or any statute, law, ordinance, rule or regulation of any
federal, state, local or other governmental agency or body or of
any other type of regulatory body;
(r) Prefco does not now conduct nor has it ever conducted any
business except for the ownership of the Property. Except for the
Lease (together with recorded copies of Short Form Lease and
Memorandum of Lease), Mortgage, Note Purchase Agreement, Series A
9.70% Secured Note Due 2000, Series B 9.91% Secured Note Due
2004, Series C 10.01% Secured Note Due 2007, Series D 10.01%
Secured Note Due 2010, Series E 10.42% Secured Note Due 2010,
Series F 10.55% Secured Note due 2010, Assignment of Lease,
various UCC Financing Statements, Agreement of Sale and Purchase,
Tripartite Agreement, Option and Subordination Agreement, Option
Agreement, Owner's Certificate, Power of Attorney, and all other
operative documents (including, without limitation, all
modification agreements and documents relating thereto), Prefco
is not a party to, or subject to any liability, obligation or
restriction of any kind under, any written or oral contract,
agreement, instrument, license or other document or instrument
that constitutes a contract under applicable law;
(s) to the best of Partner's knowledge without any inquiry, (i) there
is no claim, action, lawsuit, arbitration, administrative or
other proceeding, or criminal or other governmental
investigation, inquiry or prosecution pending or threatened
against Prefco (together, "Litigation"), (ii) no claim has been
asserted and no event has occurred that might reasonably be
expected to result in Litigation against Prefco and (iii) there
is no reasonable basis for any such claim;
(t) intentionally omitted;
(u) Prefco does not now have nor has it ever had any employees;
(v) attached as Schedule 12A(v) is a pro-forma balance sheet as of
the date hereof; Prefco has no liabilities except as set forth on
such balance sheet;
(w) Prefco is a partnership for federal, state and local income tax
purposes;
(x) Prefco has delivered to Purchaser true, correct and complete
copies of its certificate of limited partnership and partnership
agreement;
(y) on the Closing Date, the Partners shall cause all present
managers, officers and directors of Prefco to resign as of the
Closing Date;
A new Section 12B shall be added to the Agreement to read as follows:
12B. Indemnity. From and after the Closing, the Partners, jointly and
severally, shall indemnify and hold harmless Purchaser and each of Purchaser's
managers, directors, officers, partners, members, stockholders, employees, and
their successors and assigns (each, a "Purchaser Indemnified Party") from and
against any costs and expenses (including attorney's fees), judgments, fines,
losses, claims and damages (collectively, "Damages"), incurred by any Purchaser
Indemnified Party resulting from, related to or arising out of in any way to any
(a) misrepresentation, omission, breach of warranty or nonfulfillment of any
agreement or covenant by or on the part of the Partners pursuant to Section 12A
above and (b) liabilities, obligations or the operations of Prefco which arise
out of or relate to any period prior to or on the Closing Date.
