AGREEMENT OF PURCHASE AND SALE
by and between
THE PRICE REIT, INC., a Maryland corporation,
as Purchaser
and
WESTFARMS, L.P., a Connecticut limited partnership,
as Seller
Dated as of June 19, 1997
_________________________________________________________________
Table of Contents
SECTION 1 DEFINITIONS 1
SECTION 2 PURCHASE AND SALE 7
SECTION 3 PAYMENT OF PURCHASE PRICE 7
3.1 Purchase Price 7
3.2 Manner of Delivery 7
SECTION 4 REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 8
4.1 Representations and Warranties of Purchaser
to Seller 8
4.2 Representations and Warranties of Seller 9
4.3 Limitations Period 12
SECTION 5 TITLE REVIEW AND DUE DILIGENCE 13
5.1 Title Review 13
5.2 Due Diligence Review 14
5.3 Deliveries 15
SECTION 6 COVENANTS OF SELLER AND PURCHASER 15
6.1 Covenants 15
6.2 Consents 15
6.3 Liens 16
6.4 Leases 16
6.5 Insurance 16
6.6 New Contracts 16
6.7 Cooperation 16
SECTION 7 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE 17
7.1 Representations and Warranties at Closing 17
7.2 Compliance with Agreement 17
7.3 Title Policy 17
7.4 Approval of Board of Directors 17
7.5 No Condemnation 17
7.6 Consents Received 17
7.7 No Change in Law 18
7.8 Financial Audit 18
7.9 Bankruptcy and Related Matters 18
7.10 No Prior Termination 18
7.11 Condition of the Property 18
7.12 Estoppels 19
7.13 Existing Loan 19
7.14 Further Assurances 19
SECTION 8 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE 19
8.1 Representations and Warranties True at Closing19
8.2 Compliance with Agreement 19
8.3 No Change in Law 19
8.4 Bankruptcy and Related Matters 20
8.5 No Prior Termination 20
8.6 Existing Loan 20
8.7 Partner Consent 20
8.8 Further Assurances 20
SECTION 9 CLOSING 20
9.1 Time and Place 20
9.2 Xxxxxxx Money Deposits 20
9.3 Deposits in Escrow Prior to Closing 21
9.4 Seller's Deliveries to the Title Escrow 21
9.5 Seller's Deliveries Outside the Title Escrow 22
9.6 Purchaser's Deliveries to the Title Escrow 23
9.7 Close of Escrow 23
9.8 Post-Closing Covenants 23
SECTION 10 CLOSING ADJUSTMENTS AND RELATED ITEMS 24
10.1 Closing Costs 24
10.2 Prorations 24
10.3 Title and Escrow Costs 26
10.4 Assumption Fee 26
10.5 Calculations for Closing 26
SECTION 11 FAILURE OF SELLER TO PERFORM; TERMINATION; NO
WAIVER 27
11.1 Purchaser's Remedies 27
11.2 Seller's Remedies 27
11.3 Termination 28
SECTION 12 BROKERS 28
SECTION 13 RISK OF LOSS 28
13.1 Definition of Material Damage 28
13.2 Effect of Non-Material Damage to Improvements 28
13.3 Effect of Material Damage to Improvements 29
13.4 Definition of Material Taking 29
13.5 Effect of Non-Material Taking 29
13.6 Effect of Material Taking 30
13.7 Extension of Outside Closing Date 30
SECTION 14 MISCELLANEOUS 30
14.1 Counterparts 30
14.2 Governing Law 30
14.3 Entire Agreement 30
14.4 Amendment 31
14.5 Waiver 31
14.6 Successors and Assigns 31
14.7 Transfer to Qualified Intermediary 31
14.8 Confidentiality 31
14.9 Time of the Essence 31
14.10 Personal Liability 31
14.11 Attorneys' Fees 32
14.12 Notices 32
14.13 Headings 33
14.14 Severability 33
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and entered into
as of June 19, 1997 by and between THE PRICE REIT, INC., a Maryland corporation
("Purchaser"), and WESTFARMS, L.P., a Connecticut limited partnership
("Seller").
RECITALS
A. Seller owns the real property commonly known as West Farms Shopping Center, a
shopping center containing approximately 184,981 rentable square feet located in
the towns of Farmington and New Britain, Connecticut (such property is referred
to herein as the "Property"), and more particularly described on Exhibit A
attached hereto.
B. Seller desires to, and Purchaser desires Seller to, transfer and assign to
Purchaser, all of Seller's right, title and interest in and to the Property in
exchange for the consideration more particularly described herein, on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises, and the
mutual undertakings set forth below, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
TERMS OF AGREEMENT
SECTION 1
Definitions
The following capitalized terms not otherwise defined herein shall have the
following meanings herein:
Additional Xxxxxxx Money Deposit. "Additional Xxxxxxx Money Deposit" shall have
the meaning set forth in Section 9.2.2 hereof.
Appurtenances. "Appurtenances" shall mean all rights, privileges, interests,
licenses, claims, easements, benefits, covenants, conditions and servitudes of
any type or nature, whether now owned or hereafter acquired, which are
appurtenant to or otherwise benefit the Land, including without limitation, all
minerals, oil, gas and other hydrocarbon substances on or under the Land, to the
extent such rights, privileges, interests, licenses, claims, easements,
benefits, covenants, conditions and servitudes are owned by Seller, 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 Improvements and the Intangible Property with respect thereto
or any other appurtenance thereto, together with all rights of Seller in and to
streets, sidewalks, alleys, gores, strips, 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.
Assignment of Contracts. The "Assignment of Contracts" shall mean an assignment
of contracts in the form of Exhibit C attached hereto.
Assignment of Leases. The "Assignment of Leases" shall mean an assignment of
leases in the form of Exhibit D attached hereto.
Assumption Agreement. The "Assumption Agreement" shall mean a form of
assumption agreement acceptable to Purchaser in its sole and absolute discretion
pursuant to which Purchaser shall assume the obligations of Seller under the
Existing Loan arising on or after the Closing Date, and the Existing Lender
shall consent to the sale of the Property to Purchaser.
Audit. "Audit" shall have the meaning set forth in Section 7.8 hereof.
Auditor. "Auditor" shall have the meaning set forth in Section 7.8 hereof.
Xxxx of Sale. The "Xxxx of Sale" shall mean a xxxx of sale in the form of
Exhibit E attached hereto.
Charter Documents. "Charter Documents" shall mean the Articles of Amendment and
Restatement and the Amended and Restated Bylaws of Purchaser, as amended and
modified through the date hereof.
Closing. "Closing" shall mean the date and time at which (i) all of the
conditions to the conveyance of the Property have been fully performed and
satisfied or waived pursuant to this Agreement, (ii) Title Company is committed
to issue the Title Policy, and (iii) the Deed has been recorded in the Official
Records.
Closing Date. "Closing Date" shall be the date on which the Closing occurs.
Code. "Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated thereunder from time to time.
Contracts. "Contracts" shall mean all written or oral management,
architectural, engineering, leasing, insurance, bonding, construction,
financing, guarantee, indemnity, service, maintenance, operating, repair,
collective bargaining, employment, employee benefit, equipment leasing, supply,
warranty, purchase, consulting, professional service, advertising, promotion,
public relations and other contracts and commitments (excluding the Leases) to
which Seller is a party and which relate in any way to the Real Property or any
part thereof.
Deed. "Deed" shall mean a deed in the form attached hereto as Exhibit B.
Deposits. "Deposits" shall mean, collectively, the Xxxxxxx Money Deposit and
the Additional Xxxxxxx Money Deposit.
Xxxxxxx Money Deposit. "Xxxxxxx Money Deposit" shall have the meaning set forth
in Section 9.2.1 hereof.
Environmental Report. "Environmental Report" shall mean, collectively, that
certain Phase I dated April 1995 prepared by TRC Environmental Corp. ("TRC") as
project number 18545; that certain Phase II dated April 1995 prepared by TRC as
project number 18668; that certain letter dated April 30, 1995 from Xxxxxxx
Construction Inc. to Seller; and that certain letter dated May 18, 1995 from TRC
to Seller; each as previously delivered by Seller to Purchaser.
Environmental Requirements. "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.
Escrow Company. "Escrow Company" shall mean Lawyers Title Insurance
Corporation.
Existing Lender. "Existing Lender" shall mean Massachusetts Mutual Life
Insurance Company, a Massachusetts corporation.
Existing Loan. "Existing Loan" shall mean the existing loan secured by the
Property.
Existing Loan Balance. "Existing Loan Balance" shall mean the outstanding
principal amount of the Existing Loan as of the Closing Date.
Existing Loan Documents. "Existing Loan Documents" shall mean, collectively,
(i) that certain Construction Loan Agreement dated as of June 9, 1995, executed
by and between Seller, as borrower, and Existing Lender, as lender; (ii) that
certain Promissory Note dated June 9, 1997 in the original principal amount of
$15,000,000, executed by Seller and payable to Existing Lender; (iii) that
certain Open-End Construction Mortgage and Security Agreement dated as of
June 9, 1995, executed by Seller, as mortgagor, to Existing Lender, as
mortgagee, recorded in Volume 1200, Page 927 of the official records of Hartford
County, Connecticut, and (iv) that certain Assignment of Leases and Rents dated
as of June 9, 1995, executed by Seller, as assignor, to Existing Lender, as
assignee, recorded in Volume 1200, Page 928 of the official records of Hartford
County, Connecticut.
Existing Loan Estoppel. The "Existing Loan Estoppel" shall mean a written
estoppel statement executed by Existing Lender, in form and substance acceptable
to Purchaser in its reasonable discretion, setting forth the outstanding
principal balance of the Existing Loan, and stating that there are no defaults
(or events, conditions, circumstances or omissions that with the giving of time
or the passage of time or both would constitute defaults) under the Existing
Loan Documents.
FIRPTA Affidavit. "FIRPTA Affidavit" means an affidavit in the form attached
hereto as Exhibit F.
Governmental Approval. "Governmental Approval" shall mean an authorization,
consent or approval of, permit, license or exemption issued by, or registration
or filing with, or report or notice to, any Governmental Authority.
Governmental Authority. "Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government, including without limitation, any government and any
authority, agency, department, board, commission or instrumentality of the
United States of America, any state of the United States or any political
subdivision thereof, and any tribunal or arbitrator of competent jurisdiction.
Hazardous Materials. "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 Connecticut 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.
Improvements. "Improvements" shall mean all of Seller's right, title, claim,
interest and estate in, to and under any and all improvements, structures or
fixtures constructed upon the Land including, without limitation, all buildings
and structures presently located on the Land, 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.
Intangible Property. "Intangible Property" shall mean all of Seller's right,
title, claim, interest and estate in, to and under (i) any and all intangible
personal property owned by Seller which is appurtenant to or used by Seller in
connection with the Real Property or the Improvements or Personal Property with
respect thereto; (ii) any and all Contracts with respect to the Real Property;
(iii) any and all other property, rights in or to property, general intangibles
and contractual rights which Seller may have which are necessary in connection
with, or otherwise affect or relate directly to, the acquisition, development,
improvement, holding, use, operation, maintenance, leasing or sale of the Real
Property or the Improvements or Personal Property with respect thereto,
including, but not limited to, any and all plans, specifications, subdivision
maps and filings with respect thereto, applications, entitlements, Licenses and
Entitlements, subdivision or other bonds, engineering or soil reports, surveys,
maps, inspection reports, management reports, marketing reports, marketing
displays and brochures, all contract rights, warranties from contractors,
architects, engineers and material and labor suppliers whether written or
implied, all books and records, all claims, choses in action, judgments,
remedies, damages and causes of action, all leases, easements, licenses and
rights of way, occupancy or use agreements and all other documents affecting or
relating to the Real Property or the Improvements or Personal Property with
respect thereto; and (iv) any and all other general intangibles, warranties,
guarantees, permits, maps, surveys, entitlements and other intangible rights of
any type or nature relating to any or all of the Real Property, or the
Improvements or Personal Property with respect thereto.
Irrevocable Instructions. "Irrevocable Instructions" shall have the meaning set
forth in Section 9.3 hereof.
Land. "Land" shall mean each separate parcel of real property described in
Exhibit A attached hereto and incorporated herein by this reference and each
reference to the "Land" shall refer to each such separate parcel.
Leases. "Leases" shall mean all leases, occupancy agreements and other similar
agreements to which Seller is a party or by which it or any portion of the
Property 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 Real Property.
Licenses and Entitlements. "Licenses and Entitlements" shall mean all licenses,
franchises, certifications, authorizations, approvals, rights, privileges,
entitlements and permits issued or approved by any governmental or quasi-
governmental authority or other person or entity having authority over the Real
Property, and all applications, filings and submittals therefor, in each case
relating to the operation, ownership, subdivision, development, use or
maintenance of the Real Property or any part thereof, including, without
limitation, construction permits, grading permits, elevator permits, machinery
permits, business licenses, ingress and egress permits, development agreements,
subdivision, parcel and tract maps and approvals thereof, plans and/or permits
required under the applicable zoning regulations, variances, utility agreements
and commitments, improvement agreements, certificates of occupancy and the like.
Objectionable Matters. "Objectionable Matters" shall have the meaning set forth
in Section 5.1 hereof.
Official Records. "Official Records" shall mean the official records of the
jurisdiction in which the Land is located.
Outside Closing Date. "Outside Closing Date" shall mean the date which is
forty-five (45) days following the final day of the Review Period, or such other
date as may be mutually agreed upon by the parties.
Permitted Exceptions. "Permitted Exceptions" shall mean (i) exceptions to title
approved in writing by Purchaser pursuant to Section 5 hereof, (ii) the Leases,
(iii) all matters that are disclosed on the Survey referred to in Section 5.1
hereof and approved in writing by Purchaser pursuant to Section 5 hereof, and
(iv) the mortgage and the assignment of leases and rents securing the Existing
Loan.
Personal Property. "Personal Property" shall mean and include any and all
tangible personal property located on or about or used in connection with the
Real Property and owned by Seller, including, but not limited to, fixtures,
furniture, furnishings, tools, machinery, appliances and other apparatus and
equipment, plans, specifications, operational handbooks, machinery and/or
equipment, operational instructions and/or specifications, surveys, drawings and
business records.
Property. "Property" shall mean the Real Property, Personal Property and
Intangible Property.
PTR. "PTR" shall have the meaning set forth in Section 5.1 hereof.
Purchase Price. "Purchase Price" shall mean the consideration described in
Section 3 hereof.
Real Property. "Real Property" shall mean the Land, the Appurtenances and the
Improvements with respect thereto.
Recordation. "Recordation" shall mean the act of recording the Deed on the
Closing Date in the Official Records.
Review Period. "Review Period" shall have the meaning set forth in Section 5.1
hereof.
Security Deposits. "Security Deposits" shall mean, collectively, any and all
prepaid rents, refundable deposits, or other security (including letters of
credit) posted or paid by any person under the Leases.
Survey. "Survey" shall have the meaning set forth in Section 5.1 hereof.
Title Company. "Title Company" shall mean Lawyers Title Insurance Corporation.
Title Escrow. "Title Escrow" shall have the meaning set forth in Section 3.2
hereof.
Title Notice. "Title Notice" shall have the meaning set forth in Section 5.1
hereof.
Title Policy. "Title Policy" shall have the meaning set forth in Section 7.3
hereof.
SECTION 2
Purchase and Sale
At the closing of the transactions contemplated by this Agreement, subject to
the terms and conditions of this Agreement, Seller shall assign, transfer,
convey and deliver to Purchaser, and Purchaser shall accept from Seller, the
Property.
SECTION 3
Payment of Purchase Price
3.1. Purchase Price. The Purchase Price is Twenty Million and No/100 Dollars
($20,000,000.00) cash, subject to prorations and adjustment as provided in
Section 10 hereof.
3.2. Manner of Delivery. At the Closing, Purchaser shall cause the Purchase
Price to be paid as follows:
(a) Purchaser shall assume the obligations of Seller under the Existing Loan
Documents with respect to the Existing Loan Balance; and
(b) Purchaser shall cause to be paid into the escrow with the Escrow Company
(the "Title Escrow") by wire transfer of immediately available funds in
accordance with the provisions of Section 9 hereof, an amount equal to the
difference of the Purchase Price less the Existing Loan Balance, less the
Deposits and interest accrued thereon.
SECTION 4
Representations and Warranties; Indemnification
4.1 Representations and Warranties of Purchaser to Seller. Purchaser hereby
represents and warrants to and covenants with Seller as set forth below in this
Section 4.1.
4.1.1 Authority. Purchaser is duly organized, validly existing and in good
standing under the laws of the State of Maryland, is duly qualified and in good
standing as a foreign corporation in the State of California, and has the power
and authority to own all of its properties and assets and to carry on its
business as presently conducted. On or before the Closing Date, the execution,
delivery and performance of this Agreement and all other agreements contemplated
hereby will have been duly and validly authorized by all necessary action of
Purchaser and this Agreement and all other agreements contemplated hereby will
be valid and binding obligations of Purchaser, enforceable against Purchaser 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. Purchaser is a "real estate investment trust" as defined
in Section 856 of the Code.
4.1.2 Status of Charter Documents. The Charter Documents are in full force and
effect, a true, complete and correct copy thereof has been delivered to Seller,
and there are no dissolution, termination or liquidation proceedings pending or
contemplated with respect to Purchaser.
4.1.3 No Litigation or Adverse Events. There are no pending or threatened
investigations, actions, suits, proceedings or claims against or affecting
Purchaser, 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 which, if determined adversely, would have a material
adverse impact on the financial condition of Purchaser or the transactions
contemplated hereby and, to Purchaser's knowledge, no material investigation,
action, suit, proceeding or claim is threatened against or affecting Purchaser
or the transactions contemplated hereby, 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.
4.1.4 No Default. Neither Purchaser nor, to the best of its knowledge, any
other party is in default under any agreement to which Purchaser is a party, and
no event exists which with the passage of time or the giving of notice or both
will become a default thereunder on the part of Purchaser nor, to the best of
its knowledge, any other party thereto which would have a material adverse
impact on the financial condition of Purchaser.
4.1.5 No Conflict. The execution, delivery and performance by Purchaser of its
obligations under this Agreement and all other agreements contemplated hereby
will not contravene any provision of applicable law, the Charter Documents, any
statute, law, rule or regulation, or any judgment, order or decree of any
Governmental Authority or court having jurisdiction over Purchaser, and no
consent, approval, authorization or order of or qualification with any
Governmental Authority is required for the performance by Purchaser of its
obligations under this Agreement or any other agreement contemplated hereby.
4.2 Representations and Warranties of Seller. Seller hereby represents and
warrants to and covenants with Purchaser as set forth below in this Section 4.2.
As used herein and elsewhere in this Agreement, the term "Seller's actual
knowledge" shall mean the actual knowledge of each of Messrs. Xxxxxxx Xxxxxx and
Xxxxxx Xxxxxxx after a review of Seller's written files with respect to the
Property. Seller hereby represents and warrants that the foregoing persons are
the persons employed by Seller with executive, managerial or supervisory
responsibility with respect to the Property. Notwithstanding anything to the
contrary provided in this Agreement, in the event Purchaser shall have actual
knowledge as of the time of Closing that any of Seller's representations or
warranties set forth in this Agreement are false or misleading, but shall elect
to proceed to close this transaction notwithstanding such false or misleading
representation or warranty, Purchaser shall be deemed to have waived any claim
it may have against Seller with respect to such misrepresentation or breach of
warranty unless such misrepresentation or breach of warranty was intentional.
4.2.1 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 Connecticut, 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.
4.2.2 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 listed on Schedule 4.2.2, matters of
record, matters disclosed by the Survey and the Permitted Exceptions.
4.2.3 The Leases. A list of the current Leases is set forth in the rent roll
attached hereto as Schedule 4.2.3 (the "Rent Roll"). The Rent Roll is true,
complete and correct in all respects and 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, Seller has received no
written notice of a default by Seller under the Lease and except as indicated on
the Rent Roll and to Seller's actual knowledge, there exists no default 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.
4.2.4 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, the Property, any tenant, or any adjacent 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.
4.2.5 Compliance with Laws. To Seller's actual 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.
4.2.6 No Defaults in Other Agreements. To Seller's actual knowledge, neither
Seller nor any other party 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 actual 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.
4.2.7 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.
4.2.8 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.
4.2.9 Taxes and Assessments. To Seller's actual knowledge, 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 existing or proposed assessment that has
or may become a lien on the Property.
4.2.10 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, except as
otherwise disclosed in the Environmental Report, 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, except as otherwise disclosed in the Environmental
Report, no Hazardous Materials have migrated from the Property upon or beneath
other properties; and (v) to Seller's actual knowledge, except as otherwise
disclosed in the Environmental Report, no Hazardous Materials have migrated or
threaten to migrate from other properties upon, about or beneath the Property.
4.2.11 Physical Condition. To Seller's actual knowledge: (i) there are no
material structural defects in the Improvements located on or at the Property;
and (ii) the Improvements and Personal Property (including without limitation
plumbing equipment, HVAC, electric wiring and fixtures, gas distribution system,
water and sewage systems, and security systems) are in good working order and
condition, except for defects or required repairs that are not material.
4.2.12 Employees. Seller has no employees.
4.2.13 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
Seller or its manager.
4.2.14 Operating Statements. The financial statements delivered by Seller to
Purchaser 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.
4.2.15 Disclosure. 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 actual 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.
4.2.16 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.
4.3 Limitations Period.
4.3.1 Written Claim Requirements. Notwithstanding the foregoing, any claim
regarding any breach of any representation or warranty must be asserted in
writing with reasonable specificity by the Indemnified Party (as hereinafter
defined), stating in reasonable detail the nature of the claim:
(i) except as specifically provided in Section 4.3.1(iii), within one (1)
year after the Closing in the case of a claim based upon a breach of the
representations, warranties or covenants of Seller contained in this Agreement,
or in an certificate document or instrument delivered by any Seller pursuant to
this Agreement;
(ii) except as specifically provided in Section 4.3.1(iii), within one (1)
year after the Closing in the case of a claim based upon a breach of any
representation, warranty or covenant of Purchaser contained in this Agreement,
or in any certificate, document or instrument delivered by them pursuant to this
Agreement; and
(iii) until the expiration of the applicable statute of limitations in the
case of a claim based upon a breach of the representation, warranty or covenant
of (a) Seller set forth in Sections 4.2.1, 4.2.2 or 4.2.10, or (b) Purchaser set
forth in Section 4.1.1 of this Agreement.
4.3.2 Survival if Written Claim Submitted in Timely Manner. If so asserted in
writing prior to the applicable expiration date, such claims for indemnification
shall survive until resolved by mutual agreement between the Indemnifying Party
and the Indemnified Party (as hereinafter defined) or by judicial determination.
Any claim for indemnification not so asserted in writing prior to the applicable
expiration date shall not thereafter be asserted and shall forever be waived;
provided, however, that the foregoing shall in no way restrict claims based upon
fraud. Each party who may call upon or obligate another party to make an
indemnity payment hereunder is referred to as an "Indemnified Party." Each
party who may be called upon or obligated to make an indemnity payment hereunder
is referred to as an "Indemnifying Party." All amounts paid by an Indemnifying
Party to an Indemnified Party hereunder shall be paid solely in cash.
SECTION 5
Title Review and Due Diligence
5.1 Title Review. As soon as practicable following the execution of this
Agreement but in no event later than fifteen (15) days after the date of this
Agreement, Seller shall provide Purchaser with a current ALTA survey of the
Property, certified to Purchaser and the Title Company in a form reasonably
required by Buyer (the "Survey"). As soon as practicable following the
execution of this Agreement but in no event later than ten (10) days after the
date of this Agreement, Seller shall cause the Title Company to provide to
Purchaser a current preliminary title report with respect to the Property (the
"PTR"). Purchaser shall have until the date that is thirty (30) business days
after the date hereof (the "Review Period") to examine the PTR and the Survey.
Purchaser shall give a written notice to Seller (the "Title Notice") before the
end of the Review Period, either stating that Purchaser has approved the matters
disclosed in the PTR and Survey or identifying those matters in the PTR and/or
Survey which Purchaser finds objectionable (the "Objectionable Matters"). If
Purchaser fails to give a timely Title Notice, it shall be deemed to have given
a Title Notice on the last day of the Review Period stating that all matters set
forth in the PTR and Survey are Permitted Exceptions. Seller may elect to
attempt to cure or remove any Objectionable Matter by giving Purchaser notice of
such election within ten (10) days following the Title Notice, but shall be
under no obligation to do so (except with respect to liens securing the
obligation to repay borrowed money). If Seller delivers a notice electing to
cure or remove each Objectionable Matter on or before the tenth (10th) day
following the Title Notice (whether or not Seller shall have made a timely
election to attempt to cure), then Seller shall be deemed to have covenanted to
Purchaser to remove each Objectionable Matter on or prior to the Closing Date.
If Seller fails to deliver a notice electing to cure or remove each
Objectionable Matter on or before the tenth (10th) day following the Title
Notice, then Seller shall be deemed to have elected to refuse to cure such
Objectionable Matters. In the event Seller elects not to cure such
Objectionable Matters, or elects to cure such Objectionable Matters and fails or
refuses to cure said Objectionable Matters, Purchaser shall have the option,
which must be exercised within ten (10) days of the earlier to occur of (i)
Purchaser's receipt of Seller's response or deemed response, or (ii) Closing,
(a) to waive Purchaser's objections and purchase the Property as otherwise
contemplated in this Agreement, notwithstanding such Objectionable Matters, in
which event the Objectionable Matters shall be deemed to be Permitted
Exceptions; provided, however, that Seller shall remain obligated to remove all
monetary encumbrances (other than liens securing the obligation to repay
borrowed money) affecting the Property or any portion thereof prior to Closing,
and Seller agrees that no monetary encumbrances (other than liens securing the
obligation to repay borrowed money) shall be deemed to be Permitted Exceptions,
or (b) to terminate this Agreement by written notice to Seller and Escrow
Company, whereupon any and all rights and obligations of Purchaser and Seller
hereunder shall terminate (other than any such obligations which, by their
express terms, survive any termination of this Agreement) and within five (5)
days after Purchaser has provided notice to Escrow Company, Escrow Company shall
deliver to Purchaser the Deposits, together with interest thereon.
5.2 Due Diligence Review. Purchaser shall have the right until the conclusion
of the Review Period to complete a customary due diligence review of the
Property, at the sole cost and expense of Purchaser. Seller shall permit access
to the Property by Purchaser and its agents, and shall afford them the
opportunity to inspect and perform any reasonable and non-intrusive tests upon
the Property that Purchaser deems necessary or appropriate to determine whether
the Property is suitable for Purchaser's purposes; provided that Purchaser shall
not unreasonably interfere with Seller's or any tenant's use of the Property.
Purchaser shall not disturb or disrupt the business activities of Seller at the
Property or of the tenants of the Property. Inspections of the Property shall
be conducted only with the prior consent of Seller's property manager (which
consent Seller shall not be unreasonably withheld or delayed), and only after
Purchaser has provided Seller with evidence reasonably acceptable to Seller of
the availability of adequate public liability insurance with respect to losses
or damages arising out of such inspection. Prior to commencing any tests or
investigations which contemplate the drilling or disturbance of the surface of
the Property or any improvements thereto, Purchaser shall submit to Seller its
operational plans for conducting such inspections and tests, which plans shall
be subject to Seller's prior written approval, which approval shall not be
unreasonably withheld. Purchaser shall pay for, restore or otherwise
appropriately remedy, and shall indemnify, defend and hold Seller harmless from
and against all damages to the Property and any and all claims, losses, liens,
charges, liabilities and expenses arising as a result of any property damage or
injury to individuals caused by the actions of Purchaser or its agents in
connection with any due diligence, inspection or testing performed by them.
Purchaser's due diligence shall include, without limitation, a detailed
inspection and evaluation of (a) the physical condition of the Property
(including, without limitation, HVAC, plumbing, electrical and similar systems),
(b) all other matters concerning the Property (including, without limitation,
zoning, building permits, certificates of occupancy, business licenses and all
other notices, licenses, permits, certificates and governmental approvals),
(c) the books and records of the Property (including, without limitation,
financial operating data) and (d) the environmental condition of the Property.
In the event Purchaser, after conducting in good faith such inspections,
investigations, and tests, determines in its sole discretion that the Property
or any part thereof is not suitable for its purposes, then, at any time on or
prior to expiration of the Review Period, Purchaser may terminate this Agreement
upon written notice to Seller. If Purchaser has not made an affirmative written
election prior to the expiration of the Review Period to terminate this
Agreement, Purchaser shall be deemed to have elected as of the last day of the
Review Period to waive any right to object to matters disclosed by Purchaser's
due diligence review and to terminate this Agreement due to Purchaser's
disapproval thereof. The provisions of this Section 5.2 shall survive the
Closing or a termination of this Agreement for any reason, for a period of one
(1) year.
5.3 Deliveries. On or prior to the date that is five (5) days after the date
hereof, Seller shall provide to Purchaser or its agents, to the extent that such
items are in the possession of, or are reasonably available to, Seller or its
agents, true, complete and correct copies of the following documents with
respect to the Property: (i) all as-built plans and specifications; (ii)
current rent rolls setting forth at least the following information:
(A) tenant's name; (B) space occupied (square feet); (C) commencement date of
Lease; (D) expiration date of Lease; (E) options, if any; (F) actual collections
and scheduled rent; (G) rental concessions (existing or future); (H) security
deposits; and (I) historical percentage rents; (iii) copies of all certificates
of occupancy and all other Licenses and Entitlements; (iv) a list of personnel
working at the Property, their positions and salaries; (v) a list of all capital
improvements completed at the Property over the past 24 months; (vi) copies of
all monthly operating statements for the Property for 1994, 1995 and 1996,
certified as accurate by the managing general partner of Seller, setting forth
all income and expenses; (vii) copies of all utility bills for the past 12
months and the most current tax xxxx; (viii) a copy of the standard lease
agreement used by all tenants; (ix) copies of all Contracts; (x) copies of all
environmental studies and work product, marketing studies, engineering studies,
appraisals and other studies with respect to the Property; and (xi) all
insurance policies maintained with respect to the Property for the last three
years.
SECTION 6
Covenants of Seller and Purchaser
(A) From and after the date of this Agreement, until the earlier of the
termination of this Agreement or the Closing (provided that nothing in this
sentence shall diminish the survivability of the covenants set forth in this
Section 6), Seller agrees with Purchaser as follows:
6.1 Covenants. Seller shall conduct the business of the Property in the
ordinary course, consistent with past practice, shall make all repairs,
replacements and improvements in the ordinary course and shall not without
Purchaser's prior written consent, which consent shall not be unreasonably
withheld, delayed or conditioned, and except in the ordinary course of business,
amend, modify or terminate any material agreements or other material instruments
relating to the Property which agreements or instruments will remain an
obligation with respect to the Property on or after Closing.
6.2 Consents. Seller shall use its best efforts to obtain any approvals,
waivers or other consents of third parties which are to be obtained by Seller
and are required to consummate the transactions contemplated by this Agreement,
and shall cooperate with Purchaser in obtaining any approvals, waivers or other
consents of third parties required to consummate the transactions contemplated
by this Agreement.
6.3 Liens. Seller shall keep the Land and the Improvements free and clear of
all liens, claims or demands, including, but not limited to, mechanics' liens,
in connection with work performed and materials provided before the Closing, and
if any such lien is filed or levied, Seller secure its release on or prior to
Closing. Seller shall not cause or to allow any encumbrance, lien, deed of
trust or similar financial lien to be placed against the Property, whether or
not recorded, without the prior written consent of Purchaser.
6.4 Leases. Without Purchaser's prior written consent, Seller shall not enter
into any Lease with respect to the Property or modify, terminate or extend any
existing Lease with respect to the Property.
6.5 Insurance. Seller shall maintain all insurance with respect to the Property
in effect on the date hereof.
6.6 New Contracts. Without Purchaser's prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned, Seller shall not
become a party to any new Contracts that will remain an obligation with respect
to the Property on or after the Closing unless such Contracts are entered into
in the ordinary course of business consistent with Seller's past practice, are
with unaffiliated third parties and are terminable on not more than thirty (30)
days notice without the payment of any termination fee, premium or penalty.
6.7 Cooperation. Sellers shall cooperate fully with Purchaser's inspections and
investigations of the Property, which cooperation shall include making available
at all reasonable times to authorized representatives of Purchaser for
inspection and copying (at Purchaser's expense) any and all files, documents,
correspondence, books, records and other written materials in any way relating
to the Property. Seller shall respond promptly to any inquiry which Purchaser
may make from time to time with respect to the information contained in such
materials, and shall instruct its agents, employees and representatives to give
specific answers to Purchaser's inquiries from time to time relating to the
condition and operation of the Property. Seller shall continue to cooperate
with Purchaser following the Closing with respect to any inquiries made by
Purchaser regarding the Property or Seller including, without limitation,
assisting with the completion of the Audit (as defined in Section 7.8 below).
(B) Survival. The foregoing covenants set forth in this Section 6 shall
survive the Closing for one (1) year, unless prior to such date Purchaser has
given notice to Seller of a breach of any covenant of Seller together with a
reasonably detailed explanation of the alleged breach, in which case the
covenant so identified shall survive without limitation.
SECTION 7
Conditions to Purchaser's Obligation to Close
The obligation of Purchaser to close hereunder shall be subject to the timely
satisfaction of the following conditions unless waived by Purchaser in its sole
and absolute discretion:
7.1 Representations and Warranties True at Closing. The representations and
warranties made by Seller in this Agreement shall be true in all material
respects as of the Closing with the same effect as though such representations
and warranties had been made or given at the Closing.
7.2 Compliance with Agreement. Seller shall have performed and complied in all
respects with its obligations under this Agreement which are to be performed or
complied with by them prior to or at the Closing.
7.3 Title Policy. Purchaser shall have received from the Title Company an
unconditional commitment to issue to Purchaser, an owner's title policy on
standard ALTA Form B (1970) (or equivalent), in form and substance acceptable to
Purchaser with respect to the Property, subject only to the Permitted Exceptions
("Title Policy"). The Title Policy shall include extended coverage and such
endorsements, in form and substance satisfactory to Purchaser, as Purchaser
shall reasonably require. Seller shall deliver to the Title Company such
documents as are reasonable and customary in similar transactions in the
vicinity of the Property, and shall perform such other acts, as the Title
Company shall reasonably require in order to issue the Title Policy.
7.4 Approval of Board of Directors. Purchaser shall have obtained the approval
of the terms of this Agreement by the Board of Directors ("Board") of Purchaser.
Notwithstanding anything in this Agreement to the contrary, should Purchaser
fail to notify Seller of final Board approval on or prior to the expiration of
the Review Period, this Agreement shall terminate and neither Purchaser nor
Seller shall have any further obligation to each other and the Deposits and all
accrued interest thereon shall be returned to Purchaser.
7.5 No Condemnation. Subject to Section 13.1, there shall be no pending or
threatened condemnation or taking of any part of the Real Property or any means
of ingress or egress thereto (other than a minor street widening, or other
immaterial taking, which, in Purchaser's reasonable judgment, does not
materially adversely affect the Real Property) or any parking therefor.
7.6 Consents Received. Purchaser shall have received all required material
third party consents and approvals, including all lender consents and all
required Governmental Approvals, including the approval of any state authorities
in respect of any sale of securities of Purchaser.
7.7 No Change in Law. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that (i) prohibits the
consummation of the transactions contemplated hereby or (ii) has a material
adverse impact on the Property or the income therefrom, including without
limitation the level of occupancy of the Property, and no litigation or
governmental proceeding seeking such an order shall be pending or threatened.
7.8 Financial Audit. During the period commencing with the execution and
delivery of this Agreement and extending through the Closing Date, Purchaser
may, in its sole and absolute discretion, cause its independent accounting firm
or another accounting firm selected by Purchaser ("Auditor") to perform an audit
of the revenue and operating expenses of the Property for the year ending
December 31, 1996, and the period from January 1, 1997 through the Closing Date
(the "Audit") at Purchaser's sole cost and expense. In connection with the
Audit, Seller shall sign a management representation agreement in customary form
which shall be acceptable in substance to Auditor. Notwithstanding anything
herein to the contrary, Purchaser's acceptance of the results of the Audit shall
not be a condition to Closing after the conclusion of the Review Period, but
Seller's continued cooperation with the completion of the Audit shall be a
condition to Closing through the Closing Date.
7.9 Bankruptcy and Related Matters. At no time on or before the Closing Date
shall any of the following have been done by, against or with respect to Seller
or any general partner therein: (i) the commencement of a case under Title 11 of
the U.S. Bankruptcy Code, as now constituted or hereafter amended, or under any
applicable Federal or state bankruptcy law or similar law; (ii) the appointment
of a trustee or receiver of any property interest; (iii) an assignment for the
benefit of creditors; (iv) an attachment, execution or other judicial seizure of
a substantial property interest; (v) the taking of, failure to take, or
submission to any action indicating an inability to meet its financial
obligations as they accrue; or (vi) a dissolution or liquidation.
7.10 No Prior Termination. This Agreement shall not have previously been
terminated by Seller or Purchaser pursuant to Section 5 hereof or Section 13
hereof.
7.11 Condition of the Property. The physical condition of the Property shall be
in the same condition as on the date of expiration of the Review Period,
ordinary wear and tear excepted. There shall not have occurred between the date
hereof and the Closing Date any material adverse change in the Property
including, without limitation, the level of occupancy of the Property or any
material adverse change in the condition of any tenant under any lease of the
Property. All building permits, certificates of occupancy, business licenses
and all other licenses, permits, certificates and authority required as of the
Closing Date in connection with the construction, use or occupancy of the
Property shall be in full force and effect and in good standing.
7.12 Estoppels. Purchaser shall have received written estoppel statements, in
the form attached hereto as Exhibit G and otherwise in form and substance
acceptable to Purchaser from each tenant or subtenant under a Lease of the
Property demising 7,500 rentable square feet or more of the Property. In
addition, Purchaser shall have received written estoppel statements, in the form
attached hereto as Exhibit G and otherwise in form and substance acceptable to
Purchaser, from 85% of the tenants or subtenants under Leases of the Property
demising less than 7,500 rentable square feet of the Property, or from Seller.
7.13 Existing Loan. Purchaser shall have received and approved the Existing
Loan Documents, the Existing Loan Estoppel and the Assumption Agreement.
7.14 Further Assurances. Seller, at the request of Purchaser, shall have
furnished, executed, and delivered such documents, instruments, certificates,
notices, or other further assurances as Purchaser shall reasonably request as
necessary to effect complete consummation of this Agreement and the transactions
contemplated by this Agreement.
SECTION 8
Conditions to Seller's Obligation to Close
The obligation of Seller to close hereunder shall be subject to satisfaction of
the following conditions in favor of Seller unless waived by Seller:
8.1 Representations and Warranties True at Closing. The representations and
warranties made by Purchaser in this Agreement shall be true in all material
respects as of the Closing with the same effect as though such representations
and warranties had been made or given at the Closing.
8.2 Compliance with Agreement. Purchaser shall have erformed and complied in
all respects with all of its obligations under this Agreement which are to be
performed or complied with prior to or at the Closing.
8.3 No Change in Law. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that prohibits the
consummation of the transactions contemplated hereby (or results in any material
change in the treatment of such transactions for Federal tax purposes), and no
litigation or governmental proceeding seeking such an order shall be pending or
threatened.
8.4 Bankruptcy and Related Matters. At no time on or before the Closing Date
shall any of the following have been done by, against or with respect to
Purchaser: (i) the commencement of a case under Title 11 of the U.S. Bankruptcy
Code, as now constituted or hereafter amended, or under any applicable Federal
or state bankruptcy law or similar law; (ii) the appointment of a trustee or
receiver of any property interest; (iii) an assignment for the benefit of
creditors; (iv) an attachment, execution or other judicial seizure of a
substantial property interest; (v) the taking of, failure to take, or submission
to any action indicating an inability to meet its financial obligations as they
accrue; or (vi) a dissolution or liquidation.
8.5 No Prior Termination. This Agreement shall not have previously been
terminated by Purchaser pursuant to Section 5 hereof or Section 13 hereof.
8.6 Existing Loan. The Existing Lender shall have consented to the transfer of
the Property to, and the assumption of the Existing Loan by, Purchaser, as
contemplated by this Agreement.
8.7 Partner Consent. Seller shall have received the approval of the sale of the
Property in accordance with the terms of this Agreement by its partners as
required by and pursuant to the terms of the agreement of limited partnership of
Seller.
8.8 Further Assurances. Purchaser, at the request of Seller, shall have
furnished, executed, and delivered such documents, instruments, certificates,
notices, or other further assurances as Seller shall reasonably request as
necessary to effect complete consummation of this Agreement and the transactions
contemplated by this Agreement.
SECTION 9
Closing
9.1 Time and Place. The Closing shall take place at the offices of Escrow
Company on the date which is thirty (30) days following after the conclusion of
the Review Period or on such earlier date as may be specified by Purchaser upon
at least five (5) business days, prior written notice to Seller, but in no event
later than the Outside Closing Date.
9.2 Xxxxxxx Money Deposits.
9.2.1 Within five (5) days after the execution and delivery of this
Agreement, Purchaser shall deposit in the Title Escrow an xxxxxxx money deposit
in the amount of $100,000 (the "Xxxxxxx Money Deposit"). Such deposit shall be
deposited in a bank or a money market fund approved by Purchaser in writing and
shall only be forfeitable, non-refundable and released to Seller in the event
Seller performs its obligations under this Agreement and Purchaser fails to do
so. Until such time as the Xxxxxxx Money Deposit is returned to Purchaser or
paid to Seller, any interest earned thereon will be for the benefit of
Purchaser.
9.2.2 At the conclusion of the Review Period, provided this Agreement has
not been terminated pursuant to the terms hereof, Purchaser shall deposit in the
Title Escrow a second xxxxxxx money deposit of $100,000 (the "Additional Xxxxxxx
Money Deposit"). Such deposit shall be deposited in a bank or a money market
fund approved by Purchaser in writing and shall only be forfeitable, non-
refundable and released to Seller in the event Seller performs its obligations
under this Agreement and Purchaser fails to do so. Until such time as the
Additional Xxxxxxx Money Deposit is returned to Purchaser or paid to Seller, any
interest thereon will be for the benefit of Purchaser.
9.3 Deposits in Escrow Prior to Closing. Within three (3) business days before
the Closing: (i) Seller shall deposit in the Title Escrow all documents or
instruments to be delivered by or on behalf of Seller at Closing pursuant to
Section 9.4 hereof, together with mutually agreeable, executed irrevocable
escrow instructions (not inconsistent with the terms of this Agreement) as may
be necessary or appropriate to consummate the transactions contemplated by this
Agreement (the "Irrevocable Instructions"); and (ii) Purchaser shall deposit in
the Title Escrow the instruments and documents required by Section 9.6 hereof
(other than the Purchase Price), together with the Irrevocable Instructions
executed by Purchaser.
9.4 Seller's Deliveries to the Title Escrow. Pursuant to the terms hereof,
Seller shall deposit or shall cause to be deposited in the Title Escrow the
following deeds, instruments and documents, in the form attached hereto (or if
no such form is attached hereto, in form and substance reasonably acceptable to
Purchaser):
9.4.1 The Deed, duly executed by Seller in recordable form.
9.4.2 The Assignment of Contracts, duly executed by Seller.
9.4.3 The Assignment of Leases, duly executed by Seller in recordable form.
9.4.4 The Xxxx of Sale, duly executed by Seller.
9.4.5 Such sums, if any, as may be required, to pay Seller's share of costs
adjustments as described in Section 10.
9.4.6 The written representations and warranties required by Section 6.2
hereof.
9.4.7 The FIRPTA Affidavit.
9.4.8 The Assumption Agreement, duly executed in recordable form by Seller
and Existing Lender.
9.4.9 The Existing Loan Estoppel, duly executed by Existing Lender.
9.4.10 An amount equal to the Security Deposits.
Escrow Company hereby is authorized to use the foregoing documents,
instruments and funds to close the Title Escrow only in compliance with the
Irrevocable Instructions and otherwise only if and when Escrow Company holds for
the account of all Seller the Purchase Price for Seller and all documents to be
delivered by Purchaser through the Title Escrow pursuant to Section 9.6 hereof
and Escrow Company has not received any notice delivered pursuant to Section 9.7
hereof.
9.5 Seller's Deliveries Outside the Title Escrow. At the Closing, Seller shall
deliver or shall cause to be delivered the following, to the extent within the
Seller's or its manager's possession or control, to Purchaser or its designee
outside of the Title Escrow:
9.5.1 Complete originals of the Leases with respect to the Property.
9.5.2 The originals, or if such originals are not in the possession of
Seller, true complete and correct legible copies, of all Contracts and all
Licenses and Entitlements with respect to the Property.
9.5.3 The originals of all records, books of account, ledgers, banking
records, statements and other business records relating to the ownership and
operation of the Property, in whatever mode maintained, including information
contained on computer disks.
9.5.4 A complete set of keys to the Property, appropriately tagged for
identification.
9.5.5 Any other documents, instruments or agreements and items which
Purchaser may reasonably request to carry out the intent of this Agreement.
9.6 Purchaser's Deliveries to the Title Escrow. Pursuant to the terms hereof,
Purchaser shall deposit, one (1) business day prior to Closing, in the Title
Escrow (i) the Purchase Price, (ii) the Assignment of Contracts, duly executed
by Purchaser, (iii) the Assignment of Leases, duly executed by Purchaser in
recordable form, and (iv) the Assumption Agreement, duly executed by Purchaser
in recordable form. Not later than one (1) business day prior to the Closing,
Purchaser shall deliver to the Title Escrow such sums, if any, as may be
necessary to pay Purchaser's share of any of the closing adjustments described
in Section 10. Escrow Company hereby is authorized to use said funds,
instruments and documents to close the Title Escrow only if and when:
(i) Escrow Company holds for Purchaser the items required by Section 9.4 hereof
from Seller, (ii) Title Company has made an unconditional commitment to issue
the Title Policy and (iii) Escrow Company has not received any notice delivered
pursuant to Section 9.7 hereof.
9.7 Close of Escrow. Provided that Escrow Company shall have notified Purchaser
and Seller of its intention to proceed with the Closing and thereafter the
Escrow Company shall have received no written notice from Purchaser or Seller
prior to the Closing of the failure of any condition to the Closing running in
favor of Purchaser or Seller, as the case may be, or of the termination of the
Title Escrow, the Escrow Company shall proceed with the Closing if and when
Purchaser and Seller have deposited into the Title Escrow the items required by
this Agreement and Title Company has made an unconditional commitment to issue
the Title Policy and Escrow Company can and will comply with the Irrevocable
Instructions. Upon the Closing, Escrow Company shall date, as of the Closing,
all undated documents deposited in the Title Escrow and shall:
(a) On behalf of Seller, deliver to Purchaser: (i) the Deed, the
Assignment of Leases and the Assumption Agreement by causing the Deed, the
Assignment of Leases and the Assumption Agreement to be recorded in the Official
Records (and Escrow Company shall cause such Deed, Assignment of Leases and the
Assumption Agreement to be mailed to Purchaser after it has been recorded, and
immediately upon recording, deliver to Purchaser a conformed copy thereof), and
(ii) a fully executed original of each of the items set forth in Section 9.4
hereof (other than the Deed, the Assignment of Leases and the Assumption
Agreement).
(b) On behalf of Purchaser, deliver to Seller the Purchase Price and a
fully executed copy of the Assignment of Leases, the Assumption Agreement and
the Assignment of Contracts.
9.8 Post-Closing Covenants.
(a) After the Closing, each party, at the request of the other party, shall
furnish, execute, and deliver such documents, instruments, certificates,
notices, or other further assurances as such requesting party shall reasonably
request as necessary to effect complete consummation of this Agreement.
(b) Purchaser and Seller shall promptly pay to the party entitled thereto
any sums due as a result of any adjustments to prorations as set forth in
Section 10.2 and Section 10.3 hereof.
SECTION 10
Closing Adjustments and Related Items
10.1 Closing Costs. Unless otherwise specifically provided in this Agreement,
all costs and expenses of the parties in connection with the transactions
contemplated hereby, including, without limitation, all reasonable fees and
expenses of the respective counsel to the parties, shall be borne by the parties
incurring such expenses.
10.2 Prorations. At Closing, the parties shall prorate (with Purchaser 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) day month, the
following with respect to the Property:
(a) Rents. All rents and other receipts collected by Seller 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, such delinquent
rentals shall be pro-rated between Purchaser and Seller at the time they
are actually collected. Purchaser 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 Purchaser reasonably
promptly after receipt thereof by Purchaser, 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
Purchaser. In the event that such reconciliation shows that Seller has
collected less than its incurred reimbursable expenses under the Leases,
Purchaser shall remit the excess (to the extent, and only to the extent, that
such excess is actually collected by Purchaser, with all payments on arrearages
to be applied first to the period after the Closing Date) 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. Regardless of whether 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 xxxx has not been issued as of
the date of Closing the regular and supplemental tax xxxx for the calendar
year preceding that in which the Closing occurs, with such increase thereto
as Purchaser 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. Conveyance taxes due and payable to the State of Connecticut and the
towns of Farmington and New Britain with respect to the transfer of the
Property, in any, in an aggregate amount not to exceed 1.11% of the
aggregate Purchase Price shall be paid by Purchaser; and any conveyance
taxes in excess of such amount shall be paid one-half by Purchaser and one-
half by Seller.
(d) Utilities. Regardless of whether 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 shall 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 Purchaser
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. Seller shall be credited for the
amount of any deposits made by Seller for utility services which have not
been refunded to Seller and which are assigned to Purchaser on or prior to
the Closing Date.
(e) Service Contracts. Amounts payable under contracts being assigned
shall be prorated on an accrual basis. 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 Purchaser
shall be credited, and Seller shall be debited, with an amount equal to all
amounts accrued under such contracts from the date such bills were issued
or such payments were due until the Closing Date. Seller shall deliver to
Escrow Company, for the benefit of Purchaser, evidence of the cancellation
or termination of all contracts other than approved contracts, and Seller
shall be responsible for all such cancellation costs.
(f) Improvement Lien Assessments. All improvement lien assessments
shall be paid in full by Seller at Closing.
(g) Existing Loan. Accrued and unpaid interest under the Existing
Loan shall be prorated as of the Closing Date and Purchaser shall be
credited, and Seller shall be debited, with an amount equal to interest
accrued and unpaid as of the Closing Date. Any and all amounts deposited
or to be deposited into any escrow accounts maintained by the Existing
Lender or otherwise in connection with the Existing Loan shall be prorated
as of the Closing Date. Seller shall pay, prior to the Closing Date, all
amounts due and payable as of the Closing Date with respect to any such
escrows. All amounts deposited in any such escrow as of the Closing shall
be credited to Seller, unless such escrows are terminated in connection
with Purchaser's assumption of the Existing Leases and any such amounts
deposited therein are refunded to Seller by the Existing Lender.
(h) Other Items. All other proratable items, including without
limitation licenses and permits and other income from, and expenses
associated with, the Property shall be prorated between Purchaser and
Seller as of the Closing.
10.3 Title and Escrow Costs. Seller shall pay the title insurance costs of
issuing to Purchaser a standard form owner's policy of title insurance in the
amount of the Purchase Price. Purchaser shall pay the title insurance costs of
an extended coverage policy and any endorsements requested by Purchaser. Seller
shall pay any documentary transfer tax due as a result of the recordation of the
Deed. Escrow fees and costs and recording fees shall be divided equally between
Seller and Purchaser. Seller shall pay the cost of the updated Survey, which is
estimated to be $3,600.00; provided, however, if the purchase and sale
transaction contemplated by this Agreement does not close other than as a result
of a breach of this Agreement by Seller, Purchaser shall pay the cost of the
Survey, and if the purchase and sale transaction does not close as a result of a
breach of this Agreement by Seller, the cost of the Survey shall be paid Seller.
Any apportionments and prorations which are not expressly provided for in this
Section 10 shall be prorated in accordance with the customary practice in the
jurisdiction in which the Land is located.
10.4 Assumption Fee. Seller shall pay any assumption fees or costs of the
Existing Lender incurred in connection with the Assumption Agreement or
otherwise as a result of Purchaser's assumption of the Existing Loan as
contemplated by this Agreement.
10.5 Calculations for Closing. Seller and Purchaser shall provide Title Company
with a preliminary calculation for prorations no later than five (5) business
days prior to Closing with a final calculation no later than one (1) business
day prior to Closing. The final calculation shall be executed by each party and
may be relied upon by Title Company in completing the closing adjustments and
prorations. In the event incomplete information is available, or estimates have
been utilized to calculate prorations as of the date of Closing, any prorations
relating thereto shall be further adjusted and completed outside of Escrow
within ninety (90) days after the Closing Date or as and when complete
information becomes available to Purchaser and Seller. Any adjustments to
initial estimated prorations which are required upon review of such complete
information shall be made by Purchaser and Seller, with due diligence and
cooperation, by prompt cash payment to the party entitled to a credit as a
result of such adjustments. The foregoing obligations of Seller and Purchaser
shall survive the Closing without limitation.
SECTION 11
Failure Of Seller To Perform; Termination; No Waiver
11.1 Purchaser's Remedies. If Seller shall default in the performance of its
obligations under this Agreement to Purchaser, then Purchaser shall have the
right to institute an action for specific performance to enforce Seller's
obligations under this Agreement to convey title to the Property to Purchaser
and for incidental damages; provided that if, but only if, specific performance
is not an available remedy, Purchaser shall have the right to institute an
action against Seller for all damages actually suffered by Purchaser, including
without limitation, the loss of its bargain.
11.2 Seller's Remedies. In the event the Closing does not occur by the Outside
Closing Date for any reason due to Purchaser's or Purchaser's breach under this
Agreement, Seller's sole remedy shall be to (i) terminate this Agreement and
(ii) retain the Deposits as liquidated damages, and not as a penalty.
PURCHASER AND SELLER AGREE THAT IN THE EVENT OF A DEFAULT BY PURCHASER HEREUNDER
OR A CLAIM AGAINST PURCHASER WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY, SELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO ASCERTAIN.
THEREFORE, SELLER AND PURCHASER AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL
NET DETRIMENT THAT SELLER WOULD SUFFER IF PURCHASER DEFAULTS HEREUNDER, OR A
CLAIM IS ASSERTED AGAINST PURCHASER WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IS AND SHALL BE THE DEPOSITS, AND SELLER SHALL RETAIN THE
DEPOSITS AS ITS SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) AND SUCH
AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS
AGREEMENT BY PURCHASER AND FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY
TORT ARISING OUT OF PURCHASER'S FAILURE TO CLOSE). ALL OTHER CLAIMS TO DAMAGES
OR OTHER REMEDIES RELATING TO A BREACH HEREOF OR OTHERWISE RELATING TO OR
ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY ARE EXPRESSLY WAIVED BY
SELLER.
LC, MS JK
________________ ---------------
(Seller's initials) (Purchaser's initials)
11.3 Termination. If the Closing has not occurred on or prior to the Outside
Closing Date, any party not in default with respect to its obligations hereunder
may terminate this Agreement as it affects such party, and such terminating
party shall no longer have any obligation to any other party to this Agreement,
under this Agreement or any document or instrument executed or delivered in
connection herewith.
SECTION 12
Brokers
Seller represents and warrants to Purchaser that no broker has acted for it
in connection with this Agreement or the transactions contemplated by this
Agreement except Colonial Properties, Incorporated ("Colonial") and Harbour
Realty Advisors, Inc. ("Harbour"). The commission payable to Harbour by Seller
shall be the sole responsibility of Seller and shall be paid pursuant to a
separate agreement between Seller and Harbour. The commission payable to
Colonial by Seller shall be the sole responsibility of Seller and shall be paid
pursuant to a separate agreement between Seller and Colonial. Seller will
indemnify, defend, protect and hold Purchaser harmless from any claim by any
broker, agent or finder purporting to have acted on behalf of Seller. Purchaser
represents and warrants to Seller that no broker has acted for it in connection
with this Agreement or the transactions contemplated by this Agreement except
Colonial, pursuant to a separate agreement between Colonial and Purchaser. The
commission payable to Colonial by Purchaser shall be the sole responsibility of
Purchaser and shall be paid pursuant to such separate agreement. Purchaser will
indemnify, defend, protect and hold Seller harmless from any claim by any
broker, agent or finder purporting to have acted on behalf of Purchaser. The
foregoing indemnifications shall survive the termination of this Agreement for
any reason, including a breach hereof.
SECTION 13
Risk of Loss
13.1 Definition of Material Damage. For the purposes of this Section 13.1,
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 ninety (90) 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 Purchaser through and after the Closing Date until the date that is
ninety (90) days beyond the estimated date of reconstruction, or (iv) if any
lessee has a right to terminate its lease as a result of such damage.
13.2 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 Purchaser's other termination rights under
this Agreement) and (ii) Seller will, at Purchaser's option, either (a) cause
the damaged portion of the Improvements to be repaired at Seller's sole cost and
expense within ninety (90) days after the date of such damage or (b) reduce the
Consideration by an amount equal to the actual, reasonable and necessary cost of
repairing or replacing the damaged portions of the Improvements in which event
Seller shall retain all insurance proceeds with respect to such damage. Seller
will notify Purchaser within five (5) days (but in any event prior to the
Closing Date) of Seller's receipt of knowledge of any casualty which occurs
after the date of this Agreement and on or prior to the Closing Date.
13.3 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 Purchaser in writing of such casualty as soon as practicable. Within ten
(10) days after the occurrence of such casualty, Seller will, as soon as is
practicable, 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 ninety (90) days thereafter), and the Outside Closing Date shall be
extended (but in no event by more than ninety (90) days) until the restoration
of such damaged Improvements is complete. If Seller does not commence or
complete such restoration within such time period, then Purchaser may elect
pursuant to a writing delivered to Seller and Escrow Holder to (i) continue this
Agreement, provided, however, that Seller shall assign to Purchaser at the
Closing any insurance proceeds to which Seller is entitled with respect to such
damage (in which event the Consideration shall be reduced by the amount of any
deductible with respect thereto); (ii) continue this Agreement, provided,
however, that Seller shall reduce the Consideration by an amount equal to the
reasonable cost of repairing or replacing the damaged portion(s) of the
Improvements reasonably estimated by Purchaser (in which event Seller shall be
entitled to retain any insurance proceeds with respect to such damage), or
(iii) terminate this Agreement, in which case neither party shall have any
further rights and obligations to the other party under this Agreement (but
Purchaser shall retain its rights and remedies against Seller) and Escrow Holder
shall immediately return the Deposits (with interest thereon) to Purchaser.
Purchaser's failure to have elected any of these options within the time
allotted therefor shall be deemed to be an election of option (iii).
13.4 Definition of Material Taking. For the purposes of this Section 13, 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 $100,000.00, (ii) the portion of the Property taken includes any access
to the Property or any portion of the parking area; (iii) Purchaser determines
that the Property so affected is materially and adversely affected by such
taking or threatened taking, (iv) any lessee has the right to xxxxx any rent
under its Lease as a result of such taking or threatened taking, or (v) any
lessee has the right to terminate its Lease as a result of such taking or
threatened taking.
13.5 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
Purchaser 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
Consideration. Seller will deliver written notice to Escrow Holder and
Purchaser within one (1) day after Seller receives notice of or otherwise
becomes aware of any taking or threatened taking affecting the Property.
13.6 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 Purchaser in writing of such taking or threatened taking, and
within ten (10) days after Purchaser's receipt of such notice, Seller and
Purchaser shall endeavor to agree upon whether the Property shall be purchased
by Purchaser, and any reduction in the Consideration, and any assignment of any
condemnation award with respect to such taking. If within such ten (10) day
period Purchaser and Seller have not reached a mutually acceptable agreement as
to those matters, Purchaser within ten (10) 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 Purchaser and Seller shall have no further rights or obligations
to one another under this Agreement, and Escrow Holder shall immediately return
the Deposits (with interest thereon) to Purchaser. Purchaser'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).
13.7 Extension of Outside Closing Date. Upon the occurrence of any damage to
the Property, the Outside Closing Date shall be extended to the date upon which
Seller is required hereunder to have such damage repaired, but in no event shall
any such extension extend the Outside Closing Date to a date which is more than
ninety (90) days after the date of such damage to the Property.
SECTION 14
MISCELLANEOUS
14.1 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 one and the same instrument.
14.2 Governing Law. This Agreement shall be governed by the internal laws of
the State of Connecticut, without regard to the choice of laws provisions
thereof.
14.3 Entire Agreement. This Agreement (including the exhibits) embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants, or undertakings other than those
expressly set forth or referred to herein. This Agreement supersedes any and
all prior agreements and understandings between the parties with respect to such
subject matter.
14.4 Amendment. This Agreement may be amended only in a writing signed by the
parties to be bound by such amendment.
14.5 Waiver. No waiver shall be effective against a party unless it is in a
writing signed by that party.
14.6 Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
14.7 Transfer to Qualified Intermediary. The parties agree that all of the
rights and obligations of Seller under this Agreement may be assigned by Seller
prior to the Closing to a "qualified intermediary" for purposes of enabling
Seller to qualify the exchange of the Property for other property as a tax-free
exchange under Section 1031 of the Internal Revenue Code; provided, however,
that such transfer shall not relieve Seller of any obligation of Seller under
this Agreement. Purchaser agrees to cooperate in connection with any proposed
exchange of the Property; provided, however, (i) the acquisition and exchange of
the Property for designated exchange property shall not impose upon Purchaser
any additional financial obligations; (ii) Purchaser shall have no obligation to
cooperate with any such exchange following the Closing Date; (iii) Seller shall
indemnify and hold Purchaser harmless from any and all liabilities, claims,
losses or actions which Purchaser incurs or to which Purchaser may be exposed as
a result of Purchaser's participation in the contemplated exchange;
(iv) Purchaser shall not be required to take title to any property other than
the Property; and (v) such exchange shall not in any way delay the Closing as
contemplated hereby.
14.8 Confidentiality. Purchaser and Seller each acknowledge and agree that this
Agreement and the terms and conditions set forth herein are to be kept
confidential. Accordingly, until the Closing Date (at which time the parties
may issue a joint press release with respect to the Closing), the parties agree
to keep the pendency of this Agreement (as well as its terms and conditions)
confidential and shall discuss the transaction only with officers, directors,
employees, agents and representatives of such party involved in consummating the
transaction. Notwithstanding the foregoing, Seller understands that Purchaser
is a public entity and Purchaser shall be permitted to disclose any matter
relating to the contemplated transaction as Purchaser may determine in
connection with fulfilling its obligations under state and Federal securities
laws. The foregoing covenants shall survive termination of this Agreement.
14.9 Time of the Essence. Time is of the essence with respect to this
Agreement. Notwithstanding the foregoing, however, whenever action must be
taken under this Agreement during a period of time that ends on a Saturday,
Sunday or Federal or state holiday, then such period shall be extended until the
next day which is not a Saturday, Sunday or such holiday.
14.10 Personal Liability. None of the partners, affiliates, officers,
directors, shareholders, employees, agents, representatives or consultants of
any of Purchaser or Seller shall have any personal liability, directly or
indirectly, under this Agreement, and each of the parties hereto hereby waives
all right to proceed directly against such persons or entities under or in
connection with this Agreement; provided, however, notwithstanding the
foregoing, the partners, affiliates, officers, directors, shareholders,
employees, agents, representatives and consultants of Seller shall be and remain
liable for any liability of Seller hereunder to the extent of any distribution
made to such person.
14.11 Attorneys' Fees. In the event of a dispute arising out of the
interpretation or enforcement of this Agreement, or a declaration of rights
hereunder, or enforcement of any judgment of any judicial or non-judicial body
with respect to the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and expenses.
14.12 Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and mailed postage prepaid by certified or
registered mail, return receipt requested, sent by personal delivery, overnight
courier or by telecopy (provided a copy of such notice also is delivered by any
of the foregoing means) to the appropriate address or telecopy number specified
below, or at such other place or telecopy number as any party may, from time to
time, designate in a written notice given to the others in the manner specified
herein. Notices or other communications shall be effective when actually
received.
Seller: Harbour Realty Advisors, Inc.
0000 Xxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxx
Fax No.: (000)000-0000
with a copy to: Xxxxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
Fax No.: (000)000-0000
and a copy to: Xxxx and Xxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn.: Xxxx X. X'Xxxxx, Esq.
Fax No.: (000)000-0000
Purchaser: The Price REIT, Inc.
000 Xxxxx Xxxxxxx Avenue
Fourth Floor
Los Angeles, California 90036
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000)000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000)000-0000
14.13 Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
14.14 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not impair the validity or enforceability of any other
provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"PURCHASER"
THE PRICE REIT, INC.,
a Maryland corporation
By: /XXXXXX XXXXXXXXXX/
------------------------------
Title: Xxxxxx Xxxxxxxxxx, President/CEO
"SELLER"
WESTFARMS, L.P., a Connecticut
limited partnership
By: HRA Westfarms, Inc., a
Connecticut corporation, its
managing general partner
By: /XXXXXXX X. XXXXXX/
---------------------------
Xxxxxxx X. Xxxxxx, President
By: SMS&G Yankee Corp., a
Connecticut corporation, its
general partner
By: /XXXXXX X. XXXXXXX/
---------------------------
Xxxxxx X. Xxxxxxx, President
INDEX TO EXHIBITS AND SCHEDULES
-------------------------------
Exhibit A Legal Description
Exhibit B Form of Grant Deed
Exhibit C Form of Assignment of Contracts, Intangible
Property, Warranties and Guarantees
Exhibit D Form of Assignment and Assumption of Leases
and Rents
Exhibit E Form of Xxxx of Sale
Exhibit F Form of FIRPTA Affidavit
Exhibit G Form of Tenant Estoppel Certificate
Schedule 4.2.2 Schedule of Contracts
Schedule 4.2.3 Rent Roll
EXHIBIT A
To
Agreement of Purchase and Sale
LEGAL DESCRIPTION
EXHIBIT B
To
Agreement of Purchase and Sale
[FORM SUBJECT TO MODIFICATION BY LOCAL COUNSEL]
WARRANTY DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
WARRANTY DEED
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETING:
KNOW YE, THAT WESTFARMS LIMITED PARTNERSHIP, a Connecticut limited partnership
having an address of 000 Xxxx Xxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000 (the
"Grantor") for One Dollar and other good and valuable consideration received to
its full satisfaction of THE PRICE REIT, INC., a Maryland corporation having an
address of 000 Xxxxx Xxxxxxx Avenue, Fourth Floor, Los Angeles, California 90036
(the "Grantee"), does give, grant, bargain, sell and confirm unto the said
Grantee, its successors and assigns forever, those two certain pieces or parcels
of land, with the improvements thereon and appurtenances thereto, situated in
the Towns of Farmington and New Britain, County of Hartford and State of
Connecticut, more particularly described on Exhibit A attached hereto and made a
part hereof. Said premises are conveyed subject to those encumbrances set forth
on Exhibit B attached hereto and made a part hereof.
TO HAVE AND TO HOLD the above granted and bargained premises, with the
appurtenances thereof, unto the said Grantee, its successors and assigns
forever, to its and their own proper use and behoof. And also, the said Grantor
does for itself and its successors and assigns, covenant with the said Grantee,
its successors and assigns, that at and until the ensealing of these presents,
it is well seized of the premises, as a good indefeasible estate in Fee Simple;
and has good right to bargain and sell the same in manner and form as is above
written and that the same is free from all encumbrances whatsoever, except as
hereinbefore mentioned.
AND FURTHERMORE, the said Grantor does by these presents bind itself and its
successors and assigns forever to warrant and defend the above granted and
bargained premises to the said Grantee, its successors and assigns, against all
claims and demands whatsoever, except as hereinbefore mentioned.
IN WITNESS WHEREOF, the Grantor has hereunto caused its hand and seal to be set
this _____ day___________ of 1997.
Signed and Delivered in
the present of:
WESTFARMS LIMITED PARTNERSHIP
By: HRA Westfarms, Inc. its general
partner
By:
----------------------------
Xxxxxxx X. Xxxxxx, its President
By: SMS&G Yankee Corp., its general
partner
By:
----------------------------
Xxxxxx X. Xxxxxxx, its President
STATE OF ____________ )
) ss. ________
COUNTY OF __________ )
On this the ___ day of 199_, before me, the undersigned officer, personally
appeared Xxxxxxx X. Xxxxxx, who acknowledged himself to be the President of HRA
Westfarms, Inc., a general partner of Westfarms Limited Partnership, a
Connecticut limited partnership, and that he, as such officer of the general
partner, being authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing the name of the limited partnership by
himself as President of the general partner as his free act and deed.
In witness whereof, I hereunto set my hand.
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
STATE OF _____________ )
) ss. ________
COUNTY OF ___________ )
On this the _____ day of 199_, before me, the undersigned officer, personally
appeared __________________, who acknowledged himself to be the ____________ of
SMS&G Yankee Corp., a general partner of Westfarms Limited Partnership, a
Connecticut limited partnership, and that he, as such officer of the general
partner, being authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing the name of the limited partnership by
himself as ___________ of the general partner as his free act and deed.
In witness whereof, I hereunto set my hand.
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
EXHIBIT C
To
Agreement of Purchase and Sale
ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES
AND GUARANTEES
THIS ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTIES
(this "Assignment") is made as of the ___ day of ____________, 1997, by
WESTFARMS, L.P., a Connecticut limited partnership ("Assignor"), in favor of THE
PRICE REIT, INC., a Maryland corporation ("Assignee").
RECITALS;
Pursuant to that certain Agreement of Purchase and Sale dated as of __________,
1997 by and between Assignor and Assignee (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 and all intangible personal property owned by Seller which
is appurtenant to or used by Seller in connection with the Real Property or the
Improvements or Personal Property with respect thereto; (ii) any and all
Contracts with respect to the Real Property; (iii) any and all other property,
rights in or to property, general intangibles and contractual rights which
Seller may have which are necessary in connection with, or otherwise affect or
relate directly to, the acquisition, development, improvement, holding, use,
operation, maintenance, leasing or sale of the Real Property or the Improvements
or Personal Property with respect thereto, including, but not limited to, any
and all plans, specifications, subdivision maps and filings with respect
thereto, applications, entitlements, Licenses and Entitlements, subdivision or
other bonds, engineering or soil reports, surveys, maps, inspection reports,
management reports, marketing reports, marketing displays and brochures, all
contract rights, warranties from contractors, architects, engineers and material
and labor suppliers whether written or implied, all books and records, all
claims, choses in action, judgments, remedies, damages and causes of action, all
leases, easements, licenses and rights of way, occupancy or use agreements and
all other documents affecting or relating to the Real Property or the
Improvements or Personal Property with respect thereto; and (iv) any and all
other general intangibles, warranties, guarantees, permits, maps, surveys,
entitlements and other intangible rights of any type or nature relating to any
or all of the Real Property, or the Improvements or Personal Property with
respect thereto.
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.
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:
WESTFARMS, L.P., a Connecticut
limited partnership
By: HRA Westfarms, Inc., a
Connecticut corporation, its
managing general partner
By:
----------------------------
Xxxxxxx X. Xxxxxx, President
By: SMS&G Yankee Corp., a
Connecticut corporation, its
general partner
By:
----------------------------
Xxxxxx X. Xxxxxxx, President
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland corporation
By:
-----------------------------
Title:
EXHIBIT "A" TO ASSIGNMENT OF CONTRACTS, INTANGIBLE
PROPERTY, WARRANTIES AND GUARANTEES
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT D
To
Agreement of Purchase and Sale
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
[FORM SUBJECT TO MODIFICATION BY LOCAL COUNSEL]
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, WESTFARMS, L.P., a Connecticut limited partnership ("Assignor"),
hereby assigns, sets over, transfers and delegates to THE PRICE REIT, INC., a
Maryland corporation ("Assignee"), all of the landlord'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 any 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, funds and revenues of any kind
whatsoever payable under the Leases or otherwise with respect to the Land,
whether heretofore accrued or hereafter arising.
Assignee hereby assumes all of Assignor's obligations under or with respect to
the Leases described on Exhibit B attached hereto, which obligations arise out
of and relate to the period commencing on the date hereof. Assignor hereby
agrees to indemnify, defend, protect and hold Assignee harmless from and against
any and all loss, claim, obligation, cost or expense (including without
limitation reasonable attorneys' fees) relating to or in connection with any
obligations of the landlord under the Leases, which obligations arise out of or
relate to the period prior to the date hereof.
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 instrumen
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement effective
as of this ______ day of _______________, 1997.
ASSIGNOR:
WESTFARMS, L.P., a Connecticut
limited partnership
By: HRA Westfarms, Inc., a
Connecticut corporation, its
managing general partner
By:
----------------------------
Xxxxxxx X. Xxxxxx, President
By: SMS&G Yankee Corp., a
Connecticut corporation, its
general partner
By:
----------------------------
Xxxxxx X. Xxxxxxx, President
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland corporation
By:
-----------------------------
Its:
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
ASSUMED LEASES
EXHIBIT E
To
Agreement of Purchase and Sale
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, WESTFARMS, L.P., a Connecticut limited partnership ("Seller"),
hereby transfers, conveys and assigns to THE PRICE REIT, INC., a Maryland
corporation ("Purchaser"), and its successors and assigns forever, any and all
tangible personal property owned by Seller and located on or about and 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, but specifically excluding therefrom any such personal
property owned by any tenant of the Property.
If any litigation between Seller and Purchaser 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.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed and
delivered as of this ______ day of __________, 1997.
WESTFARMS, L.P., a Connecticut
limited partnership
By: HRA Westfarms, Inc., a
Connecticut corporation, its
managing general partner
By:
----------------------------
Xxxxxxx X. Xxxxxx, President
By: SMS&G Yankee Corp., a
Connecticut corporation, its
general partner
By:
----------------------------
Xxxxxx X. Xxxxxxx, President
EXHIBIT "A" TO XXXX OF SALE
DESCRIPTION OF PROPERTY
EXHIBIT F
To
Agreement of Purchase and Sale
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: 000000000;
2. Transferor's principal office address is 0000 Xxxx Xxxxxxxxx, Xxx Xxxxxx,
Xxxxxxx 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: , 1997
WESTFARMS, L.P., a Connecticut
limited partnership
By: HRA Westfarms, Inc., a
Connecticut corporation, its
managing general partner
By:
----------------------------
Xxxxxxx X. Xxxxxx, President
By: SMS&G Yankee Corp., a
Connecticut corporation, its
general partner
By:
----------------------------
Xxxxxx X. Xxxxxxx, President
EXHIBIT G
TENANT ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of _____________,
1997, is executed by ________________________ ("Tenant") in favor of THE PRICE
REIT, INC. ("Buyer").
R E C I T A L S
A. Buyer and WESTFARMS, L.P. ("Landlord") have entered into that certain
Agreement of Purchase and Sale, dated as of ___________, 1997 (the "Purchase
Agreement"), whereby Buyer has agreed to purchase, among other things, the
improved real property located in the Towns of Farmington and New Britain, State
of Connecticut, more particularly described on Exhibit A attached to the
Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease Agreement, dated as
of ________________ (together with all amendments, modifications, supplements,
guarantees and restatements thereof, the "Lease"), for a portion of the
Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of Landlord,
Tenant would execute and deliver an estoppel certificate certifying the status
of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that Tenant
execute this Certificate.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as follows:
AGREEMENT
Section 1. Lease.
Attached hereto as Exhibit "A" is a true, correct, and complete copy of the
Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements. guarantees and restatements thereof:
(If none, please state "None.")
Section 2. Leased Premises.
Pursuant to the Lease, Tenant leases those certain Premises (the "Leased
Premises") consisting of approximately ______________________ (______________)
rentable square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
[non-exclusive] right to use [___________ parking spaces/the parking area]
located on the Property during the term of the Lease. [Cross-out the preceding
sentence or portions thereof if inapplicable.]
Section 3. Full Force of Lease.
The Lease is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
Section 4. Complete Agreement
The Lease constitutes the complete agreement between Landlord and Tenant for the
Leased Premises and the Property.
Section 5. Acceptance of Leased Premises.
Tenant has accepted and is currently occupying the Leased Premises.
Section 6. Lease Term.
The term of the Lease commenced on _____________________ and ends on
_______________________, subject to the following options to extend:
(If none, please state "None.")
Section 7. Purchase Rights.
Tenant has no option, right of first refusal, right of first offer, or other
right to purchase all or any portion of the Leased Premises or all or any
portion of the Property, except as follows:
(If none, please state "None.")
Section 8. Rights of Tenant.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the Leased
Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other than as
Tenant under the Lease.
Section 9. Rent.
(a) The rent under the Lease is current, and Tenant is not in default in the
performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount of
________________________ Dollars ($_________) per month. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent, or
credits, offsets or reductions in rent, except as follows:
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area charges,
insurance, real estate taxes and administrative and over-head expenses is
___________ percent (______%) and is currently being paid at the rate of
____________________________________ Dollars ($__________) per month, payable to
______________________________________________.
(d) There are no existing defenses or offsets against rent due or to become due
under the terms of the Lease, and there presently is no default or other
wrongful act or omission by Landlord under the Lease or otherwise in connection
with Tenant's occupancy of the Leased Premises, except as
follows:______________________________________________________
(If none, please state "None.")
Section 10. Security Deposit.
The amount of Tenant's security deposit held by Landlord under the Lease is
_________________________________ Dollars ($_____________).
Section 11. Prepaid Rent.
The amount of prepaid rent, separate from the security deposit, is
__________________________________ Dollars ($_____________), covering the period
from ________ to ________.
Section 12. Insurance.
All insurance, if any, required to be maintained by Tenant under the Lease is
presently in effect.
Section 13. Pending Actions.
There are no actions, whether voluntary or otherwise, pending against the Tenant
(or any guarantor of the Tenant's obligations under the Lease) pursuant to the
bankruptcy or insolvency laws of the United States or any state thereof.
Section 14. Landlord's Obligations
As of the date of this Certificate, Landlord has performed all obligations
required of Landlord pursuant to the Lease and no offsets. counterclaims, or
defenses of Tenant under the Lease exist against Landlord. As of the date of
this Certificate, no events have occurred that, with the passage of time or the
giving of notice, would constitute a basis for offsets, counterclaims, or
defenses against the Landlord, except as follows:
(If none, please state "None.")
(If none, please state "None.")
Section 15. Assignments by Landlord.
Tenant has received no notice of any assignment, hypothecation or pledge of the
Lease or rentals under the Lease by Landlord.
Section 16. Assignments by Tenant.
Tenant has not sublet or assigned the Leased Premises or the Lease or any
portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises except as permitted under the Lease.
The address for notices to be sent to Tenant is as set forth in the Lease.
Section 17. Environmental Matters.
The operation and use of the Leased Premises does not involve the generation,
treatment, storage, disposal or release into the environment of any hazardous
materials, regulated materials and/or solid waste, except those used in the
ordinary course of operating a retail store or restaurant (if so permitted by
the Lease) or otherwise used in accordance with all applicable laws.
Section 18. Notification by Tenant.
From the date of this Certificate and continuing through Buyer's acquisition of
title to the Property, Tenant agrees to immediately notify Buyer, in writing, at
the following address, on the occurrence of any event or the discovery of any
fact that would make any representation contained in this Certificate
inaccurate:
The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Avenue
Fourth Floor
Los Angeles, CA 90036
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
Tenant makes this Certificate with the knowledge that it will be relied upon by
Buyer in agreeing to purchase the Property. In the event that Buyer acquires
the Property, nothing in this Section 18 shall limit Tenant's obligations under
the Lease.
Tenant his executed this Certificate as of the date first written above by the
person named below, who is duly authorized to do so.
TENANT
By:
-----------------------
Name:
Its:
SCHEDULE 4.2.2
SCHEDULE OF CONTRACTS
SCHEDULE 4.2.3
RENT ROLL
Attached.
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amendment") is
made as of this 29th day of July, 1997, by and between THE PRICE REIT, INC., a
Maryland corporation ("Purchaser"), and WESTFARMS, L.P., a Connecticut limited
partnership ("Seller"), with reference to the following facts:
A. Purchaser and Seller previously have entered into that certain Agreement
of Purchase and Sale dated as of June 19, 1997 (the "Agreement"), with respect
to the purchase and sale of certain real property located in the towns of
Farmington and New Britain, State of Connecticut.
B. Purchaser and Seller now desire to amend the Agreement as set forth
herein. Capitalized terms used herein without definition shall have the
respective meanings ascribed to such terms in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. Review Period. Notwithstanding anything to the contrary set forth in
the Agreement, Purchaser and Seller hereby agree that the Review Period shall be
extended for an additional period of fourteen (14) days, until August 14, 1997.
2. Reaffirmation. Except as modified hereby, the Agreement is and shall
remain in full force and effect.
3. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Amendment to be
executed as of the date first above written.
SELLER:
WESTFARMS, L.P., a Connecticut limited
partnership
By: HRA Westfarms, Inc., its general partner
By: /XXXXXXX X. XXXXXX/
--------------------------------
Xxxxxxx X. Xxxxxx, its President
By: SMS&G Yankee Corp., its general partner
By: /XXXXXX X. XXXXXXX/
----------------------
Xxxxxx X. Xxxxxxx
Its: President
PURCHASER:
THE PRICE REIT, INC., a Maryland corporation
By: /XXXXXX XXXXXXXX/
--------------------------------
Senior Executive Vice President
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amendment")
is made as of this 21st day of August, 1997, by and between THE PRICE REIT,
INC., a Maryland corporation ("Purchaser"), and WESTFARMS LIMITED PARTNERSHIP, a
Connecticut limited partnership ("Seller"), with reference to the following
facts:
A. Purchaser and Seller previously have entered into that certain Agreement
of Purchase and Sale dated as of June 19, 1997 (the "Original Agreement"), with
respect to the purchase and sale of certain real property located in the towns
of Farmington and New Britain, State of Connecticut.
B. In addition, Purchaser and Seller entered into that certain First
Amendment to Agreement of Purchase and Sale dated as of July 29, 1997 (the
"First Amendment"), pursuant to which Purchaser and Seller agreed to amend the
Original Agreement as set forth in the First Amendment. The Original Agreement,
as amended pursuant to the First Amendment, is referred to herein as the
"Agreement."
C. Purchaser and Seller now desire to further amend the Agreement as set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. Prorations. The following paragraph 10.2(i) is hereby added to the
Agreement:
"(i) Capital Expenditures and Maintenance Credit. At Closing, in addition
to any other credits to which Purchaser is entitled under the Agreement,
Purchaser shall receive a credit in the amount of One Hundred Fifty Thousand and
No/100 Dollars ($150,000.00) for capital expenditures to be made and maintenance
to be performed at the Property."
2. Due Diligence Review. Purchaser hereby acknowledges that Purchaser has
completed its due diligence review of the Property as provided in Section 5.2 of
the Agreement, and hereby waives its right to object to matters disclosed by
Purchaser's due diligence review and to terminate the Agreement due to
Purchaser's disapproval thereof as provided in Section 5.2. Notwithstanding the
foregoing, nothing set forth herein shall be deemed a waiver by Purchaser of its
objections to certain matters set forth in the PTR and Survey, and Purchaser
shall retain each and all of its rights under the Agreement with respect the
Objectionable Matters set forth in (i) those certain memoranda dated July 9,
1997 and July 25, 1997 from Xxxxx X. Xxxxxx of Xxxxxx, Xxxx & Xxxxxxxx LLP, on
behalf of Purchaser, to Lawyers Title Insurance Corporation and Seller and
(ii) that certain memorandum dated July 18, 1997 from Xxxxx X. Xxxxxx of Xxxxxx,
Xxxx & Xxxxxxxx LLP, on behalf of Purchaser, to Xxxxxxx-Xxxxxxx Design Group and
Seller (collectively, the "Title and Survey Notices"). In addition to the
matters disclosed in the Title and Survey Notices, Purchaser hereby objects to
the condition of the number of parking stalls at the Property, and reserves its
right to terminate the Agreement in the event that Purchaser does not receive,
on or prior to the Closing, evidence acceptable to Purchaser in its sole
discretion that the parking at the Property complies with all applicable laws.
Nothing set forth in this Section 2 shall waive or be deemed a waiver by either
party of the conditions to Purchaser's or Seller's obligation to close the
transaction as contemplated by the Agreement.
3. Additional Xxxxxxx Money Deposit. Seller and Purchaser hereby agree
that Section 9.2.2 of the Agreement is hereby deleted and that, notwithstanding
anything to the contrary set forth in the Agreement, Purchaser shall have no
obligation to deposit the Additional Xxxxxxx Money Deposit in the Title Escrow.
All references in the Agreement to the Additional Xxxxxxx Money Deposit are
hereby deleted.
4. Reaffirmation. Except as modified hereby, the Agreement is and shall
remain in full force and effect.
5. Defined Terms. Capitalized terms used herein and not otherwise defined
shall have the respective meanings ascribed to such terms in the Agreement.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Amendment to be
executed as of the date first above written.
SELLER:
WESTFARMS LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: HRA Westfarms, Inc., its general partner
By: /XXXXXXX X. XXXXXX/
--------------------------------
Xxxxxxx X. Xxxxxx, its President
By: SMS&G Yankee Corp., its general partner
By: /XXXXXX X. XXXXXXX/
--------------------
Xxxxxx X. Xxxxxxx
Its: President
PURCHASER:
THE PRICE REIT, INC., a Maryland corporation
By: /XXXXXX XXXXXXXX/
--------------------------------
Its: Senior Executive Vice President
CONTRIBUTION AGREEMENT
by and between
THE PRICE REIT RENAISSANCE PARTNERSHIP, L.P., a California limited partnership,
And
ALTAMONTE JOINT VENTURE, a Florida general partnership
Dated as of August 28, 1997
Property Location:
Renaissance Centre
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx
TABLE OF CONTENTS
Page
ARTICLE 1 THE PROPERTY; CONSIDERATION 1
SECTION 1.01. The Property 1
SECTION 1.02. Contribution 3
SECTION 1.03. Lease of Certain Space at the Property by AJV 3
ARTICLE 2 TITLE TO THE PROPERTY 6
SECTION 2.01. Title to the Property 6
ARTICLE 3 CLOSING CONDITIONS AND DELIVERIES 6
SECTION 3.01. Conditions to AJV's Obligations 6
SECTION 3.02. Conditions to PRRP's Obligations 6
SECTION 3.03. AJV's Closing Documents 10
SECTION 3.04. PRRP's Closing Documents 11
SECTION 3.05. Conditions Generally 11
SECTION 3.06. Return of Documents 11
ARTICLE 4 THE CLOSING 11
SECTION 4.01. The Closing 11
SECTION 4.02. Closing Costs 11
SECTION 4.03. Survival 12
SECTION 4.04. Apportionments and Payments 12
SECTION 4.05. Apportionment of Rents 14
SECTION 4.06. Survival 14
ARTICLE 5 REPRESENTATIONS AND WARRANTIES 14
SECTION 5.01. AJV's Representations and Warranties 14
SECTION 5.02. PRRP's Representations and Warranties 18
SECTION 5.03. Certain Limitations on AJV's Representations and
Warranties 18
SECTION 5.04. Survival of Representations and Warranties 19
SECTION 5.05. No Other Representations or Warranties 19
ARTICLE 6 INTENTIONALLY OMITTED 20
ARTICLE 7 COVENANTS OF PRRP 20
SECTION 7.01. Covenants of PRRP 20
ARTICLE 8 INTENTIONALLY OMITTED 21
ARTICLE 9 INDEMNITIES 21
SECTION 9.01. Indemnification Generally 21
ARTICLE 10 BROKER 21
SECTION 10.01. Broker 21
ARTICLE 11 REMEDIES 22
SECTION 11.01. Remedies 22
ARTICLE 12 NOTICES 22
SECTION 12.01. Notices 22
ARTICLE 13 MISCELLANEOUS PROVISIONS 23
SECTION 13.01. Acceptance of the Premises 23
SECTION 13.02. Press Release 23
SECTION 13.03. Assignment 24
SECTION 13.04. Binding Effect 24
SECTION 13.05. Partial Invalidity 24
SECTION 13.06. Recordation of Agreement 24
SECTION 13.07. Entire Agreement 24
SECTION 13.08. Further Assurances 24
SECTION 13.09. Enforcement 24
SECTION 13.10. Amendment 25
SECTION 13.11. Governing Law 25
SECTION 13.12. Exhibits 25
SECTION 13.13. No Waiver 25
SECTION 13.14. Headings; Article, Section and Exhibit
References/Interpretation 25
SECTION 13.15. No Other Parties 25
SECTION 13.16. Relationship 25
SECTION 13.17. Counterparts 25
SECTION 13.18. Time of the Essence 25
SECTION 13.19. Audit Cooperation 25
SECTION 13.20. Radon Gas Disclosure 25
SECTION 13.21. AJV's Waivers and Release 26
EXHIBITS
--------
EXHIBIT A Description of Land
(Section 1.01(a))
EXHIBIT A-2 Consideration
(Section 1.02)
EXHIBIT B Escrow Provisions
(Section 1.02)
EXHIBIT C Investment Representation Letter
(Section 3.02(j))
EXHIBIT D Space Leases
(Section 5.01(e))
EXHIBIT E Security Deposits
(Section 5.01(f))
EXHIBIT F Service Contracts
(Section 5.01(g))
EXHIBIT G Licenses and Permits
(Section 5.01(h))
EXHIBIT H Xxxx of Sale
(Sections 101(e) and 3.03(b))
EXHIBIT I Assignment and Assumption of Leases
(Sections 101(d) and 3.03(c))
EXHIBIT J Assignment and Assumption of Service Contracts
(Sections 1.01(f) and 3.03(d))
EXHIBIT K Assignment and Assumption of Licenses and Permits
(Sections 1.01(f) and 3.03(e))
EXHIBIT L Assignment of Guarantees and Warranties
(Sections 1.01(f) and 3.03(f))
EXHIBIT M Letter to Tenants
(Section 3.03(h))
EXHIBIT N Special Warranty Deed
(Sections 2.01 and 3.03(a))
EXHIBIT O Insurance Binder
(Section 10.03)
EXHIBIT P Estoppel Certificate
(Section 6.01(d))
EXHIBIT Q Brokerage Agreements
(Section 5.01(f))
EXHIBIT R FIRPTA Affidavit
(Section 3.03(o))
SCHEDULE 1.05 Vanilla Shell Construction Provision
(Section 1.05)
SCHEDULE 4.04 Tax Proration Exceptions
(Section 4.04(i))
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") dated as of August 28, 1997 (the
"Date Hereof", as used in this Agreement, shall be the date that this Agreement
shall have been executed by PRRP and AJV, or in the event that PRRP and AJV
shall have executed this Agreement on separate dates, the date of the last
execution) is made between ALTAMONTE JOINT VENTURE, a Florida general
partnership, having an office x/x Xxxx Xxxxxxxxxxx Xxxxxxxxxxx, 0000 Xxxxxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("AJV"), and THE PRICE REIT RENAISSANCE
PARTNERSHIP, L.P., a California limited partnership, having an office at 000
Xxxxx Xxxxxxx Avenue, Fourth Floor, Los Angeles, California 90036 ("PRRP").
RECITALS
A. AJV and The Price REIT, Inc., a Maryland corporation, as partners in PRRP
have executed the Agreement of Limited Partnership of The Price REIT Renaissance
Partnership, L.P., dated as of August 22, 1997 (the "Partnership Agreement")
which contains the rights, duties and obligations of the partners.
B. AJV is the owner of certain Property described in Section 1.01 hereof which
is subject to the existing loan (the "Existing Loan") in favor of Barclays Bank
PLC, New York Branch ("Existing Lender"), which Existing Loan is secured by,
among other things, a mortgage on the Property (the "Existing Mortgage"). The
current balance of the Existing Loan as of the date hereof is $32,204,583
("Outstanding Amount of the Barclays Loan").
C. As consideration for its limited partnership interest in PRRP, AJV shall
contribute the Property to PRRP subject to the Existing Loan.
D. PRRP shall then further reduce the total amount outstanding under the
Existing Loan to $7,000,000.
E. PRRP shall cause The Price REIT, Inc., a Maryland corporation, (the "New
Lender") to purchase the Existing Loan from the Existing Lender for $7,000,000.
F. After the New Lender acquires the Existing Loan, the New Lender and PRRP
shall amend the Existing Loan in certain respects and AJV, its partners or its
principals shall guaranty the repayment thereof.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements hereinafter set forth, and subject to the terms and conditions
hereof, AJV and PRRP hereby covenant and agree as follows:
ARTICLE 1
THE PROPERTY; CONSIDERATION
SECTION 1.01. The Property. AJV shall contribute, assign, transfer and convey
to PRRP, and PRRP shall acquire from AJV, upon and subject to the terms and
conditions hereof, the following:
(a) Land. That certain plot, piece and parcel of land located in Altamonte
Springs, Florida and commonly known as Renaissance Centre, as more particularly
described in Exhibit A hereto (the "Land");
(b) Appurtenances. All of AJV's right, title and interest in all rights,
privileges, strips, gores and easements appurtenant to and for the benefit of
the Land, including, without limitation, all minerals, oil, gas and other
hydrocarbon substances on an under the Land, as well as any 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 AJV and used in
connection with the beneficial operation, use and enjoyment of the Land, the
Space Leases, the Building, the Intangible Property (all as hereinafter
defined), or any other appurtenance, together with all rights of AJV in and to
streets, sidewalks, alleys, driveways, parking areas and areas adjacent thereto
or used in connection therewith, and all rights of AJV in any land lying in the
bed of any street, road or avenue, opened or proposed, public or private, in
front of or adjoining the Land to the center line thereof (all of which are
collectively referred to as the "Appurtenances");
(c) The Building. All of AJV's right, title and interest in 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 "Building");
(d) Leases and Rents. All leases, occupancy agreements and other similar
agreements relating to the Property (as hereinafter defined) to which AJV is a
party or by which it is bound, together with all modifications, extensions and
renewals thereof, (the "Space Leases"), and any guarantees of any of the
foregoing with respect to or demising any part of the Land, Appurtenances or the
Building, all of AJV's right, title and interest in all income, receipts, funds
and revenues of any kind whatsoever payable under the Space Leases or otherwise
with respect to all or any portion of the Land, Appurtenances or the Building
subject to apportionment in accordance with Sections 4.04 and 4.05 hereof (the
"Rents"), all of which Leases and Rents shall be contributed, transferred and
assigned to PRRP pursuant to an instrument in the form of Exhibit I hereto (the
"Assignment and Assumption of Leases and Rents");
(e) Personal Property. All of AJV's right, title and interest in all fixtures,
machinery, equipment and all other tangible personal situated or to be situated
in and used in connection with, the Land and/or the Building (the "Personal
Property"), all of which Personal Property shall be contributed, transferred and
assigned to PRRP pursuant to an instrument in the form of Exhibit H hereto (the
"Xxxx of Sale");
(f) Intangible Property. All of AJV's right, title and interest in all
intangible personal property which relates to and is reasonably required for the
ownership, operation or functioning of all of or part of the Land, the Building
or Personal Property generally (the "Intangible Property"), including, without
limitation, (i) the name "Renaissance Centre", (ii) any and all contracts, all
of which shall be assigned to PRRP pursuant to one or more (as determined by
PRRP) assignments in the form of Exhibit J hereto (the "Assignment and
Assumption of Service Contracts"), (iii) all licenses and permits, all of which
shall be assigned to PRRP pursuant to one or more (as determined by PRRP)
assignments in the form of Exhibit K hereto (the "Assignment and Assumption of
Licenses and Permits"), and (iv) all warranties and guarantees, all of which
shall be assigned to PRRP pursuant to one or more (as determined by PRRP)
assignments in the forms of Exhibit L hereto (the "Assignment and Assumption of
Guarantees and Warranties").
The Land, the Building, the Space Leases, the Rents, the Personal Property and
the Intangible Property and all other rights, improvements and property
heretofore mentioned being referred to collectively herein as the "Property".
SECTION 1.02. Contribution. At the closing, subject to the terms of this
Agreement, AJV shall contribute the Property to PRRP subject to the Existing
Loan in the amount equal to the Outstanding Amount of the Barclays Loan
(collectively, the "AJV Contribution"). The AJV Contribution shall constitute a
"Capital Contribution" pursuant to Article 4.1 the Partnership Agreement and is
intended to be governed by Section 721(a) of the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated thereunder from
time to time (the "Code"). In exchange for the AJV Contribution, PRRP shall
deliver units of limited partnership interest in PRRP ("Partnership Units"), as
set forth on Exhibit A-2 hereto. In addition and notwithstanding anything to
the contrary contained in this Agreement, at the Closing, PRRP shall be
responsible for (i) reducing the outstanding balance of the Existing Loan to
$7,000,000, (ii) causing the New Lender to purchase the Existing Loan for
$7,000,000 and modify the Existing Loan Documents pursuant to the modification,
(iii) depositing the Pine & Design Rent Portion and the 2000 SF Space Rent
Portion with Escrowee as required by Section 1.05(b) and (c), and (iv) paying
all of the AJV Closing Costs set forth in Section 4.02 and the commission to the
Broker as required under Section 10.01; provided, however, that in the event the
total amount payable by PRRP or New Lender under clauses (i), (ii), (iii) and
(iv) of this Section 1.02 exceeds $33,433,000, AJV shall be responsible for
paying such excess amounts by depositing such amounts with Escrowee prior to the
Closing Date. For purposes of this Agreement, the term "Consideration" means
the amount payable by PRRP or New Lender under clauses (i), (ii), (iii) and (iv)
of this Section provided such amounts are not in excess of $33,433,000. Each
party shall be responsible for depositing its adjustments and prorations
pursuant to Sections 4.04 with Escrowee prior to the Closing Date.
SECTION 1.03. Lease of Certain Space at the Property by AJV.
(a) The parties acknowledge that as of the date hereof there exists at the
Property two (2) spaces which may be vacant at Closing (the "Vacant Space").
The Vacant Space includes the following: (a) 2000 square feet of space that is
now vacant (the "2000 SF Space") and (b) 11,050 square feet of space that was
leased to Pine & Design Furniture, which tenant has stated that it will be
vacating such space (the "Pine & Design Space"). The parties agree that if the
2000 SF Space and/or the Pine & Design Space has not been "Leased" by the
Closing Date in accordance with and subject to Section 6.01 hereof, PRRP, as
landlord, will master lease the unleased Vacant Space to AJV (or any designee of
AJV), as tenant. In the event the 2000 SF Space is master leased to AJV, (the
"2000 SF Master Lease"), such 2000 SF Master Lease will (1) be for a term of one
(1) year, (2) provide that the only monetary obligation of the tenant thereunder
will be to pay base rent in the amount of $40,000 per year, together with its
prorata share of common area maintenance charges, real estate taxes and
insurance expenses (collectively, the "2000 SF Space Rent"), which rent shall be
payable, on the first day of each month, in equal monthly installments,
(3) terminate at such time as PRRP Leases such space and (4) contain such other
terms and provisions as are reasonably acceptable to AJV and PRRP including that
the 2000 SF Space will be surrendered in "Vanilla Shell Condition," as defined
in Schedule 1.05 attached hereto. The term "prorata share" means 0.74% in the
case of the 2000 SF Space. In the event the Pine & Design Space is not Leased
at Closing, PRRP will master lease the Pine & Design Space to AJV (the "Pine &
Design Master Lease"), such lease will (1) be for a term of one (1) year,
(2) provide that the only monetary obligation of the tenant thereunder will be
to pay base rent in the amount of $132,600 per year, together with its prorata
share of common area maintenance charges, real estate taxes and insurance
expenses (collectively, the "Pine & Design Rent"), which rent shall be payable,
on the first day of each month, in equal monthly installments, (3) terminate at
such time as PRRP Leases such space and (4) contain such other terms and
provisions as are reasonably acceptable to AJV and PRRP including that the Pine
& Design Space will be surrendered in Vanilla Shell Condition. The term
"prorata share" means 4.08% in the case of the Pine & Design Space. The term
"Leased" and "Leases" as used in this Section 1.05 shall mean all of the
following shall have occurred: (a) a written lease agreement shall have been
executed by PRRP and a new tenant and (b) the new tenant shall have commenced
paying rent under such new lease and no free or reduced rent shall be applicable
within the first year of the term of such Lease. The forms of the 2000 SF
Master Lease and the Pine & Design Master Lease shall be agreed to between AJV
and PRRP prior to the Closing Date.
(b) If the parties enter into the Pine & Design Master Lease the AJV shall
(unless PRRP is obligated to deposit the Pine & Design Rent Portion with
Escrowee in accordance with Section 1.02 hereof, in which case PRRP shall make
such deposit), on the Closing Date, deposit with Escrowee the sum of $170,617 in
the form of a check or wire transfer (the "Pine & Design Rent Portion"). The
Pine & Design Rent Portion shall be used by Escrowee to pay the monthly Pine &
Design Rent under the Pine & Design Master Lease. Escrowee shall place said sum
in an interest-bearing account with a bank or savings association. All interest
on such sum shall accrue for the benefit of AJV. Until the expiration of the
term of the Pine & Design Master Lease or the earlier termination thereof, the
Escrowee shall on the first day of each month during the term of the lease,
commencing on the first day of the first month following Closing Date, make
payments to PRRP in the amount of $14,218.08 per month. Notwithstanding the
foregoing, if the term of the Pine & Design Master Lease does not commence on
the first day of a month, the parties agree that the Pine & Design Rent payable
during the first and last months of the term shall be prorated. The parties
agree to provide Escrowee with the amount of such prorated payments. If the
Pine & Design Master Lease is terminated prior to the expiration of the term
other than as a result of AJV's default and all of AJV's obligations under the
Pine & Design Master Lease are satisfied, all amounts remaining in the escrow
account shall (subject to proration in accordance with the two preceding
sentences) be returned to AJV.
(c) If the parties enter into the 2000 SF Master Lease the AJV shall (unless
PRRP is obligated to deposit the 2000 SF Space Rent Portion with Escrowee
pursuant to the terms of Section 1.02 hereof, in which case PRRP shall make such
deposit), on the Closing Date, deposit with Escrowee the sum of $46,930 in the
form of a check or wire transfer (the "2000 SF Space Rent Portion"). The
2000 SF Space Rent Portion shall be used by Escrowee to pay the monthly 2000 SF
Space Rent under the 2000 SF Master Lease. Escrowee shall place said sum in an
interest-bearing account with a bank or savings association. All interest on
such sum shall accrue for the benefit of AJV. Until the expiration of the term
of the 2000 SF Master Lease or the earlier termination thereof, the Escrowee
shall on the first day of each month during the term of the 2000 SF Master
Lease, commencing on the first day of the first month following Closing Date,
make payments to PRRP in the amount of $3,910 per month. Notwithstanding the
foregoing, if the term of the 2000 SF Master Lease does not commence on the
first day of a month, the parties agree that the rent payable during the first
and last months of the term shall be prorated. The parties agree to provide
Escrowee with the amount of such prorated payments. If the 2000 SF Master Lease
is terminated prior to the expiration of the term other than as a result of
AJV's default and all of AJV's obligations under the 2000 SF Master Lease are
satisfied, all amounts remaining in the escrow account shall (subject to
proration in accordance with the two preceding sentences and satisfaction of all
requirements of the 2000 SF Master Lease) be returned to AJV.
(d) If the Pine & Design Master Lease and/or the 2000 SF Master Lease is/are
entered into, PRRP shall use commercially reasonable efforts to lease the
2000 SF Space and/or the Pine & Design Space, as applicable. In addition, AJV
may notify PRRP of any proposed tenant that AJV has located for either the
2000 SF Space or the Pine & Design Space. Such notice shall indicate the name
of the proposed tenant, the term of the proposed lease, the rent payable under
the proposed lease, the estimated tenant improvement cost and the brokerage
commission payable in respect of such lease (collectively, the "Terms of the New
Space Lease"). PRRP shall have the right to approve or disapprove (provided
such approval shall not be unreasonably withheld) such proposed tenant and the
Terms of the New Space Lease; provided, however, that PRRP must notify AJV of
its decision within five (5) business days after receipt by PRRP of the AJV's
notice. If PRRP shall not give notice of its disapproval within such five
(5) business day period then, for purposes of this Agreement only, PRRP shall be
deemed to have approved such proposed tenant and the Terms of the New Space
Lease. PRRP hereby approves Golf Superstores as a proposed tenant for the Pine
& Design Space. If PRRP approves or is so deemed to have approved such proposed
tenant and the Terms of the New Space Lease, the Pine & Design Master Lease
and/or the 2000 SF Master Lease, as the case may be, shall terminate as of the
date such space is Leased and Escrowee shall be authorized to return to AJV the
balance of the Pine & Design Portion and/or the 2000 SF Space Portion which is
allocable to the period after such space is Leased (subject to satisfaction of
all requirements of the Pine & Design Master Lease and/or the 2000 SF Master
Lease, as the case may be). PRRP agrees that it shall diligently pursue the
leasing of the Pine & Design Space and the 2000 SF Space and act in good faith
and in a commercially reasonable manner in negotiating a lease for such space
after the Terms of the New Space Lease and the proposed tenant have been
approved or deemed approved. At such time as PRRP fails to diligently pursue
the leasing of such space or fails to act in good faith and in a commercially
reasonable manner in negotiating a lease for such space, AJV shall give written
notice of such failure to PRRP ("AJV's Notice"). PRRP shall have ten (10)
business days following the receipt of AJV's Notice to evidence to AJV its
diligent pursuit of the lease of such space. If PRRP does not do so, provided
the failure to diligently pursue is not due to the actions of the proposed
tenant, AJV may terminate the Pine & Design Master Lease and/or the 2000 SF
Master Lease, as applicable, by notice to PRRP and, upon such termination,
Escrowee shall be authorized to return to AJV the balance of the Pine & Design
Portion and/or the 2000 SF Space Portion which is allocable to the period after
such termination. In addition, for the purposes of this Section 1.05, such New
Space Lease shall not provide for free rent in excess of one month after the
tenant under the New Space Lease has opened for business.
(e) The provisions of this Section 1.05 shall survive the Closing.
ARTICLE 2
TITLE TO THE PROPERTY
SECTION 2.01. Title to the Property. (a) At the Closing, AJV shall contribute
and convey to PRRP marketable and insurable fee simple title to the Property
subject to Permitted Exceptions (as hereinafter defined), pursuant to a special
warranty deed (the "Deed") in the form attached hereto as Exhibit N.
(b) Prior to the Date Hereof, PRRP has made application to Chicago Title
Insurance for the issuance of an ALTA title insurance commitment (the "Title
Commitment") in the name of PRRP insuring PRRP's title to the Property in the
amount of $33,700,000 or such lesser amount as PRRP may determine and containing
endorsements reasonably required by PRRP.
(c) Prior to the Date hereof, PRRP has, at PRRP's cost and expense, ordered a
survey of the Property (the "Updated Survey").
(d) All exceptions to title to, and/or encumbrances against, the Property shown
on the Title Commitment or the Updated Survey but not objected to by PRRP on or
before the Closing Date shall be deemed "Permitted Exceptions".
ARTICLE 3
CLOSING CONDITIONS AND DELIVERIES
SECTION 3.01. Conditions to AJV's Obligations. The obligation of AJV to
contribute the Property to PRRP and to otherwise consummate the transaction
contemplated hereby shall be subject to the satisfaction of the following
conditions precedent on and as of the Closing Date:
(a) all representations and warranties of PRRP contained in Section 5.02 of this
Agreement shall have been true when made and shall be true in all respects at
and as of the Closing Date as if such representations and warranties were made
at and as of the Closing Date, and PRRP shall have performed and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by PRRP prior to or at the Closing;
(b) AJV shall have received PRRP's Closing Documents (as hereinafter defined);
and
(c) AJV shall have received Partnership Units in accordance with Section 1.02 of
this Agreement, PRRP shall have deposited with Escrowee the amounts that are
payable by it pursuant to the terms of Section 1.02 and Section 4.04 hereof.
(d) AJV shall have received and approved the Guaranty (as hereinafter defined).
(e) PRRP shall have reduced the outstanding amount of the Existing Loan and
thereafter, PRRP shall have caused New Lender to have purchased the Existing
Loan from the Existing Lender for $7,000,000.
SECTION 3.02. Conditions to PRRP's Obligations. PRRP's obligation to deliver
the Consideration, to acquire the Property and otherwise consummate the
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions precedent on and as of the Closing Date:
(a) In connection with PRRP's inspection, review and analysis of the Property
and matters related thereto, AJV shall deliver to PRRP, at AJV's sole cost and
expense, copies of each of the following items to the extent in AJV's possession
or control (collectively, the "Due Diligence Information"):
(i) all Space Leases and proposed Space Leases in effect at the Property;
(ii) a current rent roll specifying the name of each tenant under the
Space Leases, the date of each tenant's Space Lease, the amount of monthly
rental and all other charges payable by each tenant, the amount of any Security
Deposit or prepaid rental, if any, paid by each tenant, the expiration date of
each Space Lease, and the amount and length of option periods, if any, of each
Space Lease.
(iii) the real estate and ad-valorem tax bills relating to the Property for
1994, 1995 and 1996;
(iv) all leasing commission agreements, if any, and all service, supply
and maintenance contracts and agreements relating to and currently in effect at
the Property;
(v) all soils, environmental inspection and hazardous materials reports,
tests, surveys, studies, audits or assessments (including, without limitation,
any reports attesting to the presence (or lack thereof) of Hazardous Materials
(as defined in Section 5.01(n) of this Agreement)), all termite reports,
engineering studies and other reports attesting to the physical and structural
condition of the Property, and all appraisals, maps, studies, analyses with
respect to the Property;
(vi) all insurance policies, including, without limitation, existing fire
and extended coverage and general liability insurance policies, maintained by
the AJV with respect to the Property within the last year;
(vii) all operating statements of the Property for calendar years 1994,
1995, 1996, and the first quarter of 1997;
(viii) all permits and licenses relating to the Property;
(ix) all documents and certificates from appropriate governmental
authorities relating to the zoning, building and platting status of the
Property;
(x) a description of existing and proposed local improvements affecting
the Property, including assessment levels; and
(xi) all plans and construction drawings for all buildings to be
constructed on the Property.
Notwithstanding anything to the contrary herein contained, while AJV shall
deliver to PRRP the Due Diligence Information in the manner provided for in this
Agreement, AJV will not be under any obligation to order or otherwise obtain new
or additional studies or any items that are not within its present control or
possession. At any time prior to the Closing, PRRP shall not contact any of the
Property's tenants regarding any of the transactions contemplated herein without
first allowing AJV to be present either in person or on the telephone during
such contact.
PRRP hereby acknowledges receipt of the Due Diligence Information which AJV
represents is true, correct and complete in all material respects. AJV shall
make available the Due Diligence Information set forth in clauses (x) and (xi)
of this Section 3.02(a) for PRRP's review to the extent in AJV's possession or
control.
(b) Subject to Article 5 of this Agreement, all representations and warranties
of AJV contained in this Agreement shall be true in all material respects at and
as of the Closing Date, and AJV shall have performed and complied in all
material respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by AJV prior to or at the Closing
Date;
(c) PRRP shall have received AJV's Closing Documents (as hereinafter defined).
(d) PRRP's review and approval, in its sole and absolute discretion, of all
utility contracts, water and sewer service contracts, Service Contracts (as
hereinafter defined), brokerage contracts, commission contracts, warranties,
permits, soils reports, and other contracts or documents of any nature relating
to the Property or any portion thereof and theretofore disclosed to PRRP;
provided that PRRP's only remedy if it disapproves any such contract(s) shall be
to compel the AJV to terminate such disapproved contract(s) on or prior to the
Closing, which AJV hereby agrees to do at its sole cost and expense if so
requested by PRRP. In the event PRRP fails to notify AJV of its disapproval of
any of the foregoing items prior to or on the Closing Date, such items shall be
deemed approved. As of the Closing Date, there shall be no Service Contracts or
utility contracts other than those approved or deemed approved by PRRP.
(e) PRRP's review and approval, in its sole and absolute discretion on or prior
to the Closing Date, 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 PRRP's choice prepared
at PRRP's sole cost and expense (the "Phase I Report"), and (b) the results of
PRRP's physical inspection and testing of the Property, or any portion thereof
(which testing shall be conducted at PRRP'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. AJV shall
allow PRRP reasonable access to the Property to perform any physical inspection
thereof which PRRP reasonably deems appropriate; provided that: (i) PRRP shall
provide AJV with reasonable advance notice prior to any such physical
inspection, and provided further that AJV shall have the right to accompany (or
have an agent of AJV accompany) PRRP during such physical inspection; and (ii)
PRRP shall not unreasonably disturb any tenant of the Property during any such
physical inspection. PRRP shall keep and maintain comprehensive general
liability insurance in amounts, in forms and with carriers reasonably acceptable
to AJV, and prior to entry on the Property provide AJV with certificates of
insurance evidencing such coverage and naming AJV and its managing agent as
additional insureds. PRRP agrees to indemnify, defend and hold AJV 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 PRRP or its agents during any physical inspection and (y)
any claim made against AJV by any tenant or any third party alleging any
physical injury caused by PRRP or its agents or alleging breach of a lease
caused by PRRP or its agent during such inspection. Notwithstanding the
foregoing, in no event shall PRRP indemnify AJV for any loss, liability, damage,
claims, costs or expenses arising or resulting from the negligence or willful
misconduct of AJV or its agents. The provisions of this indemnity shall survive
the closing or termination of this Agreement.
(f) PRRP shall have confirmed that all governmental permits and approvals with
respect to the Property required for the use or occupancy of the Property or any
portion thereof, are in full force and effect.
(g) PRRP shall have received the fully executed Estoppels referred to in Section
6.01(d) of this Agreement in substantially the form attached hereto as Exhibit P
or as agreed to by tenant and AJV under the terms of tenant's current lease from
all tenants constituting at least five percent (5%) of the total square footage
of the Building and from tenants under the Space Leases constituting at least
eighty-five percent (85%) of the total leased square footage of the Property.
PRRP shall have received an estoppel, executed by AJV, with regard to each Space
Lease for which AJV is unable to obtain an Estoppel executed by the tenant under
such Space Lease.
(h) This Agreement and the transactions contemplated hereby shall have been
approved by the board of directors of PRRP's general partner prior to the
Closing Date.
(j) AJV shall have delivered to PRRP an investment representation letter in the
form of Exhibit C annexed hereto. PRRP shall have no reasonable basis to
believe that the representations made in such letter are not true and correct.
AJV shall execute any additional documents or instruments that are necessary in
order to comply with the Securities Act of 1933, as amended, and the regulations
promulgated thereunder from time to time ("Securities Act") or state securities
or "Blue Sky" laws or that are otherwise reasonably requested by PRRP. PRRP
shall have received all required material third party consents and approvals,
including all lender consents and all required governmental approvals, including
the approval of any state authorities in respect of any sale of securities of
PRRP.
(k) PRRP shall have received and approved all documentation, including without
limitation, notes, mortgages and documentation executed by Existing Lender
confirming the Outstanding Amount of the Barclays Loan, exclusive of loan
agreements, guaranties and title policy ("Existing Loan Documents") which have
been executed on or before the Closing Date in connection with the Existing Loan
and, shall have obtained a beneficiary's demand executed by the Existing Lender
or AJV shall have received a statement to such effect from Existing Lender and
AJV shall in turn represent and warrant same to PRRP ("Existing Lender's
Demand") in form and substance acceptable to PRRP in its sole and absolute
discretion, setting forth the amount demanded by Existing Lender (which shall
not exceed $7,000,000) in order to sell the Existing Loan to New Lender and the
Existing Loan to New Lender. New Lender and PRRP shall have approved (i) the
form of modifications to the note and mortgage of the Existing Loan
(collectively, "Modification") pursuant to which PRRP will assume the
obligations of AJV under the Existing Loan arising on or after the Closing Date
and evidencing that the Outstanding Amount of the Barclays Loan has been reduced
to $7,000,000 and, (ii) the form of a guaranty of the Existing Loan, as modified
pursuant to the Modification, to be executed by AJV, its partners or principals
as of the Closing Date ("Guaranty"). Prior to the Closing Date, (i) PRRP shall
have received an original Modification executed by the New Lender and (ii) the
New Lender shall have received (v) an original Modification executed by PRRP,
(w) an original Guaranty executed by AJV, its partners or its principals, (x)
all original Existing Loan Documents, (y) an allonge, UCC assignments and an
assignment (without recourse, warranty or representation other than that
Existing Lender has not previously sold, assigned, pledged or participated any
of its interest in the Existing Loan) of the Existing Loan Documents, in form
and substance reasonably acceptable to New Lender, which has been originally
executed by Existing Lender ("Assignment of Existing Loan Documents"), and (z)
the irrevocable commitment of the applicable title company to issue a lender's
title policy in form and substance acceptable to New Lender insuring New Lender
as the holder of a first mortgage on the Property, with a liability amount of
$7,000,000 ("New Lender's Title Policy").
(l) AJV shall have deposited with Escrowee the amounts that are payable by it
pursuant to the terms of Section 1.02 hereof, if any.
SECTION 3.03. AJV's Closing Documents. At the Closing, AJV shall deliver to
PRRP the following documents duly executed and, where appropriate, acknowledged
by AJV or its partners or principals and the following other items (the
documents and other items described in this Section 3.03 being collectively
referred to herein as the "AJV's Closing Documents"):
(a) the Deed in the form annexed hereto as Exhibit N;
(b) a Xxxx of Sale in the form annexed hereto as Exhibit H;
(c) the Assignment and Assumption of Leases in the form annexed hereto as
Exhibit I;
(d) the Assignment and Assumption of Service Contracts in the form annexed
hereto as Exhibit J;
(e) the Assignment and Assumption of Licenses and Permits in the form annexed
hereto as Exhibit K;
(f) an Assignment of Guarantees and Warranties in the form annexed hereto as
Exhibit L;
(g) immediately available funds, in an amount equal to (i) the total of all
security deposits (and any interest thereon) required to be held by the landlord
under the Space Leases (ii) the total amount of the apportionments and payments
due from AJV pursuant to Section 4.04 hereof;
(h) a letter notice to each of the tenants at the property in the form annexed
hereto as Exhibit M;
(i) to the extent the same are in AJV's possession, a complete set of keys for
the Property;
(j) to the extent the same are in AJV's possession, "as-built" building plans,
specifications and drawings for the Property;
(k) to the extent the same are in AJV's possession, the original Licenses and
Permits (as hereinafter defined) to be transferred hereunder, except to the
extent the same are required to be and are affixed at the Property;
(l) to the extent the same are in AJV's possession, original copies of all
guaranties or warranties then in effect in respect of the Property or building
fixtures or equipment comprising part of the Property;
(m) original, executed counterparts of the Service Contracts or, if unavailable,
photocopies thereof certified by AJV as true and complete photocopies thereof;
(n) original, executed counterparts of the Space Leases or, if unavailable,
photocopies thereof certified by AJV as true and complete photocopies thereof;
(o) an affidavit of AJV pursuant to Section 1445(b)(2) of the Internal Revenue
Code of 1986, as amended, in the form attached hereto as Exhibit R stating under
penalty of perjury that AJV is not a foreign person within the meaning of such
Section;
(p) appropriate transfer tax returns of AJV;
(q) a closing statement confirming the Consideration and apportionments required
to be made hereunder; and
(r) the Guaranty.
SECTION 3.04. PRRP's Closing Documents. At the Closing, PRRP shall deliver to
AJV the following documents duly executed and, where applicable, acknowledged by
PRRP (the documents described in this Section 3.04 being collectively referred
to herein as the "PRRP's Closing Documents"):
(a) counterparts of the documents described in Section 3.03 (c), (d), (e), (f)
and (q);
(b) appropriate transfer tax returns of PRRP if applicable;
(c) instructions to Escrowee regarding sums deposited under Section 1.05 hereof;
(d) a receipt for the security deposits transferred to PRRP;
(e) Modification Agreement;
(f) Assignment of Existing Loan Documents; and
(g) the Partnership Units.
SECTION 3.05. Conditions Generally. The foregoing conditions are for the
benefit only of the party for whom they are specified to be conditions precedent
and such party may, in its sole discretion, waive any or all of such conditions
and close title under this Agreement without any increase in, abatement of or
credit against the Consideration.
SECTION 3.06. Return of Documents. PRRP hereby agrees that if the transactions
contemplated herein do not occur for any reason whatsoever, PRRP shall promptly
provide to AJV all documents, surveys, or other written information of whatever
kind or nature in the possession of PRRP which have been delivered by AJV to
PRRP in connection with the contemplated transactions herein.
ARTICLE 4
THE CLOSING
SECTION 4.01. The Closing. The closing of the contribution contemplated by
this Agreement (the "Closing") shall take place at the offices of the Escrowee,
or at such place as AJV or PRRP may mutually designate upon at least two (2)
days' prior notice, at 10:00 A.M. local time not later than August 29, 1997.
The time and date of the Closing are herein referred to as the "Closing Date".
SECTION 4.02. Closing Costs.
(a) Subject to Section 1.02, AJV shall pay the cost of any recording fees,
documentary stamps or transfer taxes imposed with respect to the contribution of
the Property, as well as for AJV's attorneys' fees, legal and accounting fees
relating to the formation of PRRP and the contribution of the Property thereto,
any intangible taxes imposed as a condition of recording the Modification to the
Existing Loan and any premium charged by the applicable title company for the
issuance of the New Lender's Title Policy;
(b) PRRP shall pay for any premiums charged by the title company for the
issuance of the title insurance policy insuring PRRP's title to the Property in
a liability amount equal to $33,700,000, the cost of the Updated Survey, and any
intangible taxes imposed as a condition of recording any mortgage other than a
modification of the Existing Loan;
(c) Subject to Section 1.02, all other Closing costs shall be paid by that party
customarily paying for such costs in the consummation of commercial real estate
transactions in Seminole County, Florida. Any costs in connection therewith to
be paid by PRRP shall be paid at the Closing. Subject to Section 1.02, any
costs in connection therewith to be paid by AJV shall be paid by AJV at the
Closing.
(d) All costs payable under clause (a) of this Section 4.02 together with those
paid by AJV under clause (c) of this Section 4.02 are hereinafter referred to as
"AJV Closing Costs."
SECTION 4.03. Survival. The provisions of Section 4.02 shall survive the
Closing.
SECTION 4.04. Apportionments and Payments. (a) The following shall be
apportioned at the Closing as of the close of business on the earlier of (i) the
day preceding the Closing Date: or (ii) August 28, 1997.
(i) gross real property taxes, on the basis of the fiscal year for which
assessed (other than the prorata share borne by the tenants listed on
Schedule 4.04 attached hereto and incorporated herein by this reference);
(ii) water rates and charges, unless the direct responsibility of any
tenant or subtenant at the Property;
(iii) sewer taxes and rents;
(iv) annual license, permit and inspection fees, if any;
(v) fuel and steam, gas, electricity charges and all other utilities which
are supplied to the Property;
(vi) vault taxes;
(vii) rents and other charges (including cost reimbursement payments)
(collectively, for the purposes of this clause (vii), "rents") payable under the
Space Leases as and when collected; provided, however, that (A) certain amounts
are subject to final computation as provided in Section 4.05 and (B) if any of
the rents under any of the Space Leases shall be accrued and unpaid at the
Closing Date, the rents collected by PRRP on or after the Closing Date shall
first be applied to all rents due at the time of such collection with respect to
the period after the Closing Date with the balance payable to AJV to the extent
of delinquent rents apportioned to AJV as of the Closing Date; and, provided
further, that PRRP shall not be required to institute any proceeding to collect
any rents accrued and unpaid on the Closing Date. If AJV shall not have received
all accrued and unpaid rents due it as of the Closing Date within sixty (60)
days thereafter, AJV, at its sole cost and expense, shall be entitled to bring
such actions or proceedings not affecting possession or enforcing landlords'
liens as AJV shall desire to collect any such accrued and unpaid rents, and PRRP
shall cooperate (without any expense to PRRP) with AJV in any such action;
(viii) all charges and payments under the Service Contracts;
(ix) maintenance and operating supplies stored at the Property and, where
applicable, in unopened containers or in unbroken boxes, at AJV's cost therefor;
(x) all costs incurred in securing Space Leases after the Date Hereof; and
(xi) all other proratable items and other income from and expense relating
to the Property.
(b) AJV shall furnish readings of the water, gas and electric meters located on
the Property, if any, other than meters measuring the computation of utilities
which are the direct responsibility of any tenant, to a date not more than
thirty (30) days prior to the Closing Date and the unfixed water rates and
charges, sewer taxes and rents and gas and electricity charges, if any, based
thereon for the intervening time shall be apportioned on the basis of such last
readings. If such readings are not obtainable by the Closing Date, then, at the
Closing, any water rates and charges, sewer taxes and rents and gas and
electricity charges which are based on such readings shall be prorated based
upon the per diem charges obtained by using the most recent period for which
such readings shall then be available. Upon the taking of subsequent actual
readings, the apportionment of such charges shall be recalculated and AJV or
PRRP, as the case may be, promptly shall make a payment to the other based upon
such recalculation.
(c) The amount of any unpaid real property taxes and assessments, water rates
and charges and sewer taxes and rents which AJV is obligated to pay and
discharge may, at the option of AJV, be deducted by PRRP from the cash balance
of the Consideration, provided that official bills therefor, indicating the
interest and penalties, if any, thereon, are furnished by AJV at the Closing.
(d) if any refund of real property taxes or assessments, water rates and charges
or sewer taxes and rents shall be made after the Closing, the same shall be held
in trust by AJV or PRRP, as the case may be, and shall first be applied to the
unreimbursed costs incurred in obtaining the same, then paid to any tenant at
the Property who is entitled to the same and the balance, if any, shall be paid
to AJV (with respect to the period prior to the Closing Date) and to PRRP (with
respect to the period commencing with the Closing Date).
(e) if at the Closing Date the Property or any part thereof shall be or shall
have been affected by any special or general assessment or assessments of real
property taxes which are or may become payable in installments of which the
first installment is then a charge or lien and has become payable, AJV shall pay
or cause to be paid the unpaid installments of such assessments due prior to the
Closing Date and PRRP shall pay or cause to be paid all installments which are
due on or after the Closing Date. The current installments shall be apportioned
at the Closing.
(f) In the event the apportionments hereinabove provided which are to be made at
the Closing result in a credit balance (i) to PRRP, such sum shall be paid at
the Closing, by giving PRRP a credit against the balance of the Consideration in
the amount of such credit balance or (ii) to AJV, PRRP shall pay the amount
thereof to AJV at the Closing by wire transfer of immediately available funds to
the account or accounts designated by AJV for the balance of the Consideration.
(g) if any proceeding for certiorari or other proceeding to determine the
assessed value of the Property or the real property taxes payable with respect
to the Property shall have been commenced prior to the Date Hereof and be
continuing as of the Closing Date, PRRP shall cooperate with AJV in the
prosecution of such proceeding or proceedings to completion and in the
settlement or compromise of any claim therein. PRRP agrees to cooperate with
AJV and to execute any and all documents reasonably required in furtherance of
the foregoing.
SECTION 4.05. Apportionment of Rents. If any rents (including cost
reimbursement payments) are payable or accruable under the Space Leases on the
basis of estimates or formulae and/or are subject to adjustment or determination
after the Closing Date, such rents shall be apportioned at the Closing to the
extent collected on the basis of the then current charges or accruals, as
applicable, and shall be subject to reapportionment on the basis of the amounts
as finally determined to be owing under the Space Leases. Any reapportionment
shall occur promptly after the final determination of the amount of rents owing
under the Space Leases. Apportionment of escalation rent shall be made on the
basis of a 365 day year and the actual number of days elapsed.
SECTION 4.06. Survival. The obligations of the parties under Section 4.04 and
Section 4.05 shall survive the Closing.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. AJV's Representations and Warranties. As used herein and
elsewhere in this Agreement, the phrases referring to (i) the "actual knowledge"
of AJV shall refer to the actual knowledge of Xxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxx
Xxxxxxx or Xxx Xxxxxxx (the "Specified Individuals") and the actual knowledge of
any other person or any knowledge which would be imputed to any of those
person[s] or to AJV as a matter of law shall not be deemed to be covered by
those phrases and (ii) AJV not receiving any written notice shall mean that AJV
has not received originals or copies at its offices at 000 Xxxxxxxxxx, Xxxxx
0000 Xxxxxxx, Xxxxx, 00000, AJV's main mailing address for notices of the
subject matter referred to in the representation or at AJV's office maintained
at the Property. AJV hereby represents and warrants that the Specified
Individuals are the only individuals employed by AJV or any of its affiliates
who have day-to-day management, supervisory and executive authority over the
Property.
AJV hereby represents and warrants to PRRP, subject to Sections 5.04 and 5.05
hereof, that:
(a) AJV is a partnership duly formed and validly existing in good standing under
the laws of the State of Florida.
(b) This Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of AJV and, upon
the assumption that this Agreement constitutes a legal, valid and binding
obligation of PRRP, this Agreement constitutes a legal, valid and binding
obligation of AJV.
(c) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by AJV do not and will not (i) violate or
conflict with the partnership agreement of AJV, (ii) violate or conflict with
any judgment, decree or order of any court applicable to or affecting AJV or the
Property, (iii) breach the provisions of, or constitute a default under, any
contract, agreement, instrument or obligation to which AJV is a party or by
which AJV or the Property is bound, or (iv) to AJV's actual knowledge, violate
or conflict with any law or governmental regulation or permit applicable to AJV
or the Property.
(d) AJV has not received written notice of any, and to AJV's actual knowledge
there is no, pending or threatened condemnation of all or any portion of the
Property.
(e) The Space Leases listed in Exhibit D constitute all of the leases and
occupancy agreements affecting the Property to which AJV is a party in effect on
the Date Hereof and, except as set forth on Exhibit D: (i) the Space Leases
have not been modified or amended, (ii) as of the Date Hereof, the Space Leases
are in force and effect, and constitute the valid and binding legal obligation
of AJV and, to AJV's actual knowledge, the respective tenant under a Space
Lease, are enforceable against each of them in accordance with their respective
terms subject to the effects on such enforceability of bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of creditor's rights
generally; and, except as previously disclosed to PRRP, AJV has not delivered
written notice to any tenant claiming that the tenant is in default under its
Space Lease, which default remains uncured, (iii) the brokerage agreements noted
on Exhibit Q are the only brokerage agreements related to the Space Leases to
which AJV is a party, and AJV has paid all amounts due thereunder, (iv) AJV has
delivered to PRRP true and complete copies of the Space Leases and brokerage
agreements, (v) AJV has complied with, paid, and performed all of its build-out
and tenant-improvement obligations with respect to the Space Leases, (vi) there
are no understandings, oral or written, between the parties to any Space Lease
which in any manner vary the obligations or rights of either party; and (vii) no
rent or additional rent under a Space Lease has been paid for more than thirty
(30) days in advance of its due date.
(f) No security deposits have been paid to AJV by or on behalf of any of the
tenants except as set forth in Exhibit E.
(g) Attached hereto as Exhibit F is a list of all service, maintenance, supply
and management contracts affecting the Property in effect on the Date Hereof
(the "Service Contracts"), and except as set forth on Exhibit F ,(i) the Service
Contracts have not been modified or amended and are in force and effect, (ii)
AJV has delivered to PRRP true and complete copies of the Service Contracts, and
(iii) AJV is not, and to AJV's actual knowledge the other parties thereto are
not, in default thereunder.
(h) To AJV's actual knowledge, attached hereto as Exhibit G is a list of all
licenses and permits from governmental authorities held by AJV and required as
of the Date Hereof in connection with AJV's ownership and operation of the
Property (collectively, the "Licenses and Permits") and AJV has delivered to
PRRP true and complete copies of the Licenses and Permits that are in AJV's
possession. To AJV's actual knowledge, all Licenses and Permits 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.
(i) AJV is not a "foreign person" as defined in the Federal Foreign Investment
in Real Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended.
(j) AJV has received no written notice of, and to AJV's actual knowledge, there
are no, pending or threatened investigations, actions, suits, proceedings or
claims against or affecting AJV 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 except those
which are covered by insurance.
(k) AJV has not received from any governmental authority any written notice that
AJV is not in compliance in any 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. AJV has not received from any insurance company
or Board of Fire Underwriters any written notice, which remains uncured, of any
defect or inadequacy in connection with the Property or its operation.
(l) To AJV's actual knowledge, neither AJV nor any other party is in material
default under any contract or agreement 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 AJV or any other party
thereto. To AJV's actual knowledge, AJV 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.
(m) All real property taxes, and all AJV'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 AJV'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.
(n) (i) AJV 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
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); (ii)
to AJV'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 AJV'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 AJV's actual knowledge, no Hazardous Materials have migrated from the
Property upon or beneath other properties; and (v) to AJV'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 Florida 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.
(o) Intentionally deleted.
(p) AJV has no employees who will have any rights to employment at the Property
after Closing.
(q) To AJV's actual knowledge, all bills and claims for labor performed and
materials furnished to or for the benefit of the Property currently due and
contracted for by AJV or its manager have been paid in full.
(r) To AJV's actual knowledge, the financial statements delivered by AJV to
PRRP, in all material respects, accurately reflect all rents and other gross
receipts, and all amounts paid by AJV 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.
(s) To AJV's actual knowledge, no representation or warranty of AJV in this
Agreement, or any information, statement or certificate furnished or to be
furnished by AJV or at AJV'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 in any material respect. To AJV's actual knowledge, there is no
material misstatement or omission in the copies of contracts, agreements and
other documents delivered by AJV in connection with the transactions
contemplated hereby. provided, however, that, with respect solely to any
representation or warranty that is not qualified as being to AJV's "actual
knowledge" (as defined in Section 5.01 of this Agreement) AJV shall have no
liability for any untrue or incorrect representation or warranty of AJV which
survives the Closing unless and until the aggregate amount of PRRP's monetary
damages arising directly out of all such breaches shall exceed One Hundred
Thousand Dollars ($100,000.00).
(t) 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
AJV as lessee.
SECTION 5.02. PRRP's Representations and Warranties. PRRP hereby represents
and warrants to AJV that:
(a) PRRP is a limited partnership duly organized and validly existing and in
good standing under the laws of the State of California.
(b) This Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of PRRP and, upon
the assumption that this Agreement constitutes a legal, valid and binding
obligation of AJV, this Agreement constitutes a legal, valid and binding
obligation of PRRP.
(c) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate or conflict
with PRRP's Partnership Agreement, (ii) violate or conflict with any judgment,
decree or order of any court applicable to or affecting PRRP, (iii) breach the
provisions of, or constitute a default under, any contract, agreement,
instrument or obligation to which PRRP is a party or by which PRRP is bound, or
(iv) violate or conflict with any law or governmental regulation or permit
applicable to PRRP.
SECTION 5.03. Certain Limitations on AJV's Representations and Warranties. The
representations and warranties of AJV are set forth in Section 5.01 and are
subject to the following express limitations:
(a) AJV does not represent or warrant that any particular Space Lease or Service
Contract will be in force or effect as of the Closing, or that any tenant or
party, other than AJV, to the Service Contracts, will not be in default under
their respective Space Leases or Service Contracts; and
(b) In the event that any representation or warranty made by AJV in Section 5.01
of this Agreement shall conflict or be inconsistent with any of the written Due
Diligence Information as that AJV has delivered to PRRP pursuant to this
Agreement and the Exhibits referenced in this Agreement then such
representations and warranties shall be deemed modified to conform them to the
provisions of such documents and materials.
SECTION 5.04. Survival of Representations and Warranties.
(a) The only representations, warranties and agreements of AJV hereunder that
will survive the Closing are those that are specifically stated herein to
survive. All of the representations and warranties of AJV set forth in Section
5.01 will survive the Closing, provided, that any claim based upon any alleged
breach thereof must be asserted in writing within six (6) months after the
Closing; provided however, that in the event PRRP makes a written claim against
AJV with respect to any representation or warranty prior to the date which is
six (6) months after the Closing Date, than such representation or warranty
shall survive without limitation as to such written claim.
(b) The only representations, warranties and agreements of PRRP hereunder that
will survive the Closing are those that are specifically stated herein to
survive. All of the representations, warranties and agreements of PRRP set
forth in Section 5.02 of the Agreement will survive the Closing, provided, that
any claim based upon any alleged breach thereof must be asserted in writing
within six (6) months after the Closing; provided however, that in the event AJV
makes a written claim against PRRP with respect to any representation or
warranty prior to the date which is six (6) months after the Closing Date, than
such representation or warranty shall survive without limitation as to such
written claim.
SECTION 5.05. No Other Representations or Warranties. (a) PRRP represents,
warrants and agrees that (i) PRRP has examined the Property and is familiar with
the physical condition thereof and has conducted such investigation of the
affairs of the Property as PRRP has considered appropriate, (ii) neither AJV nor
any of the employees, agents or attorneys of AJV have made any verbal or written
representations, warranties, promises or guaranties whatsoever to PRRP, whether
express or implied, and, in particular, that no such representations,
warranties, promises or guaranties have been made with respect to the physical
condition or operation of Property, the actual or projected revenue and expenses
of the Property, the zoning and other laws, regulations and rules applicable to
the Property or the compliance of the Property therewith, the quantity, quality
or condition of the articles of personal property and fixtures included in the
transactions contemplated hereby, the use or occupancy of the Property or any
part thereof or any other matter or thing affecting or related to the Property
or the transactions contemplated hereby, except as, and solely to the extent,
herein specifically set forth in this Agreement or in any written amendments
hereto and (iii) PRRP has not relied upon any such representations, warranties,
promises or guaranties or upon any statements made in any informational brochure
with respect to the Property and has entered into this Agreement after having
made and relied solely on the representations and warranties set forth herein
and on its own independent investigation, inspection, analysis, appraisal,
examination and evaluation of the facts and circumstances.
(b) Subject to the representations and warranties of AJV set forth explicitly
herein, PRRP agrees to accept the Property "AS IS" in its present condition,
subject to reasonable use, wear, tear and natural deterioration of the Property
between the Date Hereof and the Closing Date and further agrees that AJV shall
not be liable for any latent or patent defects in the Property.
(c) As used herein, references to the "actual knowledge "of PRRP shall refer to
the actual knowledge of Xxxxxx Xxxxxxxx or Xxxxxx X. Xxxxxxxx and the actual
knowledge of any other person or any knowledge which would be imputed to any of
those person[s] or to PRRP as a matter of law shall not be deemed to be covered
by the phrase "actual knowledge". PRRP acknowledges that it will inspect all of
the documents referred to in this Agreement as having been delivered or
furnished to PRRP for inspection on or prior to the expiration of the Due
Diligence Period. Notwithstanding anything to the contrary provided in this
Agreement, in the event PRRP shall have actual knowledge as of the time of
Closing that any of AJV's representations or warranties are false or misleading,
but shall elect to proceed to close this transaction notwithstanding such false
or misleading representation or warranty, PRRP shall be deemed to have waived
any claim it may have against AJV with respect to such misrepresentation or
breach of warranty unless such misrepresentation or breach of warranty was
intentional.
ARTICLE 6
Intentionally omitted
ARTICLE 7
COVENANTS OF PRRP
SECTION 7.01. Covenants of PRRP. PRRP acknowledges that all information in
respect of the Property furnished to PRRP is and has been so furnished on the
condition that PRRP maintain the confidentiality thereof. Accordingly, PRRP
shall, and shall cause its directors, officers and other personnel and
representatives to, hold in strict confidence, and not disclose to any other
party without the prior written consent of AJV until the Closing shall have been
consummated, any of the information in respect of the Property delivered to PRRP
by AJV or any of its agents, representatives or employees. In the event the
Closing does not occur and this Agreement is terminated, PRRP shall promptly
return to AJV all copies of all such information without retaining any copy
thereof or extract therefrom. Notwithstanding anything to the contrary
hereinabove set forth, PRRP may disclose such information (i) on a need-to-know
basis to its employees or members of professional firms serving it in connection
with this transaction, (ii) as is requested by a reputable institutional lender
in connection with its financing of the purchase of the Property, and (iii) as
may be required under applicable laws or regulations. Notwithstanding the
foregoing, AJV acknowledges that PRRP is a public company and therefore may
disclose such aspects of the transactions contemplated hereunder as PRRP's
counsel may determine is necessary or appropriate in order to comply with
federal and state securities laws.
ARTICLE 8
intentionally omitted
ARTICLE 9
INDEMNITIES
SECTION 9.01. Indemnification Generally. (a) Whenever it is provided in this
Agreement or in any agreement or document delivered pursuant hereto that a party
shall indemnify another party hereunder against liability or damages, such
phrase and words of similar import shall mean that the indemnifying party hereby
agrees to and does indemnify, defend and hold harmless the indemnified party and
such party's direct and indirect shareholders or partners and their respective
past, present and future officers, directors, employees and agents from and
against any and all claims, damages, losses, liabilities and expenses
(including, without being limited to, reasonable attorneys' fees and
disbursements) to which they or any of them may become subject or which may be
incurred by or asserted against any or all of them attributable to, arising out
of or in connection with the matters provided for in such provision.
(b) If any action, suit or proceeding is commenced, or if any claim, demand or
assessment is asserted in respect of which party is indemnified hereunder or
under any agreement or document delivered pursuant hereto, the indemnified party
shall give notice thereof to the indemnifying party and the indemnifying party
shall be entitled to control the defenses, compromise or settlement thereof, at
its own cost and expense, with counsel reasonably satisfactory to the
indemnified party, and the indemnified party shall cooperate fully and make
available to the indemnifying party such information under its control or in its
possession relating thereto and may, at its own cost and expense, participate in
such defense.
ARTICLE 10
BROKER
SECTION 10.01. Broker. (a) AJV represents and warrants to PRRP that it has
not hired, retained or dealt with any broker, finder, consultant or intermediary
in connection with the negotiation, execution or delivery of this Agreement or
the transaction contemplated hereby other than Sonnenblick Xxxxxxx (the
"Broker"). AJV will indemnify PRRP against liability arising out of any claim
that the aforesaid representation and warranty is untrue. AJV shall pay a
commission to the Broker pursuant to a separate agreement between AJV and the
Broker unless PRRP is obligated to pay same pursuant to Section 1.02 hereof, in
which case PRRP shall pay such commission.
(b) PRRP represents and warrants to AJV that it has not hired, retained or dealt
with any broker, finder, consultant or intermediary in connection with the
negotiation, execution or delivery of this Agreement or the transactions
contemplated hereby except the Broker. PRRP will indemnify AJV against
liability arising out of any claim that the aforesaid representation and
warranty is untrue.
(c) In the event of a claim for a broker's fee, finder's fee, commission or
other similar compensation in connection herewith, (i) PRRP, if such claim is
based upon any agreement alleged to have been made by PRRP, hereby agrees to
reimburse AJV for any liability, loss, cost, damage or expense (including
reasonable attorneys' and paralegals' fees and costs) which AJV may sustain or
incur by reason of such claim and (ii) AJV, if such claim is based upon any
agreement alleged to have been made by AJV, hereby agrees to indemnify, defend,
protect and hold PRRP harmless against any and all liability, loss, cost, damage
or expense (including reasonable attorneys' and paralegals' fees and costs)
which PRRP may sustain or incur by reason of such claim.
(d) The provisions of this Section 10.01 shall survive the Closing and any
termination of this Agreement.
ARTICLE 11
REMEDIES
SECTION 11.01. Remedies
Each of the parties hereto shall have such remedies as are provided for under
the terms of this Agreement or available to such party at law or in equity and
the event of a default by the other party in the performance of its obligations
under this Agreement.
ARTICLE 12
NOTICES
SECTION 12.01. Notices. Any and all notices, elections, demands, requests and
responses thereto permitted or required 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 if to PRRP:
The Price REIT Renaissance Partnership, L.P.
c/o The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Avenue
Fourth Floor
Los Angeles, CA 90036
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
if to AJV:
Altamonte Joint Venture
x/x Xxxx Xxxxxxxxxxx Xxxxxxxxxxx
0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile Number: (000) 000-0000
with a copy to:
Altamonte Joint Venture
c/o Related Retail Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
If to Escrowee:
Chicago Title Company
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile Number: (000) 000-0000
or such other address as each respective party may from time to time specify in
writing to the other in the manner aforesaid. Counsel for any party may give
notices to the other party with the same effect as if given by the party.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.01. Acceptance of the Premises. The acceptance of the deed to the
Property by PRRP shall be deemed an acknowledgment by PRRP that AJV has fully
complied with all of its obligations hereunder and that AJV is discharged
therefrom and that AJV shall have no further obligation or liability with
respect to any of the agreements made by AJV in this Agreement, except for those
provisions of this Agreement which expressly provide that an obligation of AJV
shall survive the Closing
SECTION 13.02. Press Release. AJV and PRRP each agrees that it will not issue
any press release, advertisement or other public communication with respect to
this Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except to the extent required by law. If AJV
or PRRP is required by law to issue such a press release or other public
communication, at least one (1) business day prior to the issuance of the same
such party shall deliver a copy of the proposed press release or other public
communication to the other party hereto for its review.
SECTION 13.03. Assignment. Except as provided herein, AJV's interest under
this Agreement may not be assigned, encumbered or otherwise transferred whether
voluntarily, involuntarily, by operation of law or otherwise, in whole or in
part, without the prior written consent of PRRP. Any assignment without such
prior written consent shall be deemed null and void. Notwithstanding, the
foregoing, AJV shall have the right, without obtaining PRRP's consent, to assign
its rights under this Agreement for the purpose of implementing the terms and
provisions contained in Section 13.21. Such assignment may include the transfer
by AJV of its rights under this Agreement together with its ownership of the
Property to one or more existing or newly created entities owned or controlled
by AJV or its general partners or affiliates. Any such transfer of the Property
shall be made subject to this Agreement. Except with respect to a subsidiary of
PRRP, PRRP's interest under this Agreement may not be assigned, encumbered or
otherwise transferred whether voluntarily, involuntarily, by operation of law or
otherwise, in whole or in part, without the prior written consent of AJV.
Except with respect to a subsidiary of PRRP, any assignment without such prior
written consent shall be deemed null and void. Subject to and without limiting
the preceding four sentences, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
SECTION 13.04. Binding Effect. This Agreement does not constitute an offer to
make the contribution contemplated by this Agreement shall not bind AJV unless
and until AJV elects to be bound hereby by executing and delivering to PRRP an
executed original counterpart hereof in accordance with the terms of this
Agreement.
SECTION 13.05. Partial Invalidity. If any term or provision of this Agreement
or the application thereof to any persons or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
SECTION 13.06. Recordation of Agreement. Neither AJV nor PRRP may record this
Agreement. The provisions of this Section 13.06 shall survive the termination
of this Agreement.
SECTION 13.07. Entire Agreement. This Agreement, together with the exhibits
hereto, constitutes the entire agreement of the parties regarding the
transaction specifically described herein and supersedes all prior or
contemporaneous agreements, understandings, representations and statements, oral
or written, between the parties hereto relating to the specific subject matter
hereof.
SECTION 13.08. Further Assurances. The parties agree to mutually execute and
deliver to each other, at the Closing, such other and further documents as may
be reasonably required by counsel for the parties to carry into effect the
purposes and intents of this Agreement, provided such documents are customarily
delivered in real estate transactions in the City of Orlando and do not impose
any material obligations upon any party hereunder except as set forth in this
Agreement.
SECTION 13.09. Enforcement. In the event either party hereto fails to perform
any of its obligations under this Agreement or in the event a dispute arises
concerning the meaning or interpretation of any provision of this Agreement, the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses reasonably incurred by the other
party in enforcing or establishing its rights hereunder, including, without
being limited to, court costs and reasonable attorneys' fees.
SECTION 13.10. Amendment. This Agreement may not be modified, amended, altered
or supplemented except by a written instrument executed by the party to be
bound.
SECTION 13.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed wholly within said State.
SECTION 13.12. Exhibits. All Exhibits referred to in this Agreement are
incorporated herein and made a part hereof as fully as if set forth herein.
SECTION 13.13. No Waiver. The failure of any party hereto to enforce at any
time any of the provisions of this Agreement shall in no way be construed as a
waiver of any of such provisions, or the right of any party thereafter to
enforce each and every such provision. No waiver of any breach of this Agreement
shall be held to be a waiver of any other or subsequent breach.
SECTION 13.14. Headings; Article, Section and Exhibit
References/Interpretation. The Article and Section headings used herein are for
reference purposes only and do not control or affect the meaning or
interpretation of any term or provision hereof. All reference in this Agreement
to Articles, Sections and Exhibits are to the Articles and Sections hereof and
the Exhibits annexed hereto. 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.
SECTION 13.15. No Other Parties. 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.
SECTION 13.16. 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 PRRP and AJV. The
partnership agreement of PRRP, as amended from time to time, shall be the sole
document governing any partnership of the parties thereto.
SECTION 13.17. 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.
SECTION 13.18. Time of the Essence. Time is of the essence in this Agreement
and with respect to all of its terms.
SECTION 13.19. Audit Cooperation. AJV hereby agrees to cooperate with PRRP, at
PRRP's sole cost and expense, in producing audited financial statements for the
Property for such periods as may be requested by PRRP. Such cooperation shall
include, without limitation, the execution and delivery by AJV to PRRP's
auditors of such confirmations and letters as such auditors may reasonably
require.
SECTION 13.20. Radon Gas Disclosure. Radon gas is a naturally occurring
radioactive gas that, when accumulated in a building in sufficient quantities
may present health risks to persons who are exposed to it over a period of time.
Levels of Radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon testing
may be obtained from the Seminole County Health Department.
SECTION 13.21. AJV's Waivers and Release. AJV understands and acknowledges
that New Lender is the general partner of PRRP. AJV and its constituent
partners, agents, representatives, and any of their successors and assigns
(collectively, "AJV Parties") forever generally and fully release and discharge
PRRP and New Lender from any and all rights, actions claims, demands, costs
contracts, allegations, liabilities, obligations, damages and causes of action,
whether known or unknown, suspected or unsuspected, whether in law or equity,
which the AJV Parties, and each of them, had or now has or may have against PRRP
or New Lender, from the beginning of time relating to the relationship between
PRRP, AJV Parties and New Lender in respect of the Existing Loan, as amended,
including, without limitation, (i) any right to object to a foreclosure or deed
in lieu of foreclosure on the grounds that New Lender or its successors or
assigns could acquire the Property or (ii) any claims or rights regarding
fiduciary duties which may be owed to AJV or the AJV Parties by the New Lender
by virtue of AJV's acceptance of Partnership Units in PRRP or otherwise
(collectively, "Released Claims").
It is the intention of the parties hereto in executing this Agreement that this
Agreement shall be effective as a bar, as to each and every one of the AJV
Parties, and each of them, with regard to the Released Claims. In furtherance
of this intention, the AJV Parties hereby expressly waive any and all rights and
benefits conferred by the provisions of Section 1542 of the California Civil
Code, and by any similar provision of state or Federal law now in effect or in
effect in the future, and expressly consent that this Agreement shall be given
full force and effect according to each and all of its express terms and
conditions, including those relating to unknown and unsuspected claims, demands
and causes of action specified above. Section 1542 of the California Civil Code
provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
The provisions of this Section 13.21 shall survive the Closing and any
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first set forth above.
PRRP: AJV:
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and a general partner
its general partner therein
By: /XXXXXX XXXXXXXXXX/ By: RIDA Realty Investments of
------------------- Florida, Inc., a Florida
Name: Xxxxxx Xxxxxxxxxx corporation and a general
Title: President partner therein
By: /XXX XXXXXXX/
-------------
Name: Xxx Xxxxxxx
Title: Vice President
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By: /XXX XXXXXXX/
-------------
Name: Xxx Xxxxxxx
Title: Vice President
Exhibit A
DESCRIPTION OF LAND
Exhibit A-2
CONSIDERATION
The aggregate number of Partnership Units (rounded down to the nearest whole
number) that AJV shall be entitled to receive on the Closing Date shall be
267,000.
Exhibit B
ESCROW PROVISIONS
(a) The parties hereto agree that:
(i) The duties of Escrowee are only as herein specifically provided, and except
for the provisions of Section (c) hereof, are purely ministerial in nature, and
Escrowee shall incur no liability whatever except for its willful misconduct or
gross negligence;
(ii) In the performance of its duties hereunder, Escrowee shall be entitled to
rely upon any document, instrument or signature believed by it to be genuine and
signed by any of the other parties or their successors;
(iii) Escrowee may assume that any person purporting to give notice or
instructions in accordance with the provisions hereof has been duly authorized
to do so;
(iv) Escrowee shall not be bound by any modification, cancellation or rescission
of this Agreement unless in writing and signed by AJV and PRRP;
(v) Except as provided in (i) hereof, AJV and PRRP shall and hereby do jointly
and severally indemnify Escrowee and hold it harmless from and against any loss,
liability, cost or expenses incurred in connection herewith, including without
limitation, reasonable attorneys' fees and disbursements, incurred without
willful misconduct or gross negligence on the part of Escrowee, arising out of
or in connection with its acceptance of, or the performance of its duties and
obligations under, this Agreement, as well as the reasonable costs and expenses
of defending itself against any claim or liability arising out of or relating to
this Agreement; and
(vi) AJV and PRRP each hereby release Escrowee from any liability for or in
connection with any act done or omitted to be done by Escrowee in good faith in
the performance of its duties hereunder without willful misconduct or gross
negligence on the part of Escrowee. Nor shall Escrowee be liable for any loss
or impairment of funds while those funds are in the course of collection or
while those funds are on deposit if such loss or impairment results from the
failure, insolvency or suspension of the financial institution in which the
funds are deposited.
(c) Escrowee is acting as stakeholder only with respect to any escrowed funds.
If there is any dispute as to whether Escrowee is obligated to deliver such
funds or as to whom said funds are to be delivered, Escrowee shall not be
required to make any delivery, but in such event Escrowee may hold the same
until receipt by Escrowee of written authorization signed by AJV and PRRP
directing the disposition of the funds and any interest accrued thereon until a
final determination of the rights of the parties in an appropriate proceeding.
If such written authorization is not given, or proceedings for such
determination are not begun within thirty (30) days after a dispute arises and
diligently continued, Escrowee may, bring an appropriate action or proceeding
for leave to deposit such funds and any interest accrued thereon in a court of
competent jurisdiction pending such determination. Escrowee shall be reimbursed
for all reasonable costs and expenses of such action or proceeding including,
without limitation, attorney's fees and disbursements, by the party determined
not be entitled to such funds, or if such funds are split between the AJV and
PRRP, such costs incurred by Escrowee shall be divided between and paid by AJV
and PRRP in inverse proportion based upon the amount of such funds received by
each. Upon making delivery of such funds and interest accrued thereon in the
manner provided in this Agreement, Escrowee shall have no further liability
hereunder.
Exhibit C
Investment Representation Letter
August , 1997
The Price REIT Renaissance Partnership, L.P.
c/o The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Avenue
Fourth Floor
Los Angeles, CA 90036
Attn.: Xxxxxx Xxxxxxxxxx
Ladies and Gentlemen:
The undersigned hereby represents, warrants, covenants, acknowledges and agrees
as follows:
(a) The undersigned is acquiring units of limited partnership (the "Partnership
Units") in The Price REIT Renaissance Partnership, L.P., a California limited
partnership (the "Partnership"), for the undersigned's own account for the
purpose of investment and not as a nominee or agent for any person, and not with
a view to the resale, pledge or distribution thereof.
(b) The Partnership Units have not been registered under the Securities Act of
1933, as amended (the "Securities Act").
(c) Except as otherwise provided in the partnership agreement of the
Partnership, as same may be amended or modified from time to time (the
"Partnership Agreement"), the Partnership Units, or any portion thereof, may
not, directly or indirectly, be offered, transferred, sold, assigned, pledged,
hypothecated or otherwise disposed of (each, a "Transfer") by the undersigned,
other than pursuant to the exchange rights with respect to the Partnership Units
as set forth in the Partnership Agreement.
(d) This letter is being delivered in connection with the that certain
Contribution Agreement dated as of August 28, 1997 by and between the
Partnership and the undersigned (the "Contribution Agreement") and shall be
construed and interpreted consistently therewith. The undersigned has read and
reviewed the information which the Contribution Agreement describes as the
Disclosure Statement. The undersigned acknowledges that the undersigned
understands the restrictions on transfer described in such information.
(e) At the time of issuance or transfer of the Partnership Units to the
undersigned, the undersigned is (check all appropriate boxes):
a partnership, corporation, Massachusetts or similar business trust or an
employee benefit plan that has total assets in excess of $5,000,000 and was not
formed for the purpose of acquiring the Partnership Units; or
a natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000; or
a natural person who had an individual income in excess of $200,000 in each
of the two most recent years or joint income with that person's spouse in excess
of $300,000 in each of those years and has a reasonable expectation of reaching
the same income level in the current year; or
a trust with total assets in excess of $5,000,000, not formed for the
purpose of acquiring the Partnership Units, whose issuance or transfer of such
shares is directed by a sophisticated person as described in Rule 506(b)(2)(ii)
under the Securities Act; or
an entity in which all of the equity owners are persons or entities that
meet the descriptions set forth above.
(f) The undersigned is knowledgeable, sophisticated and experienced in business
and financial matters and fully understands the limitations on transfer of the
Partnership Units described in this letter and the Partnership Agreement. The
undersigned is able to bear the economic risk of holding the Partnership Units
for an indefinite period and is able to afford the complete loss of his or its
investment in the Partnership Units; the undersigned has been given the
opportunity to obtain any additional information or documents and to ask
questions and receive answers about such documents, the Partnership and the
business and prospects of the Partnership which the undersigned deems necessary
to evaluate the merits and risks related to his or its investment in the
Partnership Units.
(g) The undersigned acknowledges that he, she or it has been advised that (i)
except as expressly provided in the Partnership Agreement, the Partnership Units
must be held indefinitely, and the undersigned must continue to bear the
economic risk of the investment in the Partnership Units unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available, (ii) it is not anticipated that there will be any
public market for the Partnership Units, (iii) Rule 144 promulgated under the
Securities Act is not available with respect to the sale of any securities of
the Partnership, and the Partnership has made no covenant to make such Rule
available, (iv) a restrictive legend in the form hereafter set forth shall be
placed on the certificates or instruments representing the Partnership Units,
and (v) a notation shall be made in the appropriate records of the Partnership
indicating that the Partnership Units are subject to restrictions on transfer.
(h) Each certificate or instrument representing Partnership Units shall bear the
following legend:
"THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES
WITH THE PROVISIONS OF AN AGREEMENT OF LIMITED PARTNERSHIP, DATED AS OF August
[21], 1997, AS THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO TIME (A COPY OF
WHICH IS ON FILE WITH THE PRICE REIT, INC.). EXCEPT AS OTHERWISE PROVIDED IN
SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1993, AS AMENDED (THE "SECURITIES ACT") OR (B) IF THE OPERATING PARTNERSHIP HAS
BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT AND THE RULES AND
REGULATIONS IN EFFECT THEREUNDER."
(i) The undersigned has reviewed the Partnership Agreement, and understands that
the undersigned will be bound by its terms. The undersigned further confirms
that upon the execution and delivery of the Partnership Agreement or an
amendment thereto, such agreement will be a valid and binding obligation of the
undersigned, enforceable in accordance with its 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.
The undersigned acknowledges that any sale, pledge or transfer of the
Partnership Units in violation of this letter will be null and void and the
certificates representing the Partnership Units will bear an appropriate
restrictive legend. The undersigned also acknowledges that it is impossible to
measure in money the damages which will accrue to the Partnership by reason of
a failure of the undersigned to comply with the provisions of this letter.
Therefore, if the Partnership shall institute any action or proceeding to
enforce the provisions hereof, the undersigned agrees that the Partnership shall
be entitled to injunctive relief, and the undersigned waives, and shall not
allege, any claim or defense to such action or proceeding, including, without
limitation, any claim or defense that the undersigned has an adequate remedy at
law.
Very truly yours,
ALTAMONTE JOINT VENTURE,
a Florida general partnership
By: RIDA Renaissance Limited Partnership,
a Florida limited partnership and a general
partner therein
By: RIDA Realty Investments of Florida,
Inc., a Florida corporation and a
general partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Exhibit D
SPACE LEASES
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Lessee
--------- ------
- - - - Vision Works
000 X. Xxxxxxxxx Xxxxx:
Space No. Lessee
--------- ------
1000 Boater's World
1010 Rida Realty Investments of Florida
1040 Leather Center
1100 Xxx Xxxxxx Maternity
1120 Gingiss Formalwear
1140 Photomagic
1180 Orlando Magic
1200 Upton's
1250 Blockbuster Video
1300 Bookstop
1425 Artizan Hair Salon
1550 Differents
1600 Loudon Jewelers
1700 Factory Brand Shoes
1800 General Cinema
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Lessee
--------- ------
1000 Casual Male
1500 Dreyfus
1700 Xxx. XxXxxxxx'x Pies
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Lessee
--------- ------
1000 Xxxx Stores
1600 Xxxx South
1750 Michael's Arts and Crafts
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Lessee
--------- ------
1000 Chili's
1200 Bagel Town
1400 Ann's Tailors
1500 Portfolio Furniture
Exhibit E
SECURITY DEPOSITS
TENANT SECURITY DEPOSIT
------ ----------------
Ann's Tailors 1,507.50
Artizan Beauty Salon 3,237.50
Bagel Town 3,098.75
BellSouth Mobility - 0 -
Xxx Xxxxxx Maternity 2,000.00
Differents 2,477.05
Leather Center 9,900.00
Loudoun Jewelers 1,900.00
Xxx. XxXxxxxx'x Pies 2,187.00
Orlando Magic/Magic Fanatic 3,875.00
Photo Magic of Altamonte 1,900.00
Yum Yum's Ice Cream 2,980.91
------------
Total Security Deposits $ 35,063.71
Exhibit F
SERVICE CONTRACTS
1. Contract between Altamonte Joint Venture and The Wackenhut Corporation.
2. Contract between Altamonte Joint Venture and Sundown Sweeping Services.
3. Contract between Altamonte Joint Venture and Answer Tel Answering Service.
4. Contract between Altamonte Joint Venture and R & J Associates Landscaping
and Lawncare.
5. Contract between Altamonte Joint Venture and Waste Management of Orlando.
6. Contract between Altamonte Joint Venture and Nutech Engineering.
7. Contract between Altamonte Joint Venture and Xxxx Pumping Systems.
Exhibit G
LICENSES AND PERMITS
1. Certificates of Occupancy: (Please Note: All Certificates of Occupancy are
held by each of the tenant occupants in its respective names and are not held by
Landlord).
000 Xxxx Xxxxxxxxx Xxxxx: Vision Works
000 X. Xxxxxxxxx Xxxxx:
Space No. Current Holder
--------- --------------
1000 Boater's World
1010 Rida Realty Investments of Florida
1040 Leather Center
1100 Xxx Xxxxxx Maternity
1120 Gingiss Formalwear
1140 Photomagic
1180 Orlando Magic
1200 Upton's
1250 Blockbuster Video
1300 Bookstop
1425 Artizan Hair Salon
1550 Differents
1600 Loudon Jewelers
1700 Factory Brand Shoes
1800 General Cinema
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Current Holder
--------- --------------
1000 Casual Male
1500 Dreyfus
1700 Xxx. XxXxxxxx'x Pies
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Current Holder
--------- --------------
1000 Xxxx Stores
1600 Xxxx South
1750 Michael's Arts and Crafts
000 Xxxx Xxxxxxxxx Xxxxx:
Space No. Current Holder
--------- --------------
1000 Chili's
1200 Bagel Town
1400 Ann's Tailors
1500 Portfolio Furniture
2. Sales Tax License, Certificate Number 69-01-038888-82-2 Issued by Florida
Department of Revenue.
Exhibit H
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Altamonte Joint Venture, a Florida general
partnership, having an address at x/x Xxxx Xxxxxxxxxxx Xxxxxxxxxxx, 0000
Xxxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("AJV"), for Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, paid by The Price REIT Renaissance Partnership, L.P., a
California limited partnership, having an address at 000 Xxxxx Xxxxxxx Avenue,
Fourth Floor, Los Angeles, CA 90036 ("PRRP"), has bargained and sold and by
these presents does contribute, grant and convey unto PRRP without any express
or implied representation or warranty, its successors and assigns, all of AJV's,
right, title and interest in and to the fixtures, equipment and personal
property listed in Schedule 1 attached hereto and made a part hereof and all
right, title and interest of AJV in and to all other fixtures, equipment and
personal property, if any, owned by AJV and Attached to and used in the
operation of certain property known as and located at the Renaissance Centre,
000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxx (all of the foregoing being
hereinafter collectively referred to as the "Personal Property").
TO HAVE AND HOLD the Personal Property unto PRRP, its successors and assigns,
forever.
IN WITNESS WHEREOF, AJV has duly executed this Xxxx of Sale as of the day
of August, 1997.
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and a general partner
its general partner therein
By: By: RIDA Realty Investments of
Name: Florida, Inc., a Florida
Title: corporation and a general
partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1
to
Xxxx of Sale
Exhibit I
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS AGREEMENT, made this day of August, 1997, by and between Altamonte
Joint Venture, a Florida general partnership ("Assignor"), and The Price REIT
Renaissance Partnership, L.P., a California limited partnership ("Assignee").
W I T N E S S E T H
WHEREAS, by that certain Contribution Agreement (the "Contribution Agreement")
dated as of August 28, 1997, by and between Assignor and Assignee, Assignor has
agreed to contribute to Assignee on the Closing Date (as defined in the
Contribution Agreement), certain property known as the Renaissance Centre
located in Altamonte Springs, Florida, and more particularly described in the
Contribution Agreement; and
WHEREAS, Assignor desires to assign to Assignee as of the Closing Date
Assignor's interest in each and all of those certain leases set forth in
Schedule 1 annexed hereto (the "Leases"), and Assignee desires to accept such
assignment and assume the obligations of the landlord under the Leases as of the
Closing Date;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, sets over and transfers unto Assignee to have and
to hold from and after the date hereof all of the right, title and interest of
Assignor in, to and under the Leases, including, without limitation, all of the
right, title and interest of Assignor in and to any security deposits, prepaid
rent or other sums held by Assignor as the landlord under any of the Leases, and
Assignee hereby accepts the within assignment and assumes and agrees with
Assignor to perform and comply with and to be bound by all the terms, covenants,
agreements, provisions and conditions of the Leases on the part of the landlord
thereunder to be performed on and after the date hereof, in the same manner with
the same force and effect as if Assignee had originally executed the Leases as
landlord.
2. Assignor hereby unconditionally, absolutely and irrevocably agrees to
indemnify and hold Assignee harmless of, from and against any and all costs,
claims, obligations, damages, penalties, causes of action, losses, injuries,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, arising out of, in connection with or accruing under the Leases before the
date hereof.
3. Assignee hereby unconditionally, absolutely and irrevocably agrees to
indemnify and hold Assignor harmless of, from and against any and all costs,
claims, obligations, damages, penalties, causes of action, losses, injuries,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, arising out of, in connection with or accruing under the Leases on and
after the date hereof including, but not limited to, any such liabilities or
expenses arising in connection with any security deposits, prepaid rent or other
sums held by Assignee as the landlord under any of the Leases.
4. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and a general
its general partner partner therein
By: By: RIDA Realty Investments of
Name: Florida, Inc., a Florida
Title: corporation and a general
partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1
to
Assignment and Assumption of Leases
Exhibit J
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS AGREEMENT, made this day of August, 1997, by and between Altamonte
Joint Venture, a Florida general partnership ("Assignor"), and The Price REIT
Renaissance Partnership, L.P., a California limited partnership ("Assignee").
W I T N E S S E T H
WHEREAS, by that certain Contribution Agreement (the "Contribution Agreement")
dated as of August 28, 1997, by and between Assignor and Assignee, Assignor has
agreed to contribute to Assignee on the Closing Date (as defined in the
Contribution Agreement), certain property known as and located at the
Renaissance Centre located in Altamonte Springs, Florida, and more particularly
described in the Contribution Agreement (the "Property"); and
WHEREAS, Assignor desires to assign to Assignee as of the Closing Date
Assignor's interest in each and all of those certain service, maintenance,
supply and management contracts set forth on Schedule 1 annexed hereto (the
"Service Contracts"), and Assignee desires to accept such assignment and assume
the obligations of Assignor under the Service Contracts as of the Closing Date;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, sets over and transfers unto Assignee to have and to
hold from and after the date hereof all of the right, title and interest of
Assignor in, to and under the Service Contracts, and Assignee hereby accepts the
within assignment and assumes and agrees with Assignor to perform and comply
with and to be bound by all the terms, covenants, agreements, provisions and
conditions of the Service Contracts on the part of the owner of the Property
thereunder to be performed on and after the date hereof, in the same manner and
with the same force and effect as if Assignee had originally executed the
Service Contracts as the owner of the Property.
2. Assignor hereby unconditionally, absolutely and irrevocably agrees to
indemnify and hold Assignee harmless of, from and against any and all costs,
claims, obligations, damages, penalties, causes of action, losses, injuries,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, arising out of, in connection with or accruing under the Service Contracts
before the date hereof.
3. Assignee hereby unconditionally, absolutely and irrevocably agrees to
indemnify and hold Assignor harmless of, from and against any and all costs,
claims, obligations, damages, penalties, causes of action, losses, injuries,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, arising out of, in connection with or accruing under the Service Contracts
on and after the date hereof.
4. This Agreement shall not be construed as an express or implied
representation or warranty by Assignor as to the transferability of the Service
Contracts, and Assignor shall have no liability to Assignee in the event that
any or all of the Service Contracts (i) are not transferable to Assignee or (ii)
are canceled or terminated by reason of this assignment or any acts of Assignee.
5. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and a general partner
its general partner therein
By: By: RIDA Realty Investments of
Name: Florida, Inc., a Florida
Title: corporation and a general
partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1
to
Assignment and Assumption of Service Contracts
Exhibit K
ASSIGNMENT AND ASSUMPTION OF LICENSES AND PERMITS
THIS AGREEMENT, made this day of August, 1997, by and between Altamonte
Joint Venture, a Florida general partnership ("Assignor"), and The Price REIT
Renaissance Partnership, L.P., a California limited partnership ("Assignee").
W I T N E S S E T H :
WHEREAS, by that certain Contribution Agreement (the "Contribution Agreement")
dated as of August 28, 1997, by and between Assignor and Assignee, Assignor has
agreed to contribute to Assignee on the Closing Date (as defined in the
Contribution Agreement), certain property known as and located at the
Renaissance Centre located in Altamonte Springs, Florida and more particularly
described in the Contribution Agreement; and WHEREAS, Assignor desires to assign
and quitclaim to Assignee as of the Closing Date Assignor's interest in those
certain guaranties and warranties listed on Schedule 1 annexed hereto (the
"licenses and Permits"), and Assignee desires to accept such assignment and
assume the obligations, if any, of the holder, under the Licenses and Permits as
of the Closing Date;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Assignor does hereby assign and quitclaim unto Assignee to have and to hold
from and after the date hereof all of the right, title and interest of Assignor,
if any, in, to and under the Licenses and Permits, and Assignee hereby accepts
the within assignment and assumes the obligations, if any, of the holder under
the Licenses and permits as of the Closing Date.
2. This Agreement shall not be construed as an express or implied
representation or warranty by Assignor as to the transferability of the Licenses
and Permits, and Assignor shall have no liability to Assignee in the event that
any or all of the Licenses or Permits (i) are not transferable to Assignee or
(ii) are canceled or revoked by reason of this Assignment or any acts of
Assignee.
3. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and general partner
its general partner therein
By: By: RIDA Investments of Florida,
Name: Inc., a Florida corporation
Title: and a general partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1
to
Assignment and Assumption of Licenses and Permits
Exhibit L
ASSIGNMENT OF GUARANTEES AND WARRANTIES
THIS AGREEMENT, made this day of August, 1997, by and between Altamonte
Joint Venture, a Florida general partnership ("Assignor"), and The Price REIT
Renaissance Partnership, L.P., a California limited partnership ("Assignee").
W I T N E S S E T H :
WHEREAS, by Contribution Agreement (the "Contribution Agreement") dated as of
August 28, 1997, by and between Assignor and Assignee, Assignor has agreed to
contribute to Assignee on the Closing Date (as defined in the Contribution
Agreement), certain property known as the Renaissance Centre located in
Altamonte Springs, Florida and more particularly described in the Contribution
Agreement; and
WHEREAS, Assignor desires to assign and quitclaim to Assignee as of the Closing
Date Assignor's interest in those certain guaranties and warranties listed on
Schedule 1 annexed hereto (the "Guarantees and Warranties") and Assignee desires
to accept such assignment and assume the obligations, if any, of the holder,
under the Guarantees and Warranties as of the Closing Date;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agrees as follows:
1. Assignor does hereby assign quitclaim unto Assignee to have and to hold
from and after the date hereof all of the right, title and interest of Assignor,
if any, in, to and under the Guarantees and Warranties, and Assignee hereby
accepts the within assignment and assumes the obligations, if any, of the holder
under the Guarantees and Warranties as of the Closing Date.
2. This Agreement shall not be construed as an express or implied
representation or warranty by Assignor as to the transferability of the
Guarantees and Warranties, and Assignor shall have no liability to Assignee in
the event that any or all of the Guarantees or Warranties (i) are not
transferable to Assignee or (ii) are canceled or revoked by reason of this
assignment or any acts or Assignee.
3. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
The Price REIT Renaissance Partnership, ALTAMONTE JOINT VENTURE,
L.P., a Florida general partnership
a California limited partnership
By: RIDA Renaissance Limited
By: THE PRICE REIT, INC., Partnership, a Florida limited
a Maryland corporation, partnership and a general partner
its general partner therein
By: By: RIDA Realty Investments of
Name: Florida, Inc., a Florida
Title: corporation and a general
partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1
to
Assignment of Guarantees and Warranties
Exhibit M
August , 1997
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Attn:
Re: Renaissance Centre
Gentlemen:
This is to inform you that Altamonte Joint Venture, a Florida general
partnership, has this day contributed the captioned premises to The Price REIT
Renaissance Partnership, L.P., a California limited partnership having an
address at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000, and
has transferred to it all leases, security deposits and prepaid rents, if any,
and other matters relating to your tenancy at the captioned premises.
After the date hereof, you should pay all rent and other amounts and direct all
notices and request regarding your tenancy at the captioned premises to The
Price REIT Renaissance Partnership, L.P., c/o The Price REIT, Inc., 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000, Attn: Property Management
Department.
Sincerely,
ALTAMONTE JOINT VENTURE,
a Florida general partnership
By: RIDA Renaissance Limited Partnership,
a Florida limited partnership
and a general partner therein
By: RIDA Realty Investments of
Florida, Inc., a Florida corporation
and a general partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Exhibit N
SPECIAL WARRANTY DEED
Exhibit O
INSURANCE BINDER
Exhibit P
Estoppel Certificate
Exhibit Q
Brokerage Agreements
None
Exhibit R
FIRPTA Affidavit
NON-FOREIGN STATUS AFFIDAVIT
(Partnership)
To inform The Price REIT Renaissance Partnership, L.P., a California limited
partnership (the "Transferee") that withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended ("Code") will not be required upon the
transfer of certain U.S. real property to the Transferee by Altamonte Joint
Venture, a Florida general partnership (the "Transferor"), the undersigned
hereby certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign person (as that term is defined in Code
Section 1445);
2. The Transferor's U.S. taxpayer identification number is
; and
3. The Transferor has a permanent place of business in .
The Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, I declare that I have examined this Certification and
to the best of my knowledge and belief it is true and correct, and I further
declare that I have authority to sign this document on behalf of the Transferor.
August , 1997.
TRANSFEROR:
ALTAMONTE JOINT VENTURE
a Florida general partnership
By: RIDA Renaissance Limited Partnership,
a Florida limited partnership and
a general partner therein
By: RIDA Realty Investments of
Florida, Inc., a Florida corporation
and a general partner therein
By:
Name:
Title:
By: Lemac Equities, Ltd.,
a Florida limited partnership
By: Lemac, Inc.,
a Florida corporation
By:
Name:
Title:
Schedule 1.05
Vanilla Shell Construction Provisions
Schedule 4.04
Tax Proration Exceptions
Tenant Prorata Share of Center
Chili's 2.21%
General Cinema 12.34%
Portfolio Furniture 11.44%
Xxxx Stores 8.85%
Uptons 22.13%
Vision Works 2.49%
Total Prorata Property Tax 59.46%
Thus, the tax proration is to be calculated on 40.54% of the gross amount of
property taxes due annually.
