October 21, 1996
The Price Reit, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Executive Vice President
Re: Amended and Restated Credit Agreement, dated as of November 1, 1995, among
The Price Reit, Inc. ("BORROWER"), Xxxxxx Guaranty Trust Company of New York, as
Agent ("AGENT") and the Banks named therein, as modified by the letter, dated
December 20, 1995 and by the letter, dated March 22, 1996 (as so amended, the
"CREDIT AGREEMENT")
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Dear Xxxxxx:
Reference is hereby made to the Credit Agreement. Unless otherwise defined
herein, capitalized terms used herein shall have the meanings assigned to them
in the Credit Agreement.
(1) Effective as of October 22, 1996, the definition of "Applicable Margin" is
hereby deleted and the following inserted in its place:
"APPLICABLE MARGIN" means
(i) with respect to Base Rate Loans, 0.500%; and
(ii) with respect to LIBOR Rate Loans, 1.300~; provided, however, at such time
as the Borrower shall receive, and for so long as the Borrower shall maintain, a
long-term senior unsecured debt rating of not less than "BBB-" from Standard &
Poor's Ratings Services and "Baa3" from Xxxxx'x Investors Service, Inc.
"Applicable Margin" with respect to LIBOR Rate Loans, shall mean 1.250%.
(2) Notwithstanding the provisions of Section 7.1 of the Credit Agreement, the
Company shall be permitted to purchase the property commonly known as Centennial
Plaza, Oklahoma City, Oklahoma, subject to two mortgages, in the original
pricipal amounts of $5,925,000 and $6,590,000, and with a current aggregate
outstanding balance of approximately $11,900,000, and such mortgages shall be
deemed to be Permitted Liens and to be set forth on Schedule 7.1.
(3) Except as set forth above, the Credit Agreement shall continue unmodified
and remain in full force and effect.
(4) This letter may be executed in any number of counterparts, all of which
taken together shall constitute but one and the same instrument.
(5) This letter shall be governed by, and construed in accordance with, the laws
of the State of New York.
Please indicate your agreement with the foregoing by signing the enclosed copy
of this letter in the space provided below and returning it to the Agent.
Very truly yours,
XXXXXX GUARANTY TRUST COMPANY,
as Agent
By: XXXXXXX X'XXXXXXX
-----------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as a Bank
By: XXXXXXX X'XXXXXXX
-----------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A. as a
Bank
By: XXX XXXXXXXX
------------
Name: Xxx Xxxxxxxx
Title: Vice President
CORESTATES BANK, N.A., as a
Bank
By: XXXXXXX X. XXXXX, XX.
---------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
Accepted and Agreed to:
THE PRICE REIT, INC.
By: XXXXXX X. XXXXX
---------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice
President
Dated: October 12, 1996
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
By and Between
CENTENNIAL PLAZA LIMITED PARTNERSHIP,
an Oklahoma limited partnership,
as Seller
THE PRICE REIT, INC.
a Maryland corporation,
as Buyer
and
LAWYER'S TITLE INSURANCE CORPORATION,
as Escrow Holder
August 23, 1996
Article I PROPERTY 1
1.1 Land 1
1.2 Appurtenances 1
1.3 Improvements 1
1.4 Leases and Rents 2
1.5 Personal Property 2
1.6 Intangible Property 2
ARTICLE II PURCHASE PRICE; MEMORANDUM OF AGREEMENT 2
2.1 Purchase Price 2
2.2 Payment of Purchase Price 3
2.3 Xxxxxxx Money Deposit 3
2.4 Investment of Deposit 3
2.5 Deposit as Liquidated Damages 3
ARTICLE 4
3.1 Title 4
3.2 Other Conveyance Documents 4
ARTICLE IV CONDITIONS TO CLOSING 5
A. Buyer's Conditions to Closing 5
4.1 Non-Foreign Status of Seller 5
4.2 Review and Approval of Title and Survey 5
4.3 Review and Approval of Other Makers 5
4.4 First Mortgage Loan Documents 6
4.5 Service and Other Contracts 7
4.6 Physical Characteristics of the Property 7
4.7 Governmental Permits, Approvals and Regulations 7
4.8 Representations and Warranties 7
4.9 Impairment of Property 8
4.10 Approval 8
4.11 Objections to Title or Survey 8
4.12 Objections to Property or Other Matters 9
4.13 Tenant Matters 9
4.14 Delivery of Documents 9
4.15 Discovery Zone 9
B. Seller's Conditions to Closing 9
4.16 Delivery of Documents and Purchase Price 9
4.17 Assumption of Existing Loan 10
ARTICLE V CLOSING, RECORDING AND TERMINATION 10
5.1 Deposit with Escrow Holder and Escrow Instructions 10
5.2 Closing 10
5.3 Delivery by Seller 10
5.4 Delivery By Buyer 12
5.5 Other Instruments 12
5.6 Prorations 12
5.7 Costs and Expenses 14
5.8 Closing and Recordation 14
5.9 Termination of Agreement 14
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER 15
6.1 Authority 15
6.2 Title 15
6.3 The Leases 15
6.4 No Litigation or Adverse Events 16
6.5 Compliance With Laws 16
6.6 No Defaults in Other Agreements 16
6.7 Eminent Domain 16
6.8 Licenses, Permits, CO's, Zoning, etc. 16
6.9 Taxes and Assessments 16
6.10 Environment 17
6.11 Physical Condition 18
6.12 Employees 18
6.13 Mechanic's Liens 18
6.14 Operating Statements 18
6.15 Disclosure 18
6.16 No Leases of Property or Assets 19
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF BUYER 19
7.1 Representations and Warranties of Buyer 19
ARTICLE 19
8.1 Possession 19
8.2 Loss, Destruction and Condemnation 19
ARTICLE IX MAINTENANCE AND OPERATION OF THE PROPERTY 21
9.1 Maintenance 21
9.2 Leases and Other Agreements 21
9.3 Encumbrances 22
9.4 Consents and Notices 22
9.5 Audit Cooperation 22
ARTICLE X MISCELLANEOUS 22
10.1 Notices 22
10.2 Brokers and Finders 23
10.3 Successors and Assigns 23
10.4 Amendments 24
10.5 Continuation and Survival of Indemnities, Representations,
Warranties and Post-Closing Obligations 24
10.6 Interpretation 24
10.7 Governing Law 24
10.8 Merger of Prior Agreements 24
10.9 Attorneys' Fees 24
10.10 Notice of Termination 24
10.11 Specific Performance; Damages 25
10.12 Relationship 25
10.13 Counterparts 25
10.14 Time of the Essence 26
DEFINITIONS
The following is a list of defined terms used herein and the sections in which
such terms are defined.
Term Section
---- -------
Agreement Introduction
Approved Contracts 4.5
Appurtenances 1.2
Assignment of Intangible Property,
Warranties and Guarantees 1.6
Assignment of Leases and Rents 1.4
Xxxx of Sale 1.5
Buyer Introduction
Buyer Approval 4.9
Closing 5.2
Closing Date 5.2
Code 4.1
Contracts 4.5
Deed 1.1
Xxxxxxx Money Deposit 2.3
Escrow Holder Introduction
Exiting Loan 4.3(k)
Improvements 1.3
Intangible Property 1.6
Land 1.1
Leases 1.4
Major Lease 4.9
Non-Foreign Certificate 4.1
Personal Property 1.5
Permitted Exceptions 4.11
Phase I Report 4.6
Property 1.6
Purchase Price 2.1
Real Property 1.6
Rent Roll Schedule G
Rents 1.4
Review Period 4.12
Seller Introduction
Survey 4.2(c)
Title Company 3.1
Title Policy 3.1
Title Report 4.2(a)
Update Certificate 5.3(k)
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("AGREEMENT") is made
and entered into as of August 23, 1996, by and between CENTENNIAL PLAZA LIMITED
PARTNERSHIP, an Oklahoma limited partnership ("SELLER"), THE PRICE REIT, INC., a
Maryland corporation ("BUYER"), and LAWYER'S TITLE INSURANCE CORPORATION
("ESCROW HOLDER"), with reference to the following facts:
A. Seller is the owner of the Property, as hereinafter defined.
B. Buyer desires to purchase from Seller and Seller desires to sell to Buyer the
Property, all on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the mutual agreements
herein set forth, and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer, and where appropriate Escrow
Holder, agree as follows:
ARTICLE I
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase from Seller, subject to the terms and conditions set forth herein, the
following:
1.1 LAND. That certain real property (the "LAND") described in SCHEDULE A
hereto, all of which shall be conveyed to Buyer pursuant to a deed in the form
of SCHEDULE B hereto (the "DEED");
1.2 APPURTENANCES. All rights, privileges and easements appurtenant to and for
the benefit of the Land, including, without limitation, all minerals, oil, gas
and other hydrocarbon substances on and under the Land, as well as all
development rights, air rights, water, water rights and water stock relating to
the Land and any other easements, rights-of-way or appurtenances owned by Seller
and used in connection with the beneficial operation, use and enjoyment of the
Land, the Leases, the Rents, the Improvements, the Intangible Property, or any
other appurtenance, together with all rights of Seller in and to streets,
sidewalks, alleys, driveways, parking areas and areas adjacent thereto or used
in connection therewith, and all rights of Seller in any land lying in the bed
of any existing or proposed street adjacent to the Land (all of which are
collectively referred to as the ("APPURTENANCES");
1.3 IMPROVEMENTS. All improvements and fixtures located or to be located on the
Land, including, without limitation, all buildings and structures presently
located on the Land or to be located thereon on the Closing Date, all apparatus,
equipment and appliances presently located on the Land and used in connection
with the operation or occupancy thereof, such as heating and air conditioning
systems and facilities used to provide any utility services, parking services,
refrigeration, ventilation, garbage disposal, recreation or other services
thereto, and all landscaping and leasehold improvements of tenants, if any,
which become the property of the owner of the Land (all of which are
collectively referred to as the "IMPROVEMENTS");
1.4 LEASES AND RENTS. All leases, occupancy agreements and other similar
agreements to which Seller is a party or by which it is bound, together with all
modifications, extensions and renewals thereof, and any guarantees of any of the
foregoing with respect to or demising any part of the Land, Appurtenances or
Improvements (the "LEASES"), all income, receipts, funds and revenues of any
kind whatsoever payable under the Leases or otherwise with respect to all or any
portion of the Land, Appurtenances or Improvements (the
"RENTS", except that all damages payable by the tenant commonly known as
Discovery Zone ("DISCOVERY ZONES") as a result of the rejection by Discovery
Zone of its lease shall be excluded from Rents, and shall not be transferred to
Buyer), all of which Leases and Rents shall be transferred and assigned to Buyer
pursuant to an instrument in the form of Schedule C hereto (the "ASSIGNMENT AND
ASSUMPTION OF LEASES AND RENTS");
1.5 PERSONAL PROPERTY. All tangible personal property located or to be located
on, or situated or to be situated in and used in connection with, the Land
and/or the Improvements ("PERSONAL PROPERTY"), and all of which Personal
Property shall be transferred and assigned to Buyer pursuant to an instrument in
the form of Schedule D hereto (the "XXXX OF SALE");
1.6 INTANGIBLE PROPERTY. All of the interest of Seller in (i) any intangible
personal property which relates to and is reasonably required for the operation
and functioning of the Land, Improvements or Personal Property generally, and
(ii) any and all warranties, guarantees, permits, contracts and other rights
owned by Seller relating to the ownership, operation or functioning of all or
any part of the Property, as defined below (including without limitation all
third party guarantees and warranties, express or implied, in connection with
the construction of the Improvements) (all of which are collectively referred to
as the "INTANGIBLE PROPERTY," except that all claims, causes of action and
damages against Discovery Zone arising out of its rejection of its lease shall
be excluded from Intangible Property, and shall not be assigned to Buyer), and
all of which shall be assigned to Buyer pursuant to one or more (as determined
by Buyer) assignments in the form of SCHEDULE E hereto (the "ASSIGNMENT AND
ASSUMPTION OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES"); and
All of the items described in Sections 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 above are
hereinafter collectively referred to as the "PROPERTY." The items described in
Sections 1.1, 1.2, and 1.3 above are hereinafter referred to collectively as the
"REAL PROPERTY."
ARTICLE II
PURCHASE PRICE; MEMORANDUM OF AGREEMENT
2.1 PURCHASE PRICE. The purchase rice for the Property shall be Sixteen Million
Seven Hundred Thousand Dollars ($16,700,000.00) (the "PURCHASE PRICE"). The
Purchase Price shall be allocated among Land, Improvements and Personal Property
as Buyer shall reasonably determine.
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by Buyer into
the escrow for this Agreement to be maintained by Escrow Holder ("ESCROW") at
the Closing by wire transfer of immediately available funds in accordance with
wiring instructions to be provided by Escrow Holder; provided, however, that
Buyer shall adjust the funds to be wired pursuant to this Section 2.2 for the
following: (i) the amount of credits due to Buyer, or debits due from Buyer (as
the case may be) for prorations hereunder, (ii) the amount of the Xxxxxxx Money
Deposit (hereinafter defined) plus earnings thereon, and (iii) the principal
balance of, and all accrued and unpaid interest on, the Existing Loan (as
defined below) as of the Closing.
2.3 XXXXXXX MONEY DEPOSIT. Concurrently to the delivery of one (1) fully
executed copy of this Agreement with Escrow Holder, Buyer shall deposit with
Escrow Holder the sum of One Hundred Thousand Dollars ($00,000.00) (the "XXXXXXX
MONEY DEPOSIT") in the form of a check or wire transfer. The Xxxxxxx Money
Deposit shall become nonrefundable after the end of the Review Period, unless
this Agreement terminates other than due to a default of Buyer hereunder.
2.4 INVESTMENT OF DEPOSIT. Escrow Holder shall place the Xxxxxxx Money Deposit
in an interest-bearing account with a bank or savings association, the deposits
of which are federally insured, as Buyer may select. All interest on the Xxxxxxx
Money Deposit shall accrue for the benefit of Buyer until the Closing.
Notwithstanding the foregoing, however, in the event of any default by Buyer
hereunder, all interest earned on such account shall accrue to the benefit of
Seller. Seller shall not be responsible for, nor bear the risk of loss of, the
Xxxxxxx Money Deposit, and shall not be responsible for the rate of return
thereon.
2.5 DEPOSIT AS LIQUIDATED DAMAGES. IF THE SALE OF THE PROPERTY AS CONTEMPLATED
HEREUNDER IS NOT CONSUMMATED SOLELY BECAUSE OF A DEFAULT UNDER THIS AGREEMENT ON
THE PART OF BUYER, ESCROW HOLDER SHALL PROMPTLY PAY OVER TO SELLER THE XXXXXXX
MONEY DEPOSIT, IF ANY, THEN BEING HELD BY ESCROW HOLDER, AND SELLER SHALL BE
ENTITLED TO RETAIN THE XXXXXXX MONEY DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY
PLACING THEIR SIGNATURES BELOW, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT
THE XXXXXXX MONEY DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES. THEREFORE, IF, AFTER
SATISFACTION OR WAIVER OF ALL CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS UNDER
THIS AGREEMENT, BUYER BREACHES THIS AGREEMENT AND FAILS TO COMPLETE THE PURCHASE
OF THE PROPERTY AS PROVIDED HEREIN, SELLER SHALL BE ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF THE XXXXXXX MONEY DEPOSIT. ON RECEIPT AND RETENTION BY
SELLER OF THE XXXXXXX MONEY DEPOSIT, THIS AGREEMENT SHALL TERMINATE AND BUYER
SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITY HEREUNDER, OTHER THAN PURSUANT TO
THE INDEMNITY FROM BUYER TO SELLER CONTAINED IN SECTION 4.6 HEREOF. THE PARTIES
FURTHER ACKNOWLEDGE THAT THE XXXXXXX MONEY DEPOSIT HAS BEEN AGREED UPON AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT ON THE PART OF
BUYER.
Dated: Seller:
-------------------
CENTENNIAL PLAZA LIMITED
PARTNERSHIP, an Oklahoma limited
partnership
By: Centennial Plod Incorporated,
an Oklahoma corporation, general
partner
By: XXXX XXXXX XXXXX
----------------
Its: PRESIDENT
Buyer:
THE PRICE REIT, INC.
Dated: By: XXXXXX X. XXXXXXXXXX
------------------- --------------------
Its: PRESIDENT/CEO
ARTICLE III
TITLE TO PROPERTY
3.1 TITLE. At the Closing, Seller shall convey to Buyer marketable and insurable
fee simple title to the Property pursuant to the Deed. In furtherance thereof,
Seller shall cause Lawyer's Title Insurance Corporation (the "TITLE COMPANY") to
issue an ALTA Owner's Policy of Title Insurance (Form B. Rev. l0/84), together
with such endorsements thereto as Buyer may request, provided that the cost of
such endorsements shall be paid for by Buyer (the "TITLE POLICY") in the full
amount of the Purchase Price, insuring fee simple title to the Real Property in
Buyer, subject only to (i) the lien of real property taxes for the then
applicable fiscal year, to the extent not yet due and payable, (ii) the lien of
supplemental taxes imposed by reason of transfer on or after the Closing, (iii)
the lien securing the Existing Loan, and (iv) the Permitted Exceptions.
3.2 OTHER CONVEYANCE DOCUMENTS. At the Closing, Seller shad (i) assign the T
PINS and Rents to Buyer pursuant to the Assignment and Assumption of Leases and
Rents; (ii) transfer title to the Personal Property to Buyer pursuant to the
Xxxx of Sale, and (iii) transfer and assign to Buyer all of Seller's rights in
and to the Intangible Property pursuant to the Assignment and Assumption of
Contracts, Intangible Property, Warranties and Guarantees; such title and rights
to be free of any liens, encumbrances or interests of third parties other than
the Permitted Exceptions.
ARTICLE IV
CONDITIONS TO CLOSING
A. BUYER'S CONDITIONS TO CLOSING.
The complete satisfaction as of the expiration of the Review Period (or such
other date as may be specified herein) with respect to those matters described
in Sections 4.2, 4.3, and 4.5 - 4.7 hereof, and as of the Closing Date with
respect to the balance of the following conditions, is a condition precedent to
Buyer's obligation to purchase the Property:
4.1 NON-FOREIGN STATUS OF SELLER. Seller's execution and delivery to Buyer, on
the Closing Date, of Seller's certificate in the form attached hereto as
SCHEDULE F (the "NON-FOREIGN CERTIFICATE") stating, under penalty of perjury,
that (a) Seller is not a "foreign person" for the purposes of Section 1445 of
the Internal Revenue Code of 1986, as amended (the "CODE"), and that withholding
of tax will not be required thereunder, and (b) withholding is not required
under the provisions of any state laws in connection with the contemplated
transfer of the Property by Seller to Buyer.
4.2 REVIEW AND APPROVAL OF TITLE AND SURVEY. There shall be no exceptions to
title to the Property other than the Permitted Exceptions. In connection with
Buyer's review of title and related matters, Seller shall as soon as
practicable, but in n event later than fifteen (15) days after the date of this
Agreement, cause Escrow Holder to deliver to Buyer the following:
(a) a current extended coverage commitment (ALTA Form 1970, as amended 10/84)
for title insurance for the Property issued by the Title Company (the "TITLE
REPORT"), accompanied by legible record copies of all of the documents referred
to in the Title Report;
(b) copies of all existing or proposed easements, covenants, restrictions,
agreements or other documents which affect the ownership of or title to the
Property and which are not disclosed by the Title Report for the Property, if
any; and
(c) a current ALTA survey of the Property, certified to Buyer (the "SURVEY").
4.3 REVIEW AND APPROVAL OF OTHER MATTERS. In connection with Buyer's review of
other matters, Seller shall deliver to Buyer, within fifteen (15) days after the
date of this Agreement, true, complete and correct copies of the following
items, to the extent in Seller's or Seller's manager's possession:
(a) Copies of all soils and hazardous materials reports, termite reports,
engineering studies, topographical maps, appraisals and other reports, studies,
maps and analyses with respect to the Property;
(b) Copies of subdivision maps and condominium plans;
(c) Copies of all permits and licenses relating to the Property;
(d) Copies of all documents and certificates from appropriate governmental
authorities relating to the zoning, building and platting status of the
Property;
(e) A description of existing and proposed local improvements affecting the
Property, including assessment levels;
(f)Copies of all service contracts relating to the Property;
(g) Copies of the real property and personal property tax bills for the Property
for the previous three (3) years;
(h) Copies of all tenant leases and proposed tenant leases on the Property;
(i) Copies of all plans and construction drawings for all buildings to be
constructed on the Property;
(k) A copy of all loan documents entered into by Seller in connection with the
first mortgage encumbering the Property (the "EXISTING LOAN"); and
(l) Copies of all insurance policies maintained by Seller with respect to the
Property within the last three (3) years.
Buyer agrees to maintain in confidence all items delivered to it pursuant to
this Section 4.3 until Closing (subject to any disclosure obligations Buyer may
have under applicable law).
4.4 FIRST MORTGAGE LOAN DOCUMENTS. (i) Buyer shall have reviewed and approved
the loan documents with respect to the Existing Loan, (ii) Buyer shall have
agreed to the terms of assumption required by the holder of the Existing Loan,
(iii) the holder of the Existing Loan shall have agreed in writing (in form and
substance reasonably acceptable to Buyer) to Buyer's assumption of all
obligations under the loan documents with respect to the Existing Loan arising
on or after the Closing; and (iv) the holder of the Existing Loan shall have
confirmed in writing the principal balance thereof, which shall not exceed
$12,425,000.00, and shall have confirmed (in form and substance reasonably
acceptable to Buyer) that as of closing there is no default under the Existing
Loan or event, condition, circumstance or omission that with the giving of
notice or the passage of time would become such a default. Buyer shall have
fourteen (14) days after the receipt of all of the foregoing to object thereto,
and if Buyer fails to notify Seller of any objection thereto on or prior to the
end of such fourteen (14) day period, Buyer shall be deemed to have approved the
loan documents with respect to the Existing Loan, and the terms and conditions
of Buyer's assumption of the Existing Loan. In the event that Buyer objects to
any of the foregoing within such fourteen (14) day period, then this Agreement,
and all right and obligations of Buyer and Seller hereunder, shall terminate,
except as set forth in Sections 4.6, 5.2(b) and 10.5 hereof, and within five (5)
days after Buyer has provided notice to Escrow Holder of such termination,
Escrow Holder shall deliver to Buyer the Xxxxxxx Money Deposit, together with
interest thereon.
4.5 SERVICE AND OTHER CONTRACTS. Buyer's review and approval, in its sole and
absolute discretion, of all utility contracts, water and sewer service
contracts, service contracts, warranties, permits, soils reports, and other
contracts or documents of any nature relating to the Property or any portion
thereof (the "CONTRACTS"; those Contracts which Buyer approves in writing prior
to the end of the Review Period (and prior to the Closing Date in the case of
contracts not entered into or delivered to the Buyer until after the expiration
of the Review Period) shall be referred to as the "APPROVED CONTRACTS");provided
that Buyer's only remedy if it disapproves any Contract(s) shall be to compel
the Seller to terminate such disapproved Contract(s) on or prior to the Closing,
which Seller hereby agrees to do at its sole cost and expense if so requested by
Buyer.
4.6 PHYSICAL CHARACTERISTICS OF THE PROPERTY. Buyer's review and approval, in
its sole and absolute discretion, of (a) an environmental assessment (which
shall, without limiting the scope of the report, contain an assessment of
asbestos and radon affecting the Property) by an environmental consultant of
Buyer's choice and at Buyer's cost (the "PHASE I REPORT"), and (b) the results
of Buyer's physical inspection and testing of the Property, or any portion
thereof (which testing shall be conducted at Buyer's expense, and may include,
but shall not be limited to, testing for the presence of asbestos, PCBs, as
defined below, and other Hazardous Materials, as defined below, including
without limitation the performance of core sampling, drilling and other
intrusive testing), of the structural, mechanical, electrical and other physical
or environmental characteristics of the Property, including any tenant
improvements or other construction installed or to be installed as of the
Closing Date. Seller shall allow Buyer reasonable access to the Property to
perform any physical inspection thereof which Buyer reasonably deems
appropriate; provided that: (i) Buyer shall provide Seller with reasonable
advance notice prior to any such physical inspection, and provided further that
Seller shall have the right to accompany (or have an agent of Seller accompany)
Buyer during such physical inspection; and (ii) Buyer shall not unreasonably
disturb any tenant of the Property during any such physical inspection.
Buyer agrees to indemnify, defend and hold Seller harmless from any and all
loss, liability, damage, claims, costs or expenses, including attorney's fees,
if any, arising or resulting from: (x) any physical damage to the Property
caused by Buyer or its agents during any physical inspection and (y) any claim
made against Seller by any tenant or any third party alleging any physical
injury caused by Buyer or its agents or alleging breach of a lease caused by
Buyer or its agent during such inspection. Notwithstanding the foregoing, in no
event shall Buyer indemnify Seller for any loss, liability, damage, claims,
costs or expenses arising or resulting from the gross negligence or willful
misconduct of Seller or its agents. The provisions of this indemnity shall
survive the closing or termination of this Agreement.
4.7 GOVERNMENTAL PERMITS, APPROVALS AND REGULATIONS. Buyer shall have confirmed
that all governmental permits and approvals with respect to the Property
relating to the construction, operation, use or occupancy of the Property or any
portion thereof, are in full force and effect.
4.8 REPRESENTATIONS AND WARRANTIES. All of Seller's representations and
warranties contained herein or made in writing by Seller shall have been true
and correct when made and shall be true and correct as of the Closing Date, as
though made at, and as of, the Closing Date, and Seller shall have executed and
delivered all documents and complied with all of Seller's covenants and
agreements contained in or made pursuant to this Agreement.
4.9 IMPAIRMENT OF PROPERTY. No material adverse change shall have occurred in
the condition or ownership of the Property or any part thereof from and after
the conclusion of the Review Period. As of the Closing no part of the Property,
or any interest of Seller therein, shall be encumbered by any lien, pledge,
security interest, financing or due and unpaid charge, tax or other imposition
(other than Permitted Exceptions and items which will be removed on or prior to
the Closing Date), or damaged and not repaired to Buyer's satisfaction or taken
in condemnation or other like proceeding and no such proceeding shall be pending
or threatened, except as otherwise provided in Section 8.2 hereof. There shall
have occurred no material adverse change in the financial condition of any
tenant under any of the Leases demising 6,000 square feet or more of the
Improvements (each, a "MAJOR LEASE"), and there shall be no default, or event
that with the giving of notice or the passage of time or both would constitute a
default, under any Major Lease.
4.10 APPROVAL OF BUYER'S BOARD OF DIRECTORS. This Agreement and the transactions
contemplated hereby shall have been approved by Buyer's board of directors (the
"BUYER APPROVAL") within forty-five (45) days after the date of this Agreement.
4.11 OBJECTIONS TO TITLE OR SURVEY. Buyer shall have until twenty (20) business
days from the later to occur of (i) delivery of the Title Report and (ii)
delivery of the Survey, to notify Escrow Holder and Seller in writing of Buyer's
disapproval of the condition of title. Buyer shall give Seller and Escrow Holder
written notice outlining in detail any title items objected to and specifying
Buyer's desired cure. Seller shall have ten (10) business days after receipt of
Buyer's notice to advise Buyer and Escrow Holder, in writing, as to whether
Seller shall cure said objections prior to the Closing (and should Seller fail
to advise Buyer of Seller's objection within such 10-day period, Seller shall be
deemed to have elected to refuse to cure said objections). In the event Seller
elects not to cure such objections, or elects to cure such objections and fails
or refuses to cure said objections, Buyer shall have the option, which must be
exercised within 10 business days of Buyer's receipt of Seller's response or
deemed response, or Closing (whichever is earlier), (a) to waive Buyer's
objections and purchase the Property as otherwise contemplated in this
Agreement, notwithstanding such objections, in which event the subject maker of
such waived objections shall be included within Permitted Exceptions, and Seller
shall convey the Property to Buyer, subject to the Permitted Exceptions, or (b)
to terminate this Agreement by written notice to Seller and Escrow Holder,
whereupon any and all right and obligations of Buyer and Seller hereunder shall
terminate, except as set forth in Sections 4.6, 5.2(b) and 10.5 hereof, and
within five (5) days after Buyer has provided notice to Escrow Holder, Escrow
Holder shall deliver to Buyer the Xxxxxxx Money Deposit, together with interest
thereon. All exceptions to title to, and/or encumbrances against, the Property
shown on the Title Report or Survey but not objected to by Buyer, and those
items referred to in items (i), (ii) and (iii) of the second sentence of Section
3.1 hereof, shall be deemed "PERMITTED EXCEPTIONS"; provided, however, that
Seller covenants to remove all monetary encumbrances (other than those with
respect to the liens referred to in items (i), (ii) and (iii) of the second
sentence of Section 3.1 hereof) affecting the Property or any portion thereof
prior to Closing, and Seller further agrees that no monetary encumbrances other
than the liens referred to in items (i), (ii) and (iii) of the second sentence
of Section 3.1 hereof shall be Permitted Exceptions.
4.12 OBJECTIONS TO PROPERTY OR OTHER MATTERS. To the extent there is a change in
any of the matters described in this Article IV.A, or any such matters first
become available or are supplemented after the date hereof, Seller shall
immediately inform Buyer of such change in circumstances and deliver any such
new or supplemental information to Buyer. Buyer shall have until forty-five (45)
days after the date of this Agreement (the "REVIEW PERIOD"), to notify Seller of
any objections Buyer has to the physical or financial state of the Property, to
the Phase I environmental report, to any contracts or leases relating to the
Property, to any item delivered (or not delivered) by Seller to Buyer, or to any
other matter covered by this Article IV.A other than Title or Survey; provided
that Buyer shall have until the Closing Date to approve the items specified in
Sections 4.1, 4.9 and 4.13 hereof. If Buyer shall object as provided herein (and
if Buyer does not give notice to Seller of its objections prior to the end of
the Review Period, Buyer shall be conclusively deemed to have objected), then
this Agreement shall terminate and any and all right and obligations of Buyer
and Seller hereunder shall terminate, except as set forth in Sections 4.6,
5.2(b) and 10.5 hereof, and within five (5) days after Buyer provides notice of
such termination to Escrow Holder, Escrow Holder shall pay to Buyer the Xxxxxxx
Money Deposit, together with interest thereon.
4.13 TENANT MATTERS. Buyer shall have received and approved written estoppel
statements, in substantially the form as that attached hereto as Schedule I,
from each of the tenants under the Major Leases, each "national credit" tenant
(as identified as such on the Rent Roll), and tenants holding leases upon not
less than eighty-five percent (85%) of the remaining gross leasable area in the
Property. Each such estoppel statement shall be in form and substance acceptable
to Buyer. Buyer shall have 5 business days after the date of Buyer's receipt of
the last such tenant estoppel to notify Seller of any objection Buyer may have
regarding such estoppels, and in the event Buyer fails to so notify Seller,
Buyer shall be deemed to have disapproved the satisfaction of the condition set
forth in this Section 4. 13.
4.14 DELIVERY OF DOCUMENTS. The due and timely delivery by Seller of executed
documents required by this Agreement, including without limitation all of the
documents and items specified in Section 5.3 below.
4.15. DISCOVERY ZONE LEASE. Buyer shall have been provided evidence reasonably
acceptable to Buyer that the lease to the Discovery Zone has been rejected by
the Discovery Zone, and that such rejection is final and that the Discovery Zone
has no further right of occupancy with respect to the Property.
The foregoing conditions contained in this Article IV.A (except to the extent
otherwise provided in Article IV.B hereof) are intended solely for the benefit
of, and may be waived by, Buyer.
B. SELLER'S CONDITIONS TO CLOSING.
The following conditions are conditions precedent to Seller's obligation to sell
the Property:
4.16 DELIVERY OF DOCUMENTS AND PURCHASE PRICE. Buyer's due and timely execution
and delivery of all documents and items to be executed and delivered by Buyer
(including without limitation the Purchase Price) pursuant to this Agreement,
including without limitation all of the documents and items specified in Section
5.4 below.
4.17. ASSUMPTION OF EXISTING LOAN. Buyer shall have executed and delivered to
Escrow Holder all documents required for Buyer to assume all of Seller's
obligations under the Existing Loan arising from and after the Closing Date.
The foregoing conditions contained in this Article IV.B are intended solely for
the benefit of Seller (except to the extent otherwise provided in Article IV.A
hereof).
ARTICLE V
CLOSING, RECORDING AND TERMINATION
5.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS. Promptly after execution
of this Agreement, the parties hereto shall deliver one (1) fully executed copy
of this Agreement to the Escrow Holder and this instrument shall serve as the
escrow instructions to the Escrow Holder for consummation of the purchase and
sale contemplated hereby. Seller and Buyer agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable the Escrow
Holder to comply with the terms of this Agreement; provided, however, that in
the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of this Agreement shall control.
5.2 CLOSING. (a) The CLOSING DATE shall occur no later than that date which is
seventy-five (75) days after the date of this Agreement, or such other date as
Buyer and Seller may mutually agree in writing. Except as otherwise expressly
provided herein, such date may not be extended without the written approval of
both Seller and Buyer. The Closing and the Closing Date shall not have occurred
until the Purchase Price shall have been paid by Buyer to Escrow Holder as
provided herein. The "CLOSING" shall be deemed to have occurred on the date that
all of the events specified in Section 5.8 of this Agreement shall have
occurred. The "Closing Date" shall be the date on which the Closing occurs.
(b) In the event the Closing does not occur on or before that date which is
seventy-five (75) days after the date of this Agreement, the Escrow Holder
shall, unless it is notified by Buyer to the contrary within five (5) days after
such date, return to the depositor thereof all items which may have been
deposited with Escrow Holder hereunder. Any such return shall not, however,
relieve either party hereto of any liability it may have for its wrongful
failure to close. Buyer shall, within seven (7) days after the termination of
this Agreement in accordance with the terms hereof, return to Seller all
documents and materials delivered to Buyer hereunder by or on behalf of Seller.
5.3 DELIVERY BY SELLER. At the Closing, Seller shall deposit with the Escrow
Holder, for the benefit of Buyer, or deliver directly to Buyer the following:
(a) The Deed and the Assignment and Assumption of Leases and Rents, each duly
executed and acknowledged by Seller, in recordable form, and ready for
recordation in the official records of the jurisdiction in which the Land is
located (the "OFFICIAL RECORD");
(b) An assumption of the Existing Loan, in form and substance acceptable to
Buyer, duly executed and acknowledged by the holder of the Existing Loan, in
recordable form, and ready for recordation in the Official Records;
(c) The Xxxx of Sale duly executed by Seller;
(d) A certificate from the office of the county clerk of Oklahoma County, dated
within thirty (30) days of the Closing Date, listing, as of the date of such
certificate, all filings against Seller in said offices under the Commercial
Code of Oklahoma which would be a lien on any of the Personal Property (other
than such filings, if any, (i) as are being released at the time of the Closing
or (ii) which have been approved in writing by Buyer) or (iii) which evidence
liens securing the Existing Loan), together with fully executed termination
statements with respect to such filings;
(e) originals or copies of any warranties and guaranties received by Seller and
to be assigned to Buyer, from any contractors, subcontractors, suppliers or
materialmen in connection with any construction, repairs or alterations of the
Improvements or any tenant improvements;
(f) The Assignment and Assumption of Contracts, Intangible Property, Warranties
and Guarantees, duly executed by Seller and acknowledged, assigning all of
Seller's interest in the Intangible Property (except that the only Contracts
that shall be assigned are the Approved Contracts);
(g) Originals or copies of all certificates of occupancy, licenses and permits
for the Improvements;
(h) All existing as-built plans and specifications for the Improvements in the
possession of Seller or its manager;
(i) A closing statement prepared by Escrow Holder in form and content consistent
with this Agreement and otherwise reasonably satisfactory to Buyer and Seller;
(j) The Non-Foreign Certificate, duly executed by Seller;
(k) A certificate duly executed by Seller and dated as of the Closing Date
confirming the truth, accuracy and completeness of each of the Seller's
representations and warranties set forth in Article VI below and noting with
specificity any changes or exceptions thereto based upon events or circumstances
intervening after the execution hereof (the "UPDATE CERTIFICATE");
(l) Seller's closing certificate, certifying as to the satisfaction of all of
the conditions precedent to Seller's obligations hereunder (except delivery of
the Purchase Price), addressed to Buyer; and
(m) Complete originals of the Leases with respect to the Property and copies of
all records, books of account, ledgers, statements and other business records
relating to the ownership and operation of the Property and/or the
administration of the Leases, in whatever mode maintained, including information
contained on computer disks.
Buyer may waive compliance on Seller's part under any of the foregoing items by
an instrument in writing.
5.4 DELIVERY BY BUYER. Buyer shall execute and deliver to Escrow Holder, for the
benefit of Seller, or directly to Seller the following:
(a) Buyer's closing certificate, certifying as to the satisfaction of all of the
conditions precedent to Buyer's obligations hereunder, addressed to Seller.
(b) Buyer's executed counterpart of the Assignment and Assumption of Leases and
Rents, and Assignment and Assumption of Contracts, Intangible Property,
Warranties and Guarantees.
(c) Buyer's executed counterpart of an assumption of the Existing Loan,
acknowledged by Buyer in recordable form, and ready for recordation in the
Official Records;
After Buyer's or Escrow Holder's receipt of all of the items specified in
Section 5.3 hereof, after the complete satisfaction of all of the conditions
precedent to Buyer's obligations hereunder, and after the expiration of the
Review Period, Buyer shall deliver the Purchase Price to Escrow Holder as
provided in Section 2.2 above.
5.5 OTHER INSTRUMENTS. Seller and Buyer shall each deposit such other
instruments as are reasonably required by Escrow Holder or otherwise required to
close the escrow and consummate the purchase of the Property in accordance with
the terms hereof.
5.6 PRORATIONS. At Closing, the parties shall prorate (with Buyer being deemed
to be the owner of the Property for the date of the Closing) as of the date on
which the Closing occurs, on the basis of a thirty (30) month, the following
with respect to the Property:
(a) RENTS. All rents and other receipts payable for the month in which the
Closing occurs shall be prorated as of the Closing. If any tenant under a Lease
is delinquent in such month, Seller shall pay to Buyer the pro-rated amount of
the scheduled monthly rent under such Lease. Buyer shall use reasonable efforts
after the Closing to collect delinquent rents for the period up to the Closing;
provided, however, that all collections shall be applied first to periods
commencing after the Closing, and then to periods prior to the Closing.
Percentage Rents (if any) shall be prorated by Buyer when received by Buyer,
based on twelve thirty (30) day months.
(b) COMMON AREA MAINTENANCE CHARGES. All reimbursable expenses shall be
reconciled at Closing, such that if Seller has collected sums in excess of its
reimbursable expenses under the Leases, Seller shall pay such excess to Buyer.
In the event that such reconciliation shows that Seller has collected less than
its incurred reimbursable expenses under the Leases, Buyer shad remit the excess
to Seller not later than the expiration of three months after the conclusion of
the twelve-month period then in progress with respect to the budgeting of such
expenses under the Leases.
(c) TAXES. Unless such items are subject to proration under subparagraph (b)
above, real estate taxes, recurring assessments, and personal property taxes, if
any, on all or any portion of the Property, based on the regular and
supplemental tax bills for the calendar year in which the Closing occurs (or, if
such tax bid has not been issued as of the date of Closing the regular and
supplemental tax bin for the calendar year preceding that in which the Closing
occurs, with such increase thereto as Buyer reasonably estimates will occur)
shall be prorated as of the Closing. If any supplemental real estate taxes are
levied for any period preceding the Closing, the parties will, immediately after
the Closing or the issuance of the supplemental real estate tax xxxx (whichever
last occurs), prorate between themselves, in cash, without interest and to the
date of the Closing Date, the supplemental real estate taxes shown by such xxxx.
(d) UTILITIES. Unless such items are subject to proration under subparagraph (b)
above, all utilities, including gas, water, sewer, electricity, telephone and
other utilities supplied to the Property shad be read as of the Closing Date.
Seller shall pay, prior to the Closing Date, all such amounts for which a xxxx
has been received or for which payment is otherwise due prior to the Closing
Date, and Buyer shall be credited, and Seller shall be debited, with an amount
equal to all utility charges for the period from the date such bills were issued
or such payments were due until the Closing Date.
(e) SERVICE CONTRACTS. Amounts payable under Approved Contracts shall be
prorated on an accrual basis. Seller shad pay, prior to the Closing Date, all
such amounts for which a xxxx has been received or for which payment is
otherwise due prior to the Closing Date, and Buyer shall be credited, and Seller
shall be debited, with an amount equal to all amounts accrued under the Approved
Contracts from the date such bills were issued or such payments were due until
the Closing Date. Seder shall deliver to Escrow, for the benefit of Buyer,
evidence of the cancellation or termination of ad Contracts other than Approved
Contracts, and Seller shall be responsible for an such cancellation costs.
(f) IMPROVEMENT LIEN ASSESSMENTS. All improvement lien assessments shad be paid
in fun by Seller at Closing.
(g) OTHER ITEMS. All other proratable items, including without limitation
licenses and permits being assumed by Buyer (if any; provided that in no event
shall Buyer assume any indemnification obligations of Seller) and other income
from, and expenses associated with, the Property shall be prorated between Buyer
and Seller as of the Closing.
Buyer and Seller's obligation to prorate shall survive the Closing for a period
of one (1) year (unless within such time Buyer or Seller makes a claim against
the other party to this Agreement with respect to such obligation to prorate, in
which case such obligation shall survive without limitation), and Buyer and
Seller shall use good faith efforts to conclude prorations with respect to
percentage Rent and common area maintenance charges as soon as practicable after
the determination of the amounts thereof. Nothing in the Assignment and
Assumption of Leases and Rents shall be construed to amend, modify or diminish
in any way the provisions of this Section 5.6.
5.7 COSTS AND EXPENSES. Seller and Buyer shall each bear and pay one half (1/2)
of the premium for the Title Policy (exclusive of endorsements thereto). Seller
shall pay any and all assumption, documentation and legal fees with respect to
the Existing Loan (other than the portion of the assumption fee to be borne by
Buyer pursuant hereto), all legal fees and costs incurred by Seller, the cost of
any recordation fees and documentary or other transfer taxes applicable with
respect to the sale of the Real Property, all sales tax, if any, applicable with
respect to the sale of the Personal Property and/or the Intangible Property,
one-half of the Escrow Holder's fees and charges, and other fees and charges
which are typically borne by sellers in Oklahoma City, Oklahoma. Buyer shall pay
for its out-of-pocket expenses, the cost of the Survey, $40,000 of the
assumption fee with respect to the Existing Loan (or such lesser amount as the
holder of the Existing Loan may require in assumption fees), all due diligence,
all legal fees and costs incurred by Buyer in connection herewith, one-half of
the Escrow Holder's fees and charges, and other fees and charges which are
typically borne by buyers in Oklahoma City, Oklahoma.
5.8 CLOSING AND RECORDATION. Provided that Escrow Holder has received all of the
items required to be delivered pursuant to this Article V (or a waiver from the
party for whose benefit such item is being delivered) and that it has not
received prior written notice from Buyer that Buyer has elected to terminate its
rights and obligations hereunder pursuant to Article IV, Article VIII and/or
Section 5.9, and provided that Buyer has either received the Title Policy or the
irrevocable commitment of Title Company to provide it with the Title Policy
immediately after recordation of the Deed, Escrow Holder is authorized and
instructed (a) with respect to the Property, to cause the Title Company to
record the documents delivered to the Escrow Holder in accordance with recording
instructions set forth in a letter to be delivered to Escrow Holder and Title
Company by Buyer (or if no such letter is received prior to the Closing, in
accordance with customary practice), (b) to deliver those other documents and
instruments delivered into Escrow to the party for whose benefit such documents
or instruments were made and (c) to deliver the Purchase Price, as adjusted
pursuant to Section 5.6 hereof, upon receiving confirmation of recording of the
Deed.
5.9 TERMINATION OF AGREEMENT.
(a) FAILURE OF BUYER'S CONDITIONS. If any one or more of the conditions to
Buyer's obligations, as set forth in Article IV.A, Section 5.3 or elsewhere in
this Agreement, is not either fully performed, satisfied or waived in writing
(or deemed waived as provided herein) on or before the Closing Date or such
earlier date as provided elsewhere herein, then Buyer may elect, by written
notice as provided in Section 10.10 hereof, to terminate this Agreement, in
which case neither party shall have any further obligation to the other (except
as set forth in Sections 4.6, 5.2(b) and 10.5 hereof). Nothing in this paragraph
shall be construed to limit any of Buyer's rights or remedies at law or equity
in the event of a default by Seller.
(b) FAILURE OF SELLER'S CONDITIONS. If any one or more of the conditions to
Seller's obligations, as set forth in Article IV.B, Section 5.4 or elsewhere in
this Agreement, is not either fully performed, satisfied or waived in writing
(or deemed waived as provided herein) on or before the Closing Date or such
earlier date as provided elsewhere herein, then Seller may elect, by written
notice as provided in Section 10.10 hereof, to terminate this Agreement and
neither party shall have any further obligation to the other (except as set
forth in Sections 4.6, 5.2(b) and 10.5 hereof).
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
As an inducement to Buyer to enter into this Agreement and the consummation of
the transaction contemplated hereby, Seller hereby represents and warrants to
and agrees with Buyer both as of the date hereof and again as of the Closing
Date, and as of all dates and times in between (except as specifically provided
to the contrary herein), as set forth below. As used herein and elsewhere in
this Agreement, the term "SELLER'S ACTUAL KNOWLEDGE" shall mean the actual
knowledge of each of Messrs. Xxxxx Xxxxxxxxxx and Xxxx Xxxxx Xxxxx, without any
duty of investigation of any kind. Seller represents and warrants that the
foregoing persons are the persons employed by Seller or its manager with
day-to-day managerial or supervisorial authority over the Property.
6.1 AUTHORITY. Seller is duly organized and validly existing under the laws of
the jurisdiction of its organization, is duly qualified to conduct business and
own real property in the State of Oklahoma, and has all requisite power to own
all of its properties and assets and to carry on its business as presently
conducted. The execution, delivery and performance of this Agreement and all
other agreements contemplated hereby has been duly and validly authorized by all
necessary action of Seller and the Agreement and all other agreements
contemplated thereby are and will be valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting generally the enforcement of
creditors' rights and general principles of equity.
6.2 TITLE. Seller holds fee simple title to the Property, and to Seller's actual
knowledge, such fee simple title is free and clear of all liens, encumbrances,
security interests, charges, adverse claims and other exceptions to title,
except for the Leases, Contracts, matters of record, matters disclosed by the
Survey and the Permitted Exceptions. Nothing in the Deed shall be construed to
amend, modify or diminish the effectiveness or survival of the foregoing
representation.
6.3 THE LEASES. A list of the current Leases is set forth in the rent roll
attached hereto as Schedule G (the "RENT ROLL"). The economic information
contained in the Rent Roll is accurate and consistent with Seller's records (as
they relate to the Property), which records have been maintained by Seller in
accordance with good property management standards. The noneconomic information
contained in the Rent Roll is accurate and consistent in all material respects
with Seller's records (as they relate to the Property), which records have been
maintained by Seller in accordance with good property management standards.
Except for the Leases set forth in the Rent Roll, there are no other leases,
licenses or other agreements affecting the occupancy of the Property. With
respect to each Lease: (i) the Lease is in full force and effect, and
constitutes the valid and binding legal obligation of Seller and the respective
tenant, enforceable against each of them in accordance with its terms; (ii)
there are no understandings, oral or written, between the parties to the Lease
which in any manner vary the obligations or rights of either party; (iii) except
as indicated on the Rent Roll, there is no default by Seller under the Lease and
to Seller's knowledge, by the tenant under the Lease; and (iv) no rent or
additional rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
6.4 NO LITIGATION OR ADVERSE EVENTS. Seller has received no written notice of,
and to Seller's actual knowledge, there are no, pending or threatened
investigations, actions, suits, proceedings or claims against or affecting
Seller or the Property, at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, agency, or
instrumentality, domestic or foreign.
6.5 COMPLIANCE WITH LAWS. To the best of Seller's knowledge, Seller is in
compliance in all material respects with all applicable laws, ordinances, rules
and regulations (including without limitation those relating to zoning and the
Americans With Disabilities Act) applicable to the ownership or operation of the
Property. Seller has not received from any insurance company or Board of Fire
Underwriters any notice, which remains uncured, of any defect or inadequacy in
connection with the Property or its operation.
6.6 NO DEFAULTS IN OTHER AGREEMENTS. To Seller's actual knowledge, neither
Seller nor any other park is in material default under any Contract affecting
the Property, and no event exists which, with the passage of time or the giving
of notice or both, will become a material default thereunder on the part of the
Seller or any other party thereto. To Seller's knowledge, Seller is in
compliance in all material respects with the terms and provisions of the
covenants, conditions, restrictions, rights-of-way or easements affecting the
Property.
6.7 EMINENT DOMAIN. To Seller's actual knowledge, there is no existing or
proposed or threatened eminent domain or similar proceeding, or private purchase
in lieu of such a proceeding which would affect the Property in any material
way.
6.8 LICENSES, PERMITS, CO'S, ZONING, ETC. To Seller's actual knowledge, all
permits, certificates of occupancy, business licenses and all other notices,
licenses, permits, certificates and authority required as of the date hereof and
as of the Closing Date in connection with the use or occupancy of the Property
have been obtained and are in full force and effect and in good standing.
6.9 TAXES AND ASSESSMENTS. All real property taxes, and all Seller's personal
property taxes, relating to the Property, excepting those for the current tax
year which are not yet overdue (i.e., which are still payable without interest
or penalty), have been paid in full. To Seller's actual knowledge, there is no
(i) proposed increase in the assessed valuation of the Property, or (ii)
existing or proposed assessment that has or may become a lien on the Property.
6.10 ENVIRONMENT. (i) Seller has not engaged in any operations or activities
upon, or any use or occupancy of the Property, or any portion thereof, for the
purpose of or in any way involving the handling, manufacture, treatment,
storage, use, generation. release discharge, refining, dumping or disposal of
any Hazardous Materials (whether legal or illegal, accidental or intentional)
on, under, in or about the Property, or transported any Hazardous Materials to,
from or across the Property, except in all cases in material compliance with
Environmental Requirements and only in the course of legitimate business
operations at the Property (which shall not include any business primarily or
substantially devoted to the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal of Hazardous
Materials); (ii) to Seller's actual knowledge, no tenant, occupant or user of
the Property, nor any other person, has engaged in or permitted any operations
or activities upon, or any use or occupancy of the Property, or any portion
thereof, for the purpose of or in any material way involving the handling,
manufacture, treatment, storage, use, generation, release, discharge, refining,
dumping or disposal of any Hazardous Materials (whether legal or illegal,
accidental or intentional) on, under, in or about the Property, or transported
any Hazardous Materials to, from or across the Property, except in all cases in
material compliance with Environmental Requirements and only in the course of
legitimate business operations at the Property (which shall not include any
business primarily or substantially devoted to the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal of Hazardous Materials); (iii) to Seller's actual knowledge, no
Hazardous Materials are presently constructed, deposited, stored, or otherwise
located on, under, in or about the Property except in all cases in material
compliance with Environmental Requirements and only in the course of legitimate
business operations at the Property (which shall not include any business
primarily or substantially devoted to the handling, manufacture, treatment,
storage, use, generation, release, discharge, refining, dumping or disposal of
Hazardous Materials); (iv) to Seller's actual knowledge, no Hazardous Materials
have migrated from the Property upon or beneath other properties; and (v) to
Seller's actual knowledge, no Hazardous Materials have migrated or threaten to
migrate from other properties upon, about or beneath the Property.
As used herein:
"ENVIRONMENTAL REQUIREMENTS" shall mean all applicable present statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans authorizations, concessions, franchises and similar items, of all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (i) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the air, surface water, ground water or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature; and (ii) all requirements pertaining to the protection of the
health and safety of employees or the public.
"HAZARDOUS MATERIALS" shall mean (i) any flammable, explosive or radioactive
materials, hazardous wastes, toxic substances or related materials including,
without limitation, substances defined as "hazardous substances," "hazardous
materials," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C., Section 2601
et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq.; and in the regulations adopted and publications promulgated
pursuant to said laws; (ii) those substances listed in the United States
Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or
by the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 C.F.R. Part 302 and amendments thereto); (iii) those substances
defined as "hazardous wastes," "hazardous substances" or "toxic substances" in
any similar federal, state or local laws or in the regulations adopted and
publications promulgated pursuant to any of the foregoing laws or which
otherwise are regulated by any governmental authority, agency, department,
commission, board or instrumentality of the United States of America, the State
of California or any political subdivision thereof, (iv) any pollutant or
contaminant or hazardous, dangerous or toxic chemicals, materials, or substances
within the meaning of any other applicable federal state, or local law,
regulation, ordinance, or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended; (v) petroleum or any by-products thereof, (vi) any radioactive
material, including any source, special nuclear or by-product material as
defined at 42 U.S.C. Sections 2011 et seq., as amended, and in the regulations
adopted and publications promulgated pursuant to said law; (vii) asbestos in any
form or condition; and (viii) polychlorinated biphenyls.
6.11 PHYSICAL CONDITION. Except as disclosed in writing by Seller to Buyer on or
prior to the date hereof, to Seller's actual knowledge: (i) there are no
material structural defects in the Improvements located on or at the Property;
(ii) the Improvements and Personal Property (including without limitation
plumbing equipment, HVAC, electric wiring and fixtures, gas distribution system,
water and sewage systems, security systems and swimming pool and spa systems)
are in good working order and condition, except for defects or required repairs
that are not material.
6.12 EMPLOYEES. Seller has no employees.
6.13 MECHANIC'S LIENS. All bills and claims for labor performed and materials
furnished to or for the benefit of the Property currently due and contracted for
by Seller or its manager have been paid in full, and there are no mechanic's or
materialmen's liens (whether or not perfected) on or affecting the Property as a
result of labor performed or materials furnished and contracted for by the
Partnership or its manager.
6.14 OPERATING STATEMENTS. To Seller's actual knowledge, the financial
statements delivered by Seller to Buyer fairly present the profit or loss from
the management and operation of the Property for the periods covered thereby
and, in all material respects, accurately reflect all rents and other gross
receipts, and all amounts paid by Seller for electricity, water, sewer, other
utility services, insurance, fuel, maintenance and repairs (whether capitalized
or expensed), real estate taxes, payroll and payroll taxes and all other
operating and other expenses associated with the Property.
6.15 DISCLOSURE. Except as disclosed on Schedule H attached hereto, no
representation or warranty of Seller in this Agreement, or any information,
statement or certificate furnished or to be furnished by Seller or at Seller's
direction pursuant to this Agreement or in connection with the transactions
contemplated hereby, contains or shall contain any materially untrue statement
of a material fact or omits or shall omit to state a material fact necessary to
make the statements contained therein not misleading. To Seller's knowledge,
there is no material misstatement or omission in the copies of contracts
agreements and other documents delivered by Seller in connection with the
transactions contemplated hereby
6.16 NO LEASES OF PROPERTY OR ASSETS. No material portion of the Personal
Property or fixtures with respect to the Property (other than fixtures owned or
installed by tenants) is leased by the Seller as lessee.
The representations and warranties set forth in this Article VI shall survive
the execution and delivery of this Agreement, the delivery of the Deed and
transfer of title to the Property, until the date that is six months after the
Closing Date; provided however, that in the event Buyer makes a written claim
against Seller with respect to any representation or warranty prior to the date
which is six months after the Closing Date, than such representation or warranty
shall survive without limitation as to such written claim.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
7.1 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to Seller as follows: Buyer is a corporation duly organized under the
laws of the State of Maryland; subject to receipt of the Buyer Approval, this
Agreement and all documents executed by Buyer which are to be delivered to
Seller at the Closing are and as of the Closing Date will be duly authorized,
executed and delivered by Buyer, and are and as of the Closing Date will be
legal, valid and binding obligations of Buyer, and do not and as of the Closing
Date will not violate any provisions of any agreement or judicial order to which
Buyer is a party or to which it is subject.
ARTICLE VIII
POSSESSION, DESTRUCTION AND CONDEMNATION
8.1 POSSESSION. Possession of the Property shall be delivered to Buyer on the
Closing Date, subject to the Leases described on the Rent Roll or otherwise
approved by Seller. Without limiting any other provisions of this Agreement,
Seller shall afford authorized representatives of Buyer reasonable access to the
Property for the purposes of determining Seller's compliance herewith (provided
that Seller or Seller's agent shall be allowed to accompany Buyer in any visit
to the Property Buyer may make for the purposes of determining such compliance);
however, in no event shall such right give rise to any obligation of Buyer to
determine compliance or noncompliance.
8.2 LOSS, DESTRUCTION AND CONDEMNATION.
(a) DEFINITION OF MATERIAL DAMAGE. For the purposes of this Section 8.2, damage
to the Property is material if (i) the actual cost of repairing or replacing the
damaged portions of the Improvements on the Property exceeds $250,000.00, or
(ii) if it would take longer than seventy-five (75) days to perform such repair
or replacement using reasonably diligent efforts, or (iii) if any lessee has the
right to xxxxx any rent under its lease as a result of such damage and there is
not full rental interruption coverage with respect thereto available to Buyer
through and after the Closing Date until the estimated date of reconstruction,
or (iv) if any lessee or group of lessees leasing 2,500 square feet or more in
the aggregate (as set forth on the Rent Roll) has a right to terminate its lease
(or leases) as a result of such damage and does not irrevocably waive such right
prior to Closing in a form reasonably acceptable to Buyer.
(b) EFFECT OF NON-MATERIAL DAMAGE TO IMPROVEMENTS. If prior to the Closing the
Improvements on the Property are damaged by casualty and such damage is not
material, (i) this Agreement may not be terminated by reason of such casualty
(provided that this does not waive Buyer's other termination rights under this
Agreement) and (ii) Seller will, at Buyer's option, either (a) cause the damaged
portion of the Improvements to be repaired at Seller's sole cost and expense or
(b) reduce the Purchase Price by an amount equal to the actual, reasonable and
necessary cost of repairing or replacing the damaged portions of the
Improvements. Seller will notify Buyer within one (1) day of Seller's receipt of
knowledge of any casualty which occurs in between the date of this Agreement and
the Closing Date.
(c) EFFECT OF MATERIAL DAMAGE TO IMPROVEMENTS. If prior to the Closing the
Improvements are damaged by casualty and such damage is material, Seller shall
notify Buyer in writing of such casualty as soon as practicable. Within ten (10)
days after the occurrence of such casualty, Seller will commence restoration of
the damaged Improvements, and shall complete such restoration in compliance with
all laws and the representations and warranties set forth herein and shall
restore such Improvements their condition prior to the occurrence of the
casualty promptly (but in no event more than seventy-five (75) days thereafter),
and the Closing Date shall be extended (but in no event by more than
seventy-five (75) days) until such damaged Improvements are complete. If Seller
does not commence or complete such restoration within such time period, then
Buyer may elect within the next thirty (30) days pursuant to a writing delivered
to Seller and Escrow Holder to (i) continue this Agreement, in which case Seller
shall assign to Buyer at the Closing any insurance proceeds to which Seller is
entitled with respect to such damage (in which event the Purchase Price shall be
reduced by the amount of any deductible with respect thereto); or (ii) terminate
this Agreement, in which case Buyer shall have no further rights and obligations
to the Seller under this Agreement, but Buyer shall retain its rights and
remedies against Seller. Buyer's failure to have elected any of these options
within the time allotted therefor shall be deemed to be an election of option
(ii).
(d) DEFINITION OF MATERIAL TAKING. For the purposes of this Section 8.2, a
taking or threatened taking by eminent domain or similar proceedings shall be
deemed material if (i) the value of that portion of the Property to be so taken
exceeds $50,000.00, (ii) Buyer determines that the Property so affected is
materially and adversely affected by such taking or threatened taking, (iii) any
lessee has the right to xxxxx any rent under its lease as a result of such
taking or threatened taking, or (iv) any lessee or group of lessees leasing
2,500 square feet or more in the aggregate (as set forth on the Rent Roll) has a
right to terminate its lease (or leases) as a result of such taking or
threatened taking and does not irrevocably waive such right prior to Closing in
a form reasonably acceptable to Buyer.
(e) EFFECT OF NON-MATERIAL TAKING. If prior to the Closing there is a taking or
threatened taking of a portion of the Property which is not material, (i) this
Agreement may not be terminated and (ii) Seller will assign to Buyer at the
Closing all of Seller's rights in and to any condemnation award with respect to
such non-material taking, and there will be no reduction in the Purchase Price.
Seller will deliver written notice to Escrow Holder and Buyer within one (l) day
after Seller receives notice of or otherwise becomes aware of any taking or
threatened taking affecting the Property.
(f) EFFECT OF MATERIAL TAKING. If prior to the Closing there is a taking or
threatened taking of a material portion of the Property or all of it, Seller
shall notify Buyer in writing of such taking or threatened taking, and within
ten (l0) days after Buyer's receipt of such notice, Seller and Buyer shall
endeavor to agree upon whether the Property shall be purchased by Buyer, and any
reduction in the Purchase Price, and any assignment of any condemnation award
with respect to such taking. If within such ten (10) day period Buyer and Seller
have not reached a mutually acceptable agreement as to those matters, Buyer
within thirty (30) days thereafter may elect in writing to (i) continue this
Agreement subject to the taking or threatened taking with an assignment of all
of Seller's rights to condemnation awards, severance damages, payments-in-lieu
thereof or the like; or (ii) terminate this Agreement, in which case Buyer and
Seller shall have no further rights or obligations to one another under this
Agreement. Buyer's failure to have elected any of these options within the time
period allotted therefor shall be deemed to be an election of option (ii).
ARTICLE IX
MAINTENANCE AND OPERATION OF THE PROPERTY; COVENANTS
9.1 MAINTENANCE. In addition to Seller's other obligations hereunder, Seller
shall, upon and after the date of this Agreement and to and including the
Closing Date, at Seller's sole cost and expense, maintain the Property in the
ordinary course of business consistent with past practice, pay all taxes,
assessments, fines, penalties, charges and other operating expenses, and shall
make all repairs, maintenance and replacements of the Improvements and any
Personal Property and otherwise operate the Property in its ordinary and
customary manner, and otherwise in the same manner as before the making of this
Agreement, the same as though Seller were retaining the Property. Seller shall
not make any alterations to the Property without first receiving Buyer's prior
written consent thereto.
9.2 LEASES AND OTHER AGREEMENTS. Seller shall not, on or after the date of this
Agreement and on or prior to the Closing Date, enter into any Lease pertaining
to the Property except pursuant to the terms and conditions set forth in this
Section 9.2. At any time prior to the Closing Date, in the event that Seller
intends to enter into a lease with respect to any portion of the Property,
Seller shall deliver to Buyer a complete copy of the proposed lease, financial
information as to the proposed lessee (with credit reports), and copies of all
brokerage agreements (or a detailed list of all brokerage obligations) with
respect to such lease. Buyer shall review and approve or disapprove of such
lease within ten (10) days after the receipt of all of the foregoing materials.
If all such materials are delivered to Buyer on or prior to ten (l0) days prior
to conclusion of the Review Period, and if (a) such lease (and any brokerage
commissions with respect thereto) was negotiated by Seller in good faith and is
on market terms, (b) the proposed lessee is creditworthy as determined by Buyer
in its reasonable judgment, (c) the proposed use of the premises under such
Lease is compatible with the other uses in the Property and is not inconsistent
with the general leasing policies of Buyer, as determined by Buyer in its
reasonable judgment, and (d) the terms and conditions of such Lease and any
brokerage commissions payable with respect thereto are otherwise acceptable to
Buyer in its reasonable discretion, then Buyer shall approve such lease and if
and when the Closing occurs, Buyer shall assume all obligations under such lease
to pay for or construct tenant improvements and shall assume and pay, as and
when due, all brokerage commissions with respect to such lease which commissions
were disclosed to and approved by Buyer. In the event that Buyer does not
affirmatively approve in writing such lease within such ten (10) day period,
then Buyer shall be deemed to have disapproved such lease and as long as this
Agreement remains effective Seller shall not enter into such lease. Seller's
sole remedy with respect to any such disapproval shall be to terminate this
Agreement, by written notice to Buyer not later than five (5) days later the
expiration of such ten (10) day period, in which case the Xxxxxxx Money Deposit,
with all interest thereon, shall be refunded to Buyer and this Agreement, and
each party's obligations hereunder, shall terminate (except for Buyer's
obligations under Section 4.6 hereof, which shall survive such termination).
Notwithstanding the foregoing, after the conclusion of the Review Period, in no
event shall Seller enter into any lease with respect to the Property without
Buyer's prior written consent, which may be granted or withheld in Buyer's sole
and absolute discretion. After the date hereof, without Buyer's prior written
consent (which will not be unreasonably withheld) in no event shall Seller enter
into any agreement or contract with respect to the Property (other than a lease,
which shall be governed by the foregoing provisions) which is not terminable on
thirty (30) days' prior notice (without premium or penalty).
9.3 ENCUMBRANCES. Seller shall not, in between the date of this Agreement and
the Closing Date, mortgage, encumber or suffer to be encumbered all or any
portion of the Property, which encumbrances would survive the Closing Date,
without the prior written consent of Buyer.
9.4 CONSENTS AND NOTICES. Seller and Buyer shall cooperate with each other and
exercise commercially reasonable efforts to obtain as of the Closing Date, all
consents from, and provide all notices to, any third party and any governmental
or regulatory authority which are required pursuant to any Contract or any
applicable laws as a condition to or in connection with the execution, delivery
or performance of this Agreement or other documents and instruments contemplated
thereby.
9.5 AUDIT COOPERATION. Seller hereby agrees to cooperate with Buyer in producing
audited financial statements for the Property for such periods as may be
requested by Buyer. Such cooperation shall include, without limitation, the
execution and delivery by Seller to Buyer's auditors of such confirmations and
letters as such auditors may reasonably require.
ARTICLE X
MISCELLANEOUS
10.1 NOTICES. Any notice required or permitted to be given under this Agreement
shall be in writing and personally delivered or sent by United States mail,
registered or certified mail, postage prepaid, return receipt requested, or sent
by Federal Express or similar nationally recognized overnight courier service,
and addressed as follows, and shall be deemed to have been given upon the date
of delivery (or refusal to accept delivery) at the address specified below as
indicated on the return receipt or air xxxx:
If to Seller: Centennial Plaza Limited Partnership
co/ Centennial Plaza Inc.
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx Xxxxx
Fax No.: (000)000-0000
with a copy to: Xxxxx Xxxxxxx, Esq.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax No.:(000)000-0000
If to Buyer: The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000)000-0000
If to Escrow Lawyer's Title Insurance Corporation
Holder: 0000 X. Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid.
10.2 BROKERS AND FINDERS. Buyer and Seller each hereby represents and warrants
that no broker was involved in this Agreement or the transactions contemplated
hereby except for American Commercial and Insignia Financial, whose commissions
are to be paid by Seller. In the event of a claim for a broker's fee, finder's
fee, commission or other similar compensation in connection herewith other than
as set forth above, (i) Buyer, if such claim is based upon any agreement alleged
to have been made by Buyer, hereby agrees to reimburse Seller for any liability,
loss, cost, damage or expense (including reasonable attorneys'' and paralegals'
fees and costs) which Seller may sustain or incur by reason of such claim and
(ii) Seller, if such claim is based upon any agreement alleged to have been made
by Seller, hereby agrees to indemnify, defend, protect and hold Buyer harmless
against any and ad liability, loss, cost, damage or expense (including
reasonable attorneys' and paralegals' fees and costs) which Buyer may sustain or
incur by reason of such claim. The provisions of this Section 10.2 shah survive
the Closing or earlier termination of this Agreement.
10.3 SUCCESSORS AND ASSIGNS. This Agreement shad be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns,
except that Seller's interest under this Agreement may not be assigned,
encumbered or otherwise transferred whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the Buyer.
There shall be no third party beneficiaries to this Agreement.
10.4 AMENDMENTS. This Agreement may be amended or modified only by a written
instrument executed by the party asserted to be bound thereby.
10.5 CONTINUATION AND SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES AND
POST-CLOSING OBLIGATIONS. Except as provided in the last paragraph of Article VI
of this Agreement, all indemnities, representations and warranties by, and all
of the post-closing obligations, if any, of, the respective parties contained
herein or made in writing pursuant to this Agreement or any other instrument
delivered by Seller pursuant hereto are intended to and shall remain true and
correct and binding as of the time of Closing and shall survive the execution
and delivery of this Agreement, the delivery of the Deed and transfer of title.
10.6 INTERPRETATION. Whenever used herein, the term "including" shall be deemed
to be followed by the words "without limitation. " Words used in the singular
number shall include the plural, and vice-versa, and any gender shall be deemed
to include each other gender. The captions and headings of the Articles and
Sections of this Agreement are for convenience of reference only, and shall not
be deemed to define or limit the provisions hereof.
10.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
10.8 MERGER OF PRIOR AGREEMENTS. This Agreement (including the exhibits hereto)
constitutes the entire agreement between the parties with respect to the
purchase and sale of the Property specifically described herein and supersedes
all prior and contemporaneous (whether oral or written) agreements and
understandings between the parties hereto relating to the specific subject
matter hereof.
10.9 ATTORNEYS' FEES. In the event of any action or proceeding at law or in
equity between Buyer and Seller (including an action or proceeding between Buyer
and the trustee or debtor in possession while Seller is a debtor in a proceeding
under the Bankruptcy Code (Title 11 of the United States Code) or any successor
statute to such Code) to enforce or interpret any provision of this Agreement or
to protect or establish any right or remedy of either Buyer or Seller hereunder,
the unsuccessful party to such action or proceeding shall pay to the prevailing
party all costs and expenses, including without limitation reasonable attorneys'
and paralegals' fees and expenses (including without limitation fees, costs and
expenses of experts and consultants), incurred in such action or proceeding and
in any appeal in connection therewith by such prevailing party, together with
all costs of enforcement and/or collection of any judgment or other relief. If
such prevailing party shall recover judgment in any such action, proceeding or
appeal, such costs, expenses and attorneys' and paralegals' and others' fees
shall be included in and as a part of such judgment.
10.10 NOTICE OF TERMINATION. If either Buyer or Seller elects to terminate this
Agreement, it will submit to Escrow Holder and the other party hereto a notice
of termination in duplicate. If Escrow Holder receives a notice of termination,
it is instructed to mail and fax one copy to the other such party within one (1)
business day. If Escrow Holder has not received a written objection from the
other party within five (5) business days after mailing and faxing the copy,
Escrow Holder is to (i) comply with the instructions contained in the notice of
termination, (ii) pay cancellation charges out of any funds on deposit in this
Escrow, (iii) return the Xxxxxxx Money Deposit (and interest thereon) to Buyer,
and (iv) cancel this Agreement.
10.11 SPECIFIC PERFORMANCE; DAMAGES. The parties understand and agree that the
Property is unique and for that reason, among others, Buyer will be irreparably
damaged in the event that this Agreement is not specifically enforced.
Accordingly, in the event of any breach or default in or of this Agreement or
any of the warranties, terms or provisions hereof by Seller, Buyer shall have
the right to demand and have specific performance of this Agreement. Buyer and
Seller hereby agree that in the event Seller has breached this Agreement by
fraud, misrepresentation or by breach of a covenant contained herein, Buyer's
right to damages shall be limited to Buyer's actual out-of-pocket costs up to
One Hundred Thousand Dollars ($100,000.00) (exclusive of attorneys fees and
costs incurred in any action to enforce Buyer's rights under this Agreement),
and Buyer hereby waives any right or claim to consequential (as opposed to
actual), or loss of bargain, damages.
10.12 RELATIONSHIP. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture,
financing arrangement or other agreement between Buyer and Seller. No term or
provision of this Agreement is intended to be, or shall be, for the benefit of
any person, firm, organization or corporation not a party hereto, and no such
other person, firm, organization or corporation shall have any right or cause of
action hereunder.
10.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument.
10.14 TIME OF THE ESSENCE. Time is of the essence in this Agreement and with
respect to all of its terms.
IN WITNESS WHEREOF, Seller, Buyer, and Escrow Holder have executed this
Agreement as of the date first above written.
BUYER: THE PRICE REIT, INC.
By: XXXXXX X. XXXXXXXXXX
--------------------
Its: PRESIDENT/CEO
SELLER: CENTENNIAL PLAZA LIMITED
PARTNERSHIP, an Oklahoma limited partnership,
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By: XXXX XXXXX XXXXX
----------------
Its: PRESIDENT
CONSENT OF ESCROW COMPANY
The undersigned Escrow Company agrees to (i) accept the foregoing Agreement,
(ii) be Escrow Holder under the Agreement, and (iii) be bound by the Agreement
in the performance of its duties as Escrow Holder; however, the undersigned will
have no obligations, liability or responsibility under (a) this consent or
otherwise, unless and until the Agreement, fully signed by the parties, has been
delivered to the undersigned, or (b) any amendment to the Agreement unless and
until the amendment is accepted by the undersigned in writing.
Dated: 8/14/96
LAWYER'S TITLE INSURANCE
COMPANY
By: XXXXX CABLE
--------------
Escrow Officer
INDEX TO SCHEDULES
Schedule A The Land
Schedule B Form of Deed
Schedule C Form of Assignment and Assumption of Leases and Rents
Schedule D Form of Xxxx of Sale
Schedule E Form of Assignment and Assumption of Contracts, Intangible
Property, Warranties and Guarantees
Schedule F Form of Non-Foreign Certificate
Schedule G Rent Roll
EXHIBIT "A"
CENTENNIAL SQUARE
FEE PARCEL
19.9265 ACRES
All of Block One (i), Part of Block One-A (1-A), Part of Block Two (2) and Part
of Block Three (3), in united Founders Life Plaza to Oklahoma City, Oklahoma
County, Oklahoma, according to the Plat thereof, recorded in Book 38, Page 27,
Records of Oklahoma County, Oklahoma and as amended in Book 2972, Page 415,
Records of Oklahoma County, Oklahoma.
Beginning at a point bearing S 88. 46' 09" E, 21.00 feet from the Northeast
corner of Block One (1), said-point being on the southerly line of X.X. 00xx
Xxxxxx and also being the principal place and POINT OF BEGINNING of the
following description:
Thence departing from said Southerly line, S 00.04' 37" W, a distance of 154.00
feet to a point; Thence S 88. 46' 09" E, a distance of 154.00 feet to a point on
the Westerly line of North May Avenue; Thence S 00. 04' 37. W. along said
Westerly line, a distance of 546.00 feet to a point; thence departing from said
Westerly line, N 88. 46' 09" W a distance of 1050.00 feet to a point; thence N
01. 13' 51" E a distance of 44.26 feet to a point; thence N 41. 54' 22" W a
distance of 87.12 feet to a point; thence S 48. 05' 38" W 205.00 feet to a point
on the Northeasterly right-of-way line of Xxxxxxxxx Drive; thence N 41. 54' 22"
W along said Northeasterly line a distance of sa .53 feet to a point; thence
52.24 feet along an arc to the right having a radius of 40.59 feet and a central
angle of 73. 44' 19" (subtended by a chord bearing N 05. 02' 09" W a distance of
48.71 feet) to a point on the East right-of-way line of North Drexel Avenue;
thence along said East line 156.85 feet along an arc to the left having a radius
of 283.0 feet and a central angle of 31. 45' 20"(sub-tended by a chord bearing N
15. 57' 24" E a distance of 154.85 feet); thence continuing along said East line
N 00. 04' 37" E a distance of 444.49 feet to a point; thence 38.98 feet (38.91
feet per plat) along an arc to the right having a radius of 24.50 feet (24.46
feet per plat) and a central angle of 91. 09' 14. (sub-tended by a chord bearing
N 45. 39' 14" E a distance of 35.00 feet) to a point on the aforementioned South
right-of-way line of N.W. 00xx Xxxxxx; thence along said South line S 88. 46'
09" E a distance of 1102.00 feet to the principal POINT OF BEGINNING and
containing 867,997 square feet or 19.9265 acres of land, more or less.
EXHIBIT B
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
XXXXXX, XXXX & XXXXXXXX LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0 197
Attention: Xxxxxxx X. Xxxxxxx
-----------------------------------------------------------------------------
SPECIAL WARRANTY DEED
KNOW ALL LIEN BY THESE PRESENTS:
That CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma limited partnership (the
"Grantor"), in consideration of the sum of Ten Dollars ($10.00), in hand paid,
the receipt of which is hereby acknowledged, does hereby grant, bargain, sell,
convey and assign unto THE PRICE REIT, INC., a Maryland corporation (the
"Grantee", the following described real property and premises situated in the
City of Oklahoma City, Oklahoma County, State of Oklahoma, to-wit:
(the "LAND")
TOGETHER WITH, all rights, privileges and easements appurtenant to and for the
benefit of the Land, including, without limitation, all minerals, oil, gas and
other hydrocarbon substances on and under the Land, as well as all development
rights, air rights, water, water rights and water stock relating to the Land and
any other easements, rights-of-way or appurtenances owned by Grantor and used in
connection with the beneficial operation, use and enjoyment of the Land, any
leases thereof, any improvements now or hereafter thereon, or any intangible
property with respect thereto, or any other appurtenance, together with all
rights of Grantor in and to streets, sidewalks, alleys, driveways, parking areas
and areas adjacent thereto or used in connection therewith, and all rights of
Grantor in any land lying in the bed of any existing or proposed street adjacent
to the Land together with all the improvements thereon and appurtenances
thereunto belonging, if any.
GRANTOR warrants title to the foregoing as to all claims of any person claiming
by, through or under the Grantor but not otherwise.
TO HAVE AND TO HOLD the above described property unto the Grantee, and the
Grantee's heirs. personal representatives, successors and assigns, forever,
free, clear and discharged of and from all former grants. charges, taxes,
judgments, mortgages, liens and encumbrances of whatsoever nature made or
suffered to be made by the Grantor; SUBJECT to restrictions, reservations,
easements, rights of way, all mineral interests previously reserved or conveyed
of record, covenants of record, and other encumbrances disclosed by Grantor, or
the title insurer insuring this Deed, to Grantee in writing prior to the date
hereof, if any.
IN WITNESS WHEREOF, the Grantor has executed this instrument this day
of , 0000
XXXXXXXXXX XXXXX LIMITED PARTNERSHIP,
an Oklahoma limited partnership
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By: XXXX XXXXX XXXXX
----------------
Printed Name: Xxxx Xxxxx Xxxxx
ACKNOWLEDGMENT
STATE OF OKLAHOMA )
)
COUNTY OF OKLAHOMA )
The foregoing instrument was acknowledged before me this day of ,
1996, by
----------------------
Notary Public
My Commission expires:
(SEAL)
EXHIBIT C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
XXXXXX, XXXX & XXXXXXXX LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma limited
partnership ("ASSIGNOR"), hereby assigns, sets over, transfers and delegates to
THE PRICE REIT, INC., a Maryland corporation ("ASSIGNEE"), all of Assignor's
right, title, interest, claim and estate in and to all leases, occupancy
agreements and similar agreements, together with all modifications, extensions
and renewals thereof, all security therefor, and all guaranties of any of the
foregoing (collectively, the "LEASES") which demise all or an part of, or
interest in, the real property more particularly described on EXHIBIT A attached
hereto and incorporated herein (the "LAND"), together with all income, receipts,
fund and revenues of any kind whatsoever payable under the Leases or otherwise
with respect to the Land, whether heretofore accrued or hereafter arising.
Notwithstanding the foregoing, in no event shall the Leases include any claim,
cause of action or damages against the former tenant commonly known as
"Discovery Zone" arising out of its rejection, prior to the date hereof, of its
lease of a portion of the Land.
Assignee assumes ail of Assignor's obligations under or with respect to the
Leases listed on EXHIBIT B attached hereto and incorporated herein (the "ASSUMED
LEASES"), which obligations arise on or after the date hereof and relate to the
period commencing on the date hereof.
Assignor hereby agrees to indemnify Assignee against, defend and hold Assignee
harmless from any and all cost, liability, loss, damage or expense, including,
without limitation, reasonable attorneys' fees, originating or relating to the
period prior to the date hereof and arising out of the landlord's obligations
under the Leases. Assignee hereby agrees to indemnify Assignor against, defend
and hold Assignor harmless from any and all cost, liability, loss, damage or
expense, including, without limitation, reasonable attorneys' fees, originating
and relating to the period on or after the date hereof and arising out of the
landlord's obligations under the Assumed Leases.
If any litigation between Assignor and Assignee arises out of the obligations of
the parties under this Assignment or concerning the meaning or interpretation of
any provision contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation
including, without limitation, reasonable attorneys' fees. Any such attorneys'
fees and other expenses incurred by either party in enforcing a judgment in its
favor under this Assignment shall be recoverable separately from and in addition
to any other amount included in such judgment, and such attorneys' fees
obligation is intended to be severable from the other provisions of this
Assignment and to survive and not be merged into any such judgment.
Assignor covenants and agrees with Assignee to hereafter furnish to Assignee
such further conveyance documents and consents as Assignee may reasonably
require in furtherance of this Assignment or to carry out the intent hereof.
This Assignment may be executed and delivered in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original and
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement effective
as of this day of 1996.
ASSIGNOR:
CENTENNIAL PLAZA LIMITED PARTNERSHIP,
an Oklahoma limited partnership
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By: XXXX XXXXX XXXXX
----------------
Printed Name: XXXX XXXXX XXXXX
Its: PRESIDENT
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland corporation
By: XXXXXX X. XXXXXXXXXX
--------------------
Printed Name: XXXXXX X. XXXXXXXXXX
Its: PRESIDENT
EXHIBIT "A"
TO
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT "B"
TO
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
SCHEDULE OF ASSUMED LEASES
EXHIBIT D
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma limited
partnership ("SELLER"), hereby transfers, conveys and assigns, free and clear of
any and all liens, security interests, encumbrances, rights or adverse claims
(other than the lien securing the Existing Loan), to THE PRICE REIT, INC., a
Maryland corporation ("BUYER"), and its successors and assigns forever, any and
all tangible personal property owned by Seller and located on or about or used
in connection with the real property more particularly described on Exhibit A
attached hereto and made a part hereof (the "PROPERTY") or any improvements
thereon, including but not limited to fixtures, furnishings, furniture, tools
machinery and/or equipment, operational instructions and/or specifications,
surveys, drawings, business records and the personal property listed on any
schedule attached hereto.
Seller covenants and agrees with Buyer to hereafter furnish to Buyer such
further conveyance documents and consents as Buyer may reasonably require in
furtherance of this Xxxx of Sale or to carry out the intent hereof.
If any litigation between Seller and Buyer arises out of the obligations of the
parties under this Xxxx of Sale or concerning the meaning or interpretation of
any provision contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation including, without limitation,
reasonable attorneys, fees. Any such attorneys' fees and other expenses incurred
by either party in enforcing a judgment in its favor under this Xxxx of Sale
shall be recoverable separately from and in addition to any other amount
included in such judgment, and such attorneys' fees obligation is intended to be
severable from the other provisions of this Xxxx of Sale and to survive and not
be merged into any such judgment.
Capitalized terms not otherwise defined herein shall have the meanings given
them in that certain Purchase and Sale Agreement and Escrow Instructions, dated
as of August ___, 1996, by and among Buyer, Seller and Lawyer's Title Insurance
Corporation.
IN WITNESS HEREOF, Seller has caused this instrument to be executed and
delivered as of this ___th day of, 1996.
CENTENNIAL PLAZA LIMITED PARTNERSHIP,
an Oklahoma limited partnership
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By: XXXX XXXXX XXXXX
----------------------
Printed Name: Xxxx Xxxxx Xxxxx
Its: President
EXHIBIT "A"
TO
XXXX OF SALE
DESCRIPTION OF PROPERTY
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF CONTRACTS. INTANGIBLE
PROPERTY. WARRANTIES AND GUARANTEES
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND
GUARANTIES (this "ASSIGNMENT") is made as of the day of ___, 1996, by and
between CENTENNIAL PLAZA LIMITED' PARTNERSHIP, an Oklahoma limited partnership
("ASSIGNOR"), and THE PRICE REIT, INC., a Maryland corporation ("ASSIGNEE").
RECITALS;
---------
Pursuant to that certain Purchase and Sale Agreement and Escrow Instructions
dated as of August 7, 1996 by and between Assignor, Assignee and Lawyer's Title
Insurance Corporation (the "AGREEMENT"), Assignee has this day acquired from
Assignor certain interests in land, buildings and improvements more particularly
described on EXHIBIT A attached hereto and made a part hereof (the "PROPERTY").
Capitalized terms not otherwise defined herein shall have the meanings given
them in the Agreement.
In consideration of the acquisition of the Property by Assignee and other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Assignor hereby assigns, transfers and delegates to Assignee all of Assignor's
right, title and interest in and to the following (collectively, the "ASSIGNED
PROPERTY"): (i) any intangible personal property which relates to and is
reasonably required for the operation and functioning of the Land, Improvements
or Personal Property, including without limitation all transferable licenses and
governmental approvals and permits of any nature relating to the Property or the
Improvements or any repairs or renovations to such Improvements, and (ii) any
and all warranties, guaranties, contracts and other rights owned by Assignor
relating to the ownership, operation or functioning of all or any part of the
Property (including without limitation all third party guarantees and
warranties, express or implied, in connection with the construction of the
Improvements). Assignee hereby assume all obligations of Assignor arising on or
after the date hereof under the contracts listed on EXHIBIT B attached hereto.
Assignor and Assignee agree that the Assigned Property shall exclude all claims,
causes of action and damages against the tenant in the Property known as
Discovery Zone, which claims, causes of action and damages arise out of
Discovery Zone's rejection of its lease of a portion of the Property.
If any litigation between Assignor and Assignee arises out of the obligations of
the parties under this Assignment or concerning the meaning or interpretation of
any provision contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation including, without limitation,
reasonable attorneys, fees. Any such attorneys' fees and other expenses incurred
by either party in enforcing a judgment in its favor under this Assignment shall
be recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys' fees obligation is intended to be severable
from the other provisions of this Assignment and to survive and not be merged
into any such judgment.
This Assignment may be executed and delivered in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original and
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
effective as of the date set forth below.
Executed as of the date first above written.
ASSIGNOR:
CENTENNIAL PLAZA LIMITED PARTNERSHIP,
an Oklahoma limited partnership
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By: XXXX XXXXX XXXXX
----------------
Printed Name: Xxxx Xxxxx Xxxxx
Its: President
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland corporation
By: XXXXXX X. XXXXXXXXXX
--------------------
Printed Name: Xxxx X. Xxxxxxxxxx
Its: President
EXHIBIT "A"
TO
ASSIGNMENT AND ASSUMPTION OF CONTRACTS, INTANGIBLE
PROPERTY, WARRANTIES AND GUARANTEES
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT "B"
TO
ASSIGNMENT AND ASSUMPTION OF CONTRACTS, INTANGIBLE PROPERTY
WARRANTIES AND GUARANTEES
SCHEDULE OF ASSUMED CONTRACTS
EXHIBIT F
CERTIFICATION OF NON-FOREIGN STATUS
(Foreign Investment in Real Property Tax Act)
Internal Revenue Code Section 1445 provides that a transferee of a United States
real property interest must withhold tax if the transferor is a foreign person.
To inform THE PRICE REIT, INC. ("TRANSFEREE") that withholding of tax is not
required upon the disposition of a United States real property interest by the
undersigned ("TRANSFEROR"), Transferor hereby certifies and declares as follows:
1. Transferor's U.S. tax identification/social security number is:
2. Transferor's principal office address is c/o Centennial Plaza, Inc., 0000 X.
Xxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000; and
3. Transferor is not a foreign person (foreign corporation, foreign partnership,
foreign trust, foreign estate or non-resident alien), as defined in the Internal
Revenue Code and Income Tax Regulations.
Transferor acknowledges that this certification may be disclosed by Transferee
to the Internal Revenue Service and that any false statement contained in this
certification may be punished by fine or imprisonment or both.
Transferor understands that Transferee is relying on this certification to
determine whether withholding is required by Transferee pursuant to Internal
Revenue Code Section 1445.
Under penalties of perjury, the undersigned signatory declares that: I have
examined this certification, to the best of my knowledge and belief it is true
and complete, and I am duly authorized to execute this certification on behalf
of Transferor.
Dated: , 1996
XXXX XXXXX XXXXX
----------------
Xxxx Xxxxx Xxxxx, on behalf of Centennial
Plaza Limited Partnership
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
(the "First Amendment") is made and entered into as of October 7, 1996, by and
between Centennial Plaza Limited Partnership, an Oklahoma limited partnership,
("Seller") and The Price Reit, Inc., a Maryland corporation ("Buyer").
A. Buyer and Seller are parties to that certain Purchase and Sale
Agreement and Escrow Instructions dated August 23, 1996 ("Purchase Agreement").
Under the Purchase Agreement, Buyer has the right to terminate the Purchase
Agreement at any time on or prior to the conclusion of the Review Period (as
defined in the Purchase Agreement).
B. Buyer and Seller desire to amend the Purchase Agreement as set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
legally bind themselves and their respective successors and permitted assigns,
Seller and Buyer do hereby amend the Agreement as follows:
1. The conclusion of the Review Period is hereby extended to October 14,
1996.
2. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Purchase Agreement.
3. Except as modified herein, all terms, conditions and covenants of the
Purchase Agreement shall remain in full force and effect. This First Amendment
may be executed in multiple counterparts, all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first above written.
SELLER:
CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma
limited partnership,
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By:___________________________
Its:___________________________
BUYER:
THE PRICE REIT, INC.
By:_________________________________
Its:_________________________________
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (the "Second Amendment") is made and entered into as of November
4, 1996, by and between Centennial Plaza Limited Partnership, an Oklahoma
limited partnership, ("Seller") and The Price Reit, Inc., a Maryland corporation
("Buyer").
A. Buyer and Seller are parties to that certain Purchase and Sale
Agreement and Escrow Instructions dated August 23, 1996, as amended on October
7, 1996 ("Purchase Agreement").
B. Buyer and Seller desire to amend the Purchase Agreement as set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
legally bind themselves and their respective successors and permitted assigns,
Seller and Buyer do hereby amend the Agreement as follows:
1. The first sentence of Section 5.2 of the Agreement is hereby deleted
and the following is substituted in lieu therefor:
"The Closing Date" shall occur no later than November 15, 1996."
2. The first two lines of the first sentence of Section 5.3 of the
Agreement are hereby deleted and the following is substituted in lieu therefor:
"In the event the Closing does not occur on or before November 15, 1996,
the Escrow Holder shall,"
3. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Purchase Agreement.
4. Except as modified herein, all terms, conditions and covenants of the
Purchase Agreement shall remain in full force and effect. This Second Amendment
may be executed in multiple counterparts, all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date first above written.
SELLER:
CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma
limited partnership,
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By:___________________________
Its:___________________________
BUYER:
THE PRICE REIT, INC.
By:_________________________________
Its:____________________________
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
(the "Third Amendment") is made and entered into as of November 13, 1996, by
and between Centennial Plaza Limited Partnership, an Oklahoma limited
partnership, ("Seller") and The Price Reit, Inc., a Maryland corporation
("Buyer").
A. Buyer and Seller are parties to that certain Purchase and Sale
Agreement and Escrow Instructions dated August 23, 1996, as amended on October
7, 1996 and as amended November 4, 1996 ("Purchase Agreement").
B. Buyer and Seller desire to amend the Purchase Agreement as set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
legally bind themselves and their respective successors and permitted assigns,
Seller and Buyer do hereby amend the Agreement as follows:
1. The first sentence of Section 5.2 of the Agreement is hereby deleted
and the following is substituted in lieu therefor:
"The Closing Date" shall occur no later than November 18, 1996."
2. The first two lines of the first sentence of Section 5.3 of the
Agreement are hereby deleted and the following is substituted in lieu therefor:
"In the event the Closing does not occur on or before November 18, 1996,
the Escrow Holder shall,"
3. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Purchase Agreement.
4. Except as modified herein, all terms, conditions and covenants of the
Purchase Agreement shall remain in full force and effect. This Third Amendment
may be executed in multiple counterparts, all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first above written.
SELLER:
CENTENNIAL PLAZA LIMITED PARTNERSHIP, an Oklahoma
limited partnership,
By: Centennial Plaza Incorporated, an Oklahoma
corporation, general partner
By:___________________________
Its:___________________________
BUYER:
THE PRICE REIT, INC.
By:_________________________________
Its:_________________________________
EXHIBIT 12.1 - STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
For the period
from July 31, 1991 For the nine
(inception) through Year ended December 31, months ended
December 31, 1991 1992 1993 1994 1995 September 30,1996
------------------ -------- -------- -------- ------- --- -----------------
Pretax income from
continuing operations $438 $4,118 $9,128 $16,904 $16,386 $12,296
Interest - 3,203 4,287 4,319 7,070 8,746
Less interest capitalized
during the period - - (30) (234) (415) (241)
Amortization of deferred
loan fees and discount - 17 99 152 284 512
------------------ -------- -------- -------- -------- -----------------
Earnings $438 $7,338 $13,484 $21,141 $23,325 $21,313
=================== ======== ======== ======== ========= =================
Interest - 3,203 4,287 4,319 7,070 8,746
Amortization of deferred
loan fees and discount - 17 99 152 284 512
------------------ -------- -------- -------- -------- -----------------
Fixed Charges - $3,220 $4,386 $4,471 $7,354 $9,258
================== ======== ======== ======== ======== =================
Ratio of Earnings to
Fixed Charges - 2.28 x 3.07 x 4.73 x 3.17 x 2.30 x
================== ======== ======== ======== ======== =================
Exhibit 15.1 Letter Regarding Unaudited Interim Financial Information
November 14, 1996
The Board of Directors
The Price REIT, Inc.
We are aware of the incorporation by reference in the Registration Statements
(Form S-3 No. 33-75548; Form S-8 No. 33-87812; Amendment No. 1 to Form S-3 No.
33-95832 and related Prospectus; and Form S-3 filed on October 30, 1996) of The
Price REIT, Inc. for the registration of 500,000 shares of its common stock;
600,000 shares of its common stock; and an aggregate maximum total of
$175,000,000 and $10,566,750 of debt securities, preferred stock, common stock
and warrants for the purchase of its preferred stock or common stock,
respectively, of our report dated October 23, 1996 relating to the unaudited
condensed consolidated interim financial statements of The Price REIT, Inc. that
is included in its Form 10-Q for the quarter ended September 30, 1996.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Ernst & Young LLP
San Diego, California
