AGREEMENT FOR PURCHASE AND SALE
BY AND BETWEEN
FINGER LAKES OUTLET CENTER, L.L.C., THE PRIME OUTLETS AT MICHIGAN CITY LIMITED
PARTNERSHIP, THE PRIME OUTLETS AT GILROY LIMITED
PARTNERSHIP AND OUTLET VILLAGE OF KITTERY LIMITED PARTNERSHIP
AS
SELLER
AND
F/C WATERLOO DEVELOPMENT LLC, F/C MICHIGAN
CITY DEVELOPMENT LLC, F/C GILROY DEVELOPMENT LLC
F/C KITTERY DEVELOPMENT LLC AND F/C MICHIGAN PARKING LLC
AS BUYER
December 22, 2000
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE ("Agreement") is made and entered into
as of December 22, 2000 ("Closing Date") by and between Finger Lakes Outlet
Center, L.L.C., a Delaware limited liability company (the "Finger Lakes
Seller"), The Prime Outlets at Michigan City Limited Partnership, a Delaware
limited partnership (the "Michigan City Seller #1"), The Prime Outlets at Gilroy
Limited Partnership, a Delaware limited partnership (the "Gilroy Seller") and
Outlet Village of Kittery Limited Partnership, a Delaware limited partnership
(the "Kittery Seller", together with the Finger Lakes Seller, the Michigan
Seller and the Gilroy Seller shall collectively be referred to herein as
"Seller") and F/C Waterloo Development LLC, a Delaware limited liability company
(the "Finger Lakes Buyer"), F/C Michigan City Development LLC, a Delaware
limited liability company (the "Michigan City Buyer"), F/C Gilroy Development
LLC, a Delaware limited liability company (the "Gilroy Buyer"), F/C Kittery
Development LLC, a Delaware limited liability company (the "Kittery Buyer"), and
Michigan City Parking LLC, a Delaware limited liability company ("Michigan
Parking Buyer") together with the Finger Lakes Buyer, the Michigan City Buyer
and the Gilroy Buyer shall collectively be referred to herein as "Buyer").
I. DEFINITIONS
Unless the context otherwise specifies or requires, for the purposes of
this Agreement, the following terms shall have the meanings set forth in this
Article I:
1.1. Additional Michigan City Land. The term "Additional Michigan City Land"
shall mean that certain portion of the real property described on Exhibit A
owned by the Michigan Parking Seller.
1.2. Additional Michigan City Buildings. The term "Additional Michigan City
Buildings" shall mean, collectively, the buildings and improvements, if
any, located on the Additional Michigan City Land.
1.3. Additional Michigan City Property. The term "Additional Michigan City
Property" shall mean, collectively, the Additional Michigan City Land and
the Additional Michigan City Buildings.
1.4. Buildings. The term "Buildings" shall mean, collectively, the buildings and
improvements located on the Land. The term "Building" shall mean one of the
Buildings.
1.5. Contracts. The term "Contracts" shall mean, collectively, all of those
agreements and contracts relating to the ownership, management and/or
operation of all or any part of the Property, excluding Tenant Leases.
Buyer shall assume only those Contracts listed on Exhibit H attached
hereto, such Contracts being assumed being hereinafter referred to as
"Contracts Being Assumed".
1.6. Deposits. The term "Deposits" shall mean, collectively, all tenant security
deposits, whether in the form of cash or letter of credit, held by Seller
pursuant to the Tenant Leases, which Deposits are set forth on the Rent
Roll attached hereto as Exhibit B.
1.7. Environmental Agreements. The term "Environmental Agreements" shall mean,
collectively, all of those agreements relating to environmental issues
affecting the Property which are set forth on Exhibit Q attached hereto.
1.8. Environmental Insurance Policy. The term "Environmental Insurance Policy"
shall mean that certain insurance policy relating to environmental issues
affecting the portion of the Property owned by the Kittery Seller which is
set forth on Exhibit O attached hereto.
1.9. Finger Lakes Pilot Agreement. The term "Finger Lakes Pilot Agreement" shall
mean that certain Pilot Agreement dated as of June 28, 1994, between the
predecessor in interest to the Finger Lakes Seller and the Finger Lakes
Ground Lessor, as amended and assigned from time to time.
1.10.Ground Leases. The term "Ground Leases" shall mean (i) the ground lease of
portions of the Land as more particularly described on Exhibit A, between
the Finger Lakes Seller as ground lessee, and those parties identified
therein as ground lessors (the "Finger Lakes Ground Lessor") and (ii) the
ground lease of portions of the Land as more particularly described on
Exhibit A, between the Kittery Seller as ground lessee, and those parties
identified therein as ground lessors (the "Kittery Ground Lessor") as such
ground leases heretofore may have been or hereafter may be amended,
restated or otherwise modified. The Finger Lakes Ground Lessor and the
Kittery Ground Lessor shall collectively be referred to as the "Ground
Lessors".
1.11.Gilroy Ground Lease. The term "Gilroy Ground Lease" shall mean the ground
leases of portions of the Land as more particularly described on Exhibit A
(the "Gilroy Ground Lease Land") between the Gilroy Seller as ground
lessee, and those parties identified therein as ground lessors (the "Gilroy
Ground Lessor"), as such ground leases heretofore may have been or
hereafter may be amended, restated or otherwise modified.
1.12.Hazardous Materials. The term "Hazardous Materials shall mean asbestos or
asbestos-containing materials; oils; petroleum-derived compounds, radon,
urea formaldehyde, pesticides; PCBs or any material which constitutes a
hazardous or toxic substance under applicable federal or state
environmental laws.
1.13.Intangible Property. The term "Intangible Property" shall mean,
collectively, all property owned by Seller other than the Personal
Property, the Tenant Leases, the Buildings, the Land, Seller's interest in
the Contracts, and the Name Rights, which intangible property is used in
connection with the ownership, management and operation of the Land,
Buildings, Personal Property, Tenant Leases and Seller's interest in the
Contracts. The term Intangible Property shall include, without limitation,
all appraisals, engineering, soils, curtain wall, hazardous materials,
marketing and other reports and studies relating to the Property, all
contract rights, rights under insurance policies (only to the extent that
such rights arise from acts, events, or omissions occurring after the
Closing Date and, except for the Environmental Insurance Policy, Seller may
terminate all such insurance policies at Closing), contract claims (only to
the extent that such claims arise from acts, events, or omissions occurring
after the Closing Date), claims and actions at law or in equity (except for
any claims relating to pre-closing rents in a Tenant bankruptcy), escrow
accounts (subject to proration as hereinafter provided), deposits
(including, without limitation, utility deposits, subject to proration as
hereinafter provided), warranties, guarantees, correspondence with present
or prospective tenants or suppliers, advertising materials and telephone
exchange numbers identified therewith, the plans and specifications for
each Building (to the extent in Seller's possession) and copies of all
architectural, engineering and construction proposals in Seller's
possession for the remodeling of the Property not yet performed. All Name
Rights and computer software are to be expressly deleted from the
definitions of "Intangible Property", "Property" and "Personal Property".
Notwithstanding anything herein to the contrary, Seller hereby covenants
and agrees that Buyer shall be permitted to use Name Rights in connection
with all pylon signs located at the Property, at no cost to Buyer, for a
period not to exceed ninety (90) days after the Closing Date in accordance
with the terms of that certain License Agreement (the "License Agreement")
dated as of the date hereof between Prime Retail, L.P., as licensor, and
Purchaser, as licensee.
0.00.Xxxx. The term "Land" shall mean the real property described in Exhibit A
and Seller's interest as ground lessee in the Ground Leases, together with
any alleys, strips or gores of land, if any, adjoining such real property
and abutting properties, whether owned or claimed by deed, limitations or
otherwise, and whether or not located inside or outside such real property,
together with all rights, titles and interests of Seller in and to any
easements, rights of ingress or egress or other interests in, on or under
such real property. The term "Land" shall also specifically exclude the
Additional Michigan City Land.
1.15.Laws. The term "Laws" shall mean all applicable laws, ordinances, rules
and regulations of all public or quasi-public authorities having or
claiming jurisdiction thereof.
1.16.Leasing Commissions. The term "Leasing Commissions" shall mean,
collectively, all brokerage commissions or other compensation to any
broker, leasing agent, tenant representative or owner's agent which Seller
is or may become obligated to pay in connection with the execution,
renewal, extension or expansion of any Tenant Lease. Buyer shall assume
only those Leasing Commissions set forth on Exhibit C attached hereto, such
Leasing Commissions being assumed being hereinafter referred to as "Leasing
Commissions Being Assumed."
0.00.Xxxx Rights. The term "Name Rights" shall mean, collectively Prime
Outlets, Prime and Outlet Village, together with all rights to use such
names, and associated and accompanying logos, service marks, and similar
design identification marks in connection with the Land and Buildings.
1.18.Personal Property. The term "Personal Property" shall mean, collectively
and without limitation, all of Seller's right, title and interest in all
personal property owned or held by Seller, and located on, or used in
connection with, the ownership, operation, management or maintenance of the
Land, the Buildings, the Intangible Property, the Tenant Leases and
Seller's interest in the Contracts, including, without limitation, all
furniture, furnishings, fixtures, appliances, machinery, inventory,
supplies and equipment and other tangible personal property located on the
Property, other than personal property owned by Tenants, gift certificate
printing machines and credit card processing machines related thereto, the
computer located at the Property owned by the Finger Lakes Seller (the
"Finger Lakes Property") dedicated to the gift certificate program, any
time clocks not listed on Exhibit D, any office equipment in Prime Retail
L.P.'s regional office located at the portion of the Property and owned by
the Gilroy Seller. A list of Personal Property (other than Contracts, the
Tenant Leases and Intangible Property) is attached hereto as Exhibit D.
0.00.Xxxxxxxx. The term "Property" shall mean, collectively, Seller's interest
in all of the following: the Land, the Buildings, the Personal Property,
the Deposits, the Contracts Being Assumed, and the Intangible Property. The
term "Property" shall also be deemed to refer to any portion of the
foregoing described property.
1.20.Release. The term "Release" shall mean presence, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing.
1.21.Tenant Leases. The term "Tenant Leases" shall mean, collectively, all
leases, licenses, occupancy agreements and rental agreements with respect
to the occupancy or use of any portion of the Property by tenants,
licensees or occupants of any portion of the Property (collectively,
"Tenants" and individually, a "Tenant"), all of which are listed in the
rent roll attached hereto as Exhibit B (the "Rent Roll").
1.22.Title Company. The term "Title Company" shall mean Chicago Title Insurance
Company in Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxxx, telephone
no. 212/000-0000.
II. PURCHASE AND SALE OF THE PROPERTY
2.1. Purchase and Sale. Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property, upon all of the terms, covenants and
conditions set forth in this Agreement.
2.2. Purchase Price. The purchase price for the Property shall be
$239,500,000.00 (the "Purchase Price"). The Purchase Price, subject to
adjustments and prorations as set forth herein, shall be paid on the
Closing Date by the assumption by Buyer of the indebtedness currently
encumbering the Property (excluding the Additional Michigan City Property)
originally from Nomura Asset Capital Corporation as lender (the "Assumed
Debt Lender") in the original maximum indebtedness obligation of
$180,000,000 (the "Assumed Debt"), plus the payment, by wire transfer of
immediately available U.S. funds, in an amount equal to difference between:
(a) the Purchase Price and (b) the then outstanding Amortized Amount as
defined and determined on the date of Closing pursuant to the Loan
Agreement for the Assumed Debt (together with all other outstanding amounts
then due and payable under the documents and instruments evidencing and
securing the Assumed Debt (such documents and instruments, as the same
heretofore may have been amended, restated or otherwise modified, are
hereinafter collectively referred to as the "Assumed Debt Documents"), all
of the foregoing being, in addition, subject to proration in accordance
with Article V.
2.3. Xxxx of Sale. At the Closing, Seller shall assign and transfer to Buyer as
of the Closing Date, without any additional consideration therefor, all of
its right, title and interest, if any, in and to the Personal Property,
pursuant to a xxxx of sale.
2.4. Assignment and Assumption of Leases. At the Closing, Seller shall assign
and transfer to Buyer and Buyer shall assume as of the Closing Date,
without any additional consideration therefor, all of its right, title and
interest in and to the Tenant Leases, pursuant to an Assignment and
Assumption of Leases between Seller and Buyer.
2.5. Assignment of Warranties, Permits and Intangible Property. At the Closing,
Seller shall assign and transfer to Buyer as of the Closing Date, without
any additional consideration therefor, all of its right, title and
interest, if any, in and to: (i) all warranties and guaranties in effect
with respect to the Property; (ii) all licenses and permits required of the
owner of the Property to operate the Property to the extent transferable;
and (iii) the Intangible Property, pursuant to an Assignment of Warranties,
Permits and Intangible Property from Seller to Buyer.
2.6. Assignment and Assumption of Contracts. At the Closing, Seller shall assign
and transfer to Buyer and Buyer shall assume as of the Closing Date,
without any additional consideration therefor, all of its right, title and
interest, if any, in and to the Contracts Being Assumed, if any, from and
after the Closing Date, pursuant to an Assignment and Assumption between
Seller and Buyer.
2.7. Assignment of Environmental Agreements. At the Closing, Seller shall assign
and transfer to Buyer as of the Closing Date, without any additional
consideration therefor, all of its right title and interest in and to the
Environmental Agreements, pursuant to an Assignment of Environmental
Agreements between Seller and Buyer. In addition, at or prior to the
Closing Date, Seller shall deliver evidence to Buyer that Buyer will be
named as an additional insured on the Environmental Insurance Policy
effective as of the Closing Date.
2.8. Purchase Price Allocation. Seller and Buyer agree to allocate the Purchase
Price for the Property among the assets comprising same as set forth on
Exhibit E.
III. Conditions
3.1. Agreement to Treat Information Confidentially. Buyer and Seller hereby
covenant and agree that, except as required by law (including, without
limitation, any SEC requirements), they will not disclose the terms and
conditions of this Agreement (including, but not limited to, the Purchase
Price) or any of the information delivered by Buyer or Seller hereunder to
any other person or entity without obtaining the prior written consent of
the other party hereto to such disclosure (such consent not to be
unreasonably withheld). Notwithstanding the foregoing, Seller and Buyer
acknowledge and agree that certain disclosures to (i) their counsel, (ii)
CapMark Services, L.P. (in its capacity as Servicer under the Assumed Debt
Documents), (iii) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP (in its capacity as
counsel to CapMark Services, L.P.), (iv) consultants and (v) certain of
their other agents as will be necessary in order to perform their
respective obligations under this Agreement.
3.2. Conditions. Anything to the contrary herein notwithstanding, Buyer's
obligation to purchase the Property shall be expressly conditioned upon the
fulfillment of each of the following conditions precedent (collectively,
the "Buyer's Conditions Precedent") on or before the Closing Date:
(a) Buyer shall have received surveys, title commitments, and such other
property documents, as Buyer shall have reasonably required to be
delivered;
(b) Seller shall have delivered tenant estoppel certificates or
reliance letters from such Tenants as Buyer shall have required;
(c) Without duplication of Section 3.2(b) hereof, Seller shall have delivered
estoppel certificates from such parties to reciprocal easement and
operating agreements affecting any portion of the Property, as Buyer shall
have reasonably required;
(d) Buyer shall have received such written approvals of the transfer of the
Property from such governmental authorities as may be required for such
transfer and continued use and operation thereof by Buyer (including
without limitation, the consent of the Industrial Development Agency of
Seneca County);
(e) Seller shall have delivered (i) if there is a third party property manager,
a final lien waiver from the property manager for each portion of the
Property or (ii) if there is no third party property manager, a
certification whereby Seller represents and warrants to Buyer that there is
no third party property manager for each portion of the Property;
(f) As of the Closing Date, Seller shall not have commenced (within the meaning
of any Bankruptcy Law) a voluntary case, nor shall any involuntary case
have been commenced against Seller, nor shall Seller have consented to the
appointment of a Custodian of it or for all or any substantial part of its
property, nor shall a court of competent jurisdiction have entered an order
or decree under any Bankruptcy Law that is for relief against Seller in an
involuntary case or which appoints a Custodian of Seller for all or any
substantial part of its property. The term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law;
(g) On the Closing Date, no action or proceeding shall have been instituted
before any court or governmental authority by any governmental authority or
third party that seeks to restrain or prohibit, or to obtain substantial
damages in respect of, or which is related to or arises out of, this
Agreement, the consummation of the transactions contemplated herein, or any
obligations of Seller with respect to the Property except as listed on
Exhibit I hereto;
(h) On the Closing Date, Seller's title to the Land and Buildings shall be
marketable, good of record and in fact, and free and clear of all
mortgages, liens, encumbrances, easements, leases, conditions and other
matters affecting title other than those exceptions to title reasonably
acceptable to Buyer (the "Permitted Exceptions"), the Tenant Leases and the
liens and encumbrances related to the Assumed Debt, and Buyer shall have
received the binding commitment of the Title Company to issue a title
policy reasonably acceptable to Buyer (the "Owner Title Policy") in at
least the amount of the Purchase Price;
(i) On the Closing Date, Seller shall not be in violation of any of its
covenants hereunder, and all of the representations set forth herein
(including, without limitation, those set forth in Article IV hereof) shall
be true and correct in all respects;
(j) Buyer shall have received: (i) such consents and approvals from the Assumed
Debt Lender as may be required by Buyer; (ii) an estoppel certificate from
the Assumed Debt Lender, as may be required by Buyer; and (iii) such other
documents and instruments with respect to the assumption of the Assumed
Debt from Seller to Buyer as may be required by Buyer;
(k) Buyer shall have received: (i) such assignment documents with respect to
the Ground Leases as may be reasonably required by Buyer; (ii) such
consents and approvals from the Ground Lessors as may be required by Buyer;
(iii) an estoppel certificate from the Ground Lessors, as may be required
by Buyer and consistent with the terms of the Ground Leases;
(l) Seller and Buyer shall have executed and delivered, without condition, all
documents and instruments with respect to that certain loan in the amount
of approximately $90,000,000 (the "Prime Loan Documents") from Buyer (or an
affiliate thereof) to Seller (or an affiliate thereof), such loan (the
"Prime Loan") shall have been consummated contemporaneously herewith;
(m) On or before the Closing Date, Seller shall have acquired the Gilroy Ground
Lessor's fee simple interest in the property commonly known as Prime
Outlets at Gilroy (the "Gilroy Property") on terms and conditions
satisfactory to Buyer;
(n) Buyer shall have received satisfactory evidence from Seller and the Gilroy
Ground Lessor that: (i) the Gilroy Ground Lease has been terminated, (ii)
the outstanding lawsuit filed by the Gilroy Ground Lessor against Seller
has been dismissed with prejudice, and (iii) the Gilroy Ground Lessor has
executed a release, in form and substance satisfactory to Buyer, releasing
Buyer and Seller from any liability in connection with the Gilroy Ground
Lease; and
(o) Buyer shall have received: (i) such assignment documents from Seller with
respect to Environmental Agreements as may be reasonably required by Buyer;
and (ii) evidence that an endorsement naming F/C Kittery Development LLC as
an additional insured will be issued by the insurance company providing the
Environmental Insurance Policy which endorsement shall be effective as of
the Closing Date.
3.3. Seller's Conditions.
Anything to the contrary herein notwithstanding, Seller's obligation to sell the
Property shall be expressly conditioned upon the fulfillment of each of the
following conditions precedent (collectively, the "Seller's Conditions
Precedent") on or before the Closing Date:
(a) Buyer shall have received such written approvals of the transfer of the
Property from such governmental authorities as may be required for such transfer
and continued used and operation thereof by Buyer (including without limitation,
the consent of the Industrial Development Agency of Seneca County);
(b) Seller and its parent entities shall have been released from all liability
under the Assumed Debt Documents accruing from and after the Closing Date;
(c) Seller shall have received such consents, approvals and releases from the
Ground Lessors as may be reasonably required by Seller;
(d) Seller and Buyer shall have executed and delivered without condition, all
of the Prime Loan Documents;
(e) On or before the Closing Date, Seller shall have acquired the Gilroy Ground
Lessor's fee simple interest in the Gilroy Property; and
(f) Seller shall have received satisfactory evidence from the Gilroy Ground
Lessor that: (i) the Gilroy Ground Lease has been terminated, (ii) the
outstanding lawsuit filed by the Gilroy Ground Lessor against Seller has
been dismissed with prejudice, and (iii) the Gilroy Ground Lessor has
executed a release, in form and substance satisfactory to Seller, releasing
Buyer and Seller from any liability in connection with the Gilroy Ground
Lease.
IV. COVENANTS, REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
4.1. Seller's Representations, Warranties and Covenants. Seller hereby
represents, warrants and covenants the following, as of the date hereof:
(a) Seller represents and warrants that, except as indicated on Exhibit J
hereto, it has kept, observed and performed all of the material obligations
to be performed on a timely basis by Seller as landlord under the Tenant
Leases, as ground lessee under the Ground Leases and, except as otherwise
set forth herein, under the Gilroy Ground Lease, as borrower under the
Assumed Debt Documents and as owner under the Assumed Contracts. All
individual repair or maintenance work orders for individual tenants
required under written agreements made by Seller with the tenants (other
than their respective Leases) and all tenant improvement costs in
connection with the Leases, which Buyer has agreed to assume are set forth
in Exhibit F attached hereto (the "Assumed Tenant Improvement Costs") and
Buyer shall receive a credit against the Purchase Price for such amounts.
(b) Seller represents and warrants that it has not entered into any written or
oral service, management, maintenance or real estate commission contract or
any other agreement affecting the Property that has not been fully
performed and paid by Seller except as indicated on Exhibit K, or
terminated by Seller (without cost to Buyer) on or before the Closing Date,
other than Contracts Being Assumed.
(c) Seller covenants that for a period of two (2) years after the Closing Date,
on Buyer's request and with reasonable notice, Seller shall make all of its
records relating to the Property available to Buyer for inspection, copying
and audit by Buyer's outside accountants, provided that Buyer shall
reimburse Seller for its reasonable out of pocket expenses in connection
therewith.
(d) Seller represents and warrants that it has not sold, assigned or conveyed
any right, title or interest whatsoever in or to the Property (other than
the Tenant Leases, Ground Leases and the Assumed Contracts), and no liens,
security interests, easements, encumbrances, charges (other than charges to
be adjusted or paid at Closing) or title conditions affecting the Property,
other than the Permitted Exceptions and other than those liens and
encumbrances relating to the Assumed Debt, exist with respect thereto.
(e) Seller represents and warrants that it has not entered into, terminated,
altered, amended or otherwise modified, supplemented or granted consent
under any of the Ground Leases, except as otherwise disclosed to Buyer in
writing.
(f) Seller represents and warrants that it has not entered into, altered,
amended or otherwise modified, supplemented or granted consent under any of
the Assumed Debt Documents, except as otherwise disclosed to Buyer in
writing.
(g) Due organization. Seller is duly organized and existing, has the full right
and authority to enter into this Agreement and consummate the sale,
transfer and assignment contemplated herein, and the person or persons
signatory to this Agreement and any document executed pursuant hereto on
behalf of Seller have full power and authority to bind Seller. No consent
from any third party is required before the Property may be conveyed to
Buyer (other than the consent of the holder of the Assumed Debt, and the
Ground Lessors under the Ground Leases).
(h) Bankruptcy. Seller has not commenced (within the meaning of any Bankruptcy
Law) a voluntary case, nor has there been commenced against Seller an
involuntary case, nor has Seller consented to the appointment of a
Custodian of it or for all or any substantial part of its property, nor has
a court of competent jurisdiction entered an order or decree under any
Bankruptcy Law that is for relief against Seller in an involuntary case or
appointed a Custodian of Seller for all or any substantial part of its
property.
(i) Watertight. All roofing reports prepared by Seller, Seller's property
manager or maintenance staff or, to the extent in Seller's possession, by
Seller's consultants, vendors or suppliers have been delivered to Buyer.
(j) HVAC. All material written Tenant complaints (which have not been cured or
otherwise satisfactorily resolved with such Tenant) regarding the HVAC
system, including without limitation temperature regulation, noise, fumes,
odors or indoor air quality have been disclosed to Buyer. Buyer has been
given all preventive maintenance reports and recommended repair reports
prepared by Seller or Seller's maintenance staff or, if in Seller's
possession, prepared by Seller's consultants, equipment vendors, or
suppliers.
(k) Utilities. Seller has not received written notice of any pending or
threatened reduction or elimination of any utility service.
(l) Tenant Complaints. All material written Tenant complaints (which have not
been cured or otherwise satisfactorily resolved with such Tenant) regarding
the Buildings known to Seller have been disclosed to Buyer.
(m) No Insurance or Fire Code Violations. Seller has not received any written
notices from any insurance company or board of fire underwriters alleging
any defects or inadequacies in the Property or any part thereof.
(n) Leasing Commissions. All leasing commissions or referral fees attributable
to the primary term of all Tenant Leases have been or will, by Closing, be
paid in full. No brokerage or similar fee shall be due or payable on
account of the exercise of, without limitation, any renewal, extension or
expansion options arising under any Tenant Leases, except for the Leasing
Commissions Being Assumed.
(o) Contracts. Seller has heretofore delivered to Buyer true, correct and
complete copies of all of the Contracts (including all amendments thereto).
Except for the Contracts Being Assumed, there exist no management,
maintenance, operating, service, commission or other similar contracts
affecting the Property which will survive the Closing and be binding on
Buyer. All such Contracts not constituting Contracts Being Assumed have
been canceled by Seller as of the Closing Date without penalty or liability
to Buyer or will remain the sole responsibility of Seller. No material
default or breach exists on the part of Seller or any service contractor
under any Contract Being Assumed, except as set forth on Exhibit L. Seller
shall use commercially reasonable efforts to obtain any consents required
from the applicable contract parties with respect to the assignment to
Buyer of each Contract Being Assumed and if any such consent cannot be
obtained and the applicable contracting party refuses to perform for Buyer,
then Seller shall remain liable for such contract and with respect to
Contracts covering motor vehicles shall be entitled to retain or have
returned to Seller any motor vehicles covered by such Contract.
(p) Unpaid Bills. All bills and claims for water and sewer service and for
labor performed or materials furnished to or for the benefit of the
Property, or assessments for street or other improvements or any other
service or labor which could give rise to a lien for the period on or prior
to the Closing Date have been paid in full on or prior to the Closing Date.
There are no liens for unpaid water and sewer service charges, mechanics'
or materialmen's liens, brokers' liens, or assessments for street or other
improvements or for any other service or labor which could give rise to a
lien (whether or not perfected) on or affecting the Property, except for
the Permitted Exceptions and the liens relating to the Assumed Debt.
(q) Compliance with Other Agreements. Except as to those matters for which
consents are to be sought pursuant to the provisions hereof, neither this
Agreement nor anything provided to be done hereunder, including, without
limitation, the transfer, assignment and sale of the Property violates any
written or oral contract, agreement or instrument which affects Seller or
the Property or any part thereof and which will become binding on Buyer
after the Closing Date.
(r) Property Documents. Seller has delivered all books, records, reports,
correspondence, engineering or other studies or information known to Seller
relevant to the construction, maintenance, leasing or operation of the
Property, to the extent same are in Seller's possession.
(s) Statements Not Misleading. None of the representations or warranties in
this Agreement, nor any schedule attached hereto nor, to Seller's knowledge
any document, certificate or other information prepared by Seller and
furnished to Buyer (excluding, however, information prepared by Seller
relating to tenant leases and rents and financial performance of the
Property, but included in this representation are the Leases themselves and
the final Rent Rolls delivered by Seller attached as Exhibit B and the
operating statements referred to in Section 4.1(u) below) pursuant to this
Agreement or in connection with the transactions contemplated herein,
contains, any untrue statement of a material fact or omits, to state a
material fact necessary to make the statements of facts contained therein
not misleading.
(t) Litigation. There are no actions or proceedings pending in which Seller is
a named party or are, to the best of Seller's knowledge, threatened against
Seller or the Property before any court or administrative agency or
arbitrator or mediator, which do or will materially adversely affect the
Property, except as disclosed on Exhibit G attached hereto.
(u) Operating Statements. Seller has delivered to Buyer true, correct and
complete copies of those operating statements dated September 30, 2000
relating to the Property required by Buyer.
(v) Taxes. Seller has paid or, at Closing will pay, all of its ad valorem tax
obligations or liabilities pertaining to the Property which are then due
and payable. There are no state tax liabilities of any kind applicable to
Seller or the Property accrued, due and payable on or before Closing.
(w) Use and Operation. To Seller's knowledge, the present use and operation of
the Property as retail shopping centers is authorized by and in compliance
with all applicable zoning and land-use requirements and restrictions. To
Seller's knowledge, no portion of the Property has been constructed on
property formerly or currently used as a cemetery or, burial grounds. True
and complete copies of all licenses, permits and certificates issued in
connection with the use and operation of the Property (to the extent same
are in Seller's possession) are annexed hereto as Exhibit M. To Seller's
knowledge, no default has occurred in the due observance of any condition
to any license, permit or certificate relating to the Property, nor is
there lacking any license, permit or certificate needed in connection with
the ownership or operation of the Property. To Seller's knowledge, valid
permanent certificates of occupancy have been issued for the Buildings and
remain in full force and effect. To Seller's knowledge the parking lots,
garages and decks located on the Land are in full compliance with all
applicable Laws, except as disclosed in the engineering reports provided by
Seller to Buyer.
(x) Streets; Eminent Domain. Except as set forth on Exhibit R, Seller has
received no notice of any existing, proposed or contemplated plans to
widen, modify or realign any street or highway, or any existing or proposed
or contemplated eminent domain proceedings which would affect the Property
in any way whatsoever, or the present use, size, alignment or location of
any streets adjacent to the Property, or any planned public improvements
which may be constructed on the surface of or underneath the streets in the
vicinity of the Buildings.
(y) No Violations. Seller has received no notice from any federal, state or
local governmental authority of any violation or investigation into an
alleged violation, of any Laws, affecting the Buildings or the Property (or
any portion thereof).
(z) No Other Commitments. Except as set forth on Exhibit R, Seller has not
made, and to the best of Seller's knowledge, no one else has made any
commitments to or agreements with any federal, state or local governmental
authority or agency affecting the Property which have not been disclosed to
Buyer in writing.
(aa) ADA Compliance. Seller has delivered to Buyer all surveys performed by or
on behalf of Seller to determine compliance of the Buildings with the
Americans With Disabilities Act of 1990, as amended ("ADA"). To Seller's
knowledge no notices or complaints involving any violation of the ADA have
been filed and Seller is not aware of and has not received nor been served
with any notice, complaint or service involving any ADA complaint or
violation at the Buildings, whether such complaint or violation is alleged
or was filed against Seller or, to Seller's knowledge, against any Tenant.
(bb) Environmental. Seller has delivered to Buyer true and correct copies of all
environmental reports and environmental site assessments prepared by or on
behalf of Seller (or in Seller's possession) in connection with the
Property and copies of all information in its possession regarding the
adjoining NIPSCO property at Michigan City. Except as disclosed to Buyer,
Seller has not received any written complaint, order, citation or notice
with regard to air emissions, water discharges, noise emissions, or the
release or threatened release of any Hazardous Materials, or with respect
to any other environmental, health or safety matters affecting the
Property, or any part thereof, and except as disclosed to Buyer, has no
notice of any such air emissions, water discharges, noise emissions or
Hazardous Materials in, on, over, under or adjacent to the Property. Seller
has not filed any notice under any federal or state law indicating past or
present treatment, storage or disposal of any Hazardous Material on the
Property, or into the indoor or outdoor environment of the Property. The
foregoing representations and warranties do not cover the presence of
Excluded Materials (hereafter defined) from whatever the source on, in or
under the Property. "Excluded Materials" shall mean (x) Hazardous
Materials, other than asbestos containing materials, which may be present
in lawful amounts and stored in accordance with applicable Laws as
components of paints (excluding lead-based paints), glues, fuels, photocopy
equipment supplies, janitorial supplies, cleaning agents and solvents in
quantities commonly stored, found or maintained for similar uses in retail
shopping centers similar to the Buildings, and (y) mastic containing
asbestos and asbestos containing materials in floor tile that are not
friable.
(cc) Personal Property. The Personal Property is free and clear of liens and
encumbrances other than the Permitted Exceptions and liens and encumbrances
relating to the Assumed Debt and those equipment leases and equipment
financing security interests constituting part of the Assumed Contracts.
There is no personal property, including without limitation furniture,
fixtures or supplies, owned by Seller and used by Seller on a substantially
exclusive basis in connection with the use and operation of the Property
except for the Personal Property and those items expressly excluded from
the Property hereunder. Seller covenants that any such additional personal
property discovered by Buyer or Seller after Closing shall be transferred
to Buyer at no additional cost hereunder free and clear of all liens,
claims and encumbrances other than the Permitted Exceptions and liens and
encumbrances relating to the Assumed Debt and those equipment leases and
equipment financing security interests constituting part of the Assumed
Contracts.
(dd) Tenant Leases. All existing Tenant Leases are listed in the Rent Roll.
Seller has delivered, prior to the date hereof, to Buyer true and complete
copies of all Tenant Leases including, but not limited to all amendments
and notices of commencement and renewal and all correspondence related
thereto, with the exception of that certain lease with Motherhood Maternity
at the Finger Lakes Property. The Rent Roll is accurate as to the
information set forth therein in all material respects as of the date set
forth therein. Except as set forth in the Rent Roll and the Tenant Leases,
Seller has not entered into any oral or written Tenant Leases, nor has
Seller given any person (other than the Tenants named in the Rent Roll) any
right of possession to the Property or any part thereof, and there are no
other Tenant Leases or rights of possession. Except as set forth in the
Rent Roll and the Tenant Leases, Seller has not given any concessions of
any kind or character (including, without limitation, free or reduced rent,
free or reduced parking, buy-out, finish out, moving, refurbishment, Tenant
equity in the Property, cash payments to Tenants, lease assumptions and
other concessions or allowances granted to induce a Tenant to enter into a
lease, or expand or renew a lease, (collectively, "Concessions")) to any
Tenant. No rent under any Tenant Lease has been paid more than one (1)
month in advance by any Tenant. No Tenant has made any claim against Seller
for any security deposits or other deposits (which has not been satisfied),
and, except as set forth in Exhibit B, no Tenant has any defense or offset
to rent accruing after the Closing Date. The Tenant Leases described in the
Rent Roll are in full force and effect (except as to Tenants in bankruptcy
who may assume or reject such Tenant Leases) and, except as set forth on
the Rent Roll, no breach exists in the payment of rents except as shown on
the Rent Roll, no other default or breach exists on the part of any Tenant
thereunder except as disclosed to Buyer in writing or identified on the
Rent Roll, and except as set forth in Exhibit B, Seller has not received
any notice of any alleged default or breach on the part of Seller
thereunder. All Deposits (and a statement as to whether interest is payable
thereon in accordance with the terms of the applicable Tenant Lease) are
listed in the Rent Roll.
(ee) Option Conflicts. To the best of Seller's knowledge, no adverse economic
effect from or conflicts exist between rights of expansion, extension and
first refusal or opportunity held by Tenants, and all such rights have been
subordinated to the rights of lenders and, to the extent necessary to avoid
conflict, to superior rights of other Tenants.
(ff) No Options. No commitment, obligation or agreement relating to the
purchase, sale or transfer of the Property, including without limitation
any right of first refusal, purchase option or redemption right, which
would or could prevent Seller from completing the transfer of the Property
hereunder or which would bind Buyer subsequent to the Closing Date, has
been granted to any Tenant or any other party (other than transfers of
leasehold estates under the Tenant Leases and equipment leases constituting
part of the Assumed Contracts). The right of first refusal set forth in
that certain lease dated as of August 16, 1983, between the predecessor in
interest to the Kittery Seller, as landlord, and Lenox China, as tenant, is
no longer in force and effect.
(gg) No Subleases. Seller has no knowledge of any subleases or assignments
executed on the part of any Tenant that have not been disclosed in the Rent
Roll other than subleases or assignments that did not result in the change
of a trade name.
(hh) Underlying Title Documents. To Seller's knowledge, there are no material
violations by any party under any restrictions, easement or operating
agreements, or similar reciprocal easement or operating agreements, with
respect to any portion of the Property, including, without limitation those
agreements listed on Exhibit S attached hereto.
(ii) Assumed Debt Documents. Seller has delivered true, correct and complete
copies of all of the Assumed Debt Documents and there are no breaches or
violations under any of such documents by Seller (or the applicable
borrower thereunder) or the Assumed Debt Lender, or any conditions which,
with notice or the passage of time could ripen into a default thereunder.
(jj) Ground Leases. Seller has delivered true, correct and complete copies of
all of the Ground Leases and there are no breaches or violations under any
of such documents by Seller (or the applicable ground lessee thereunder) or
the Ground Lessor, or any conditions which, with notice or the passage of
time could ripen into a default thereunder. Seller has delivered true,
correct and Complete copies of the Gilroy Ground Lease.
(kk) Labor Issues. No strikes or other material labor disputes are pending or,
to Seller's knowledge, threatened with respect to any portion of the
Property. Seller is not a party to, or is bound by, any collective
bargaining agreement, management agreement, consulting agreement or any
employment agreement. There is no organizing activity involving the
employees of Seller pending or, to Seller's knowledge, threatened, by any
labor union or group of employees. There are no representation proceedings
pending or, to Seller's knowledge, threatened, with the National Labor
Relations Board, and no labor organization or group of employees has made a
pending demand for recognition. There are no complaints or charges against
Seller pending, or to Seller's knowledge, threatened to be filed, with any
governmental authority or arbitrator based on, arising out of, in
connection with or otherwise relating to, the employment or termination of
employment by Seller of any individual, except as set forth on Exhibit P.
All employees working at the Property (or any portion thereof) are listed
on Exhibit N, which includes for each employee his or her (i) name, (ii)
job description, (iii) salary and (iv) date of employment. Except as
described on Exhibit N, no employee at the Property (or any portion
thereof) is covered by a union contract, collective bargaining agreement,
employment agreement, deferred compensation agreement or other agreement of
any kind. Exhibit N also sets forth a summary description of Seller's
existing employment policies and practices with respect to vacations, sick
days, personal days, bonuses, raises, promotions, discharges, overtime,
work responsibilities, benefits, retirement, severance pay and other
relevant matters. Seller shall remain liable for all accrued and
outstanding vacation time of such employees to the Closing Date and shall
pay same to the employee in question promptly after the Closing.
(ll) Insurance Policies. All of Seller's insurance policies covering the
Property, together with the name, title and phone numbers of all
appropriate contacts, are listed on Exhibit O attached hereto. No notice
has been received by Seller from the insurance company which issued any of
such policies stating that any of such policies is not in full force and
effect.
The representations and warranties set forth in this Section 4.1: (i) shall
survive the consummation of the transactions contemplated hereby (the "Closing")
for a period of twelve (12) months as to the status of facts as they exist on
the Closing Date, it being understood that Seller makes no representations and
warranties which would apply to changes occurring after the Closing; (ii) are
material and being relied upon by Buyer (and Buyer may rely on Seller's
representations and warranties, notwithstanding that Buyer has conducted its own
investigations and examinations); and (iii) is true in all respects as of the
date hereof except as set forth in Exhibit G attached hereto. The term "Seller"
as used in this Section 4.1 shall include the owners of the Property and shall
include the managers (or acting managers) of the Property if the same are
different from the Seller.
4.2. Breaches of Seller's Warranties. If Buyer discovers any of the foregoing
representations and warranties to be materially incorrect after Closing,
Buyer shall have all of its rights and remedies at law or in equity.
4.3. Buyer's Express Warranties and Covenants. Buyer hereby represents and
warrants to Seller that: (a) Buyer is duly organized and validly existing
under the Laws of the state pursuant to which it was organized, and Buyer,
or its assignee taking title to the Property, is duly organized, validly
existing, and duly authorized to do business in the states where the
Property is located as of the Closing; and (b) Buyer has: (i) all requisite
power and authority to (A) own its property and operate its business and
(B) enter into this Agreement and consummate the sale contemplated herein;
and (ii) by proper action, duly authorized the execution and delivery of
this Agreement and the consummation of the sale herein contemplated. All of
Purchaser's insurance policies covering the Property, together with the
name, title and phone numbers of all appropriate contacts, are listed on
Exhibit O. Buyer covenants that after the Closing Date, no more frequently
than once every two months and with reasonable notice, Buyer shall make all
of its records relating to the calculations and reconciliation of the
adjustments under Section 5.3 available to Seller for inspection, copying
and audit by Seller's outside accountants provided that Seller shall
reimburse Buyer for its reasonable out of pocket expenses in connection
therewith. The rights granted hereunder shall terminate with respect to
those items to be adjusted under paragraphs (a), (c), (f) and (h) of
Section 5.3 on July 31, 2001 and with respect to the percentage rents to be
adjusted under paragraph (b) of Section 5.3 on February 28, 2002.
4.4. Indemnification and Environmental Matters.
(a) Seller agrees to indemnify Buyer, its partners, members, shareholders,
officers, directors and employees (the "Indemnitees") from and against, and
to defend and hold them harmless from and against, any claim, loss, cost,
liability, damage, expense, fees or fines (including reasonable attorneys'
fees and costs), or actions with respect thereto, only if the same are
direct (and not consequential) but regardless of whether foreseeable,
unforeseeable, past, present or future (collectively, "Claims"), asserted
against, incurred or suffered by Buyer in connection with, related to or
arising from: (i) the acts, events or omissions of Seller or anyone acting
by or through Seller occurring prior to the Closing Date; (ii) any
litigation instituted (or threatened in writing) prior to the Closing Date
(including, without limitation, those litigations referenced on Exhibit G,
Exhibit I and Exhibit P other than the Michigan City title action) as to
which this Section 4.4 shall apply; (iii) the breach of any of the
covenants set forth herein; (iv) the Tenant Leases and the Contracts, in
connection with, arising from or related to, acts, events or omissions of
Seller or anyone acting by or through Seller occurring prior to the Closing
Date; (v) the Assumed Debt, in connection with, arising from or related to,
acts, events or omissions occurring prior to the Closing Date; (vi) the
Ground Leases and the Finger Lakes Pilot Agreement, in connection with,
arising from or related to, acts, events or omissions occurring prior to
the Closing Date; (vii) the untruth or inaccuracy of any of the
representations and warranties made by Seller in this Agreement (but as to
this item (vii), Seller's obligations under this Section 4.4(a) shall
survive only for so long as the representation or warranty survives); or
(viii) the Gilroy Ground Lease, in connection with or arising from or
related to acts, events or omissions occurring before or after the Closing
Date. Notwithstanding the foregoing, nothing contained herein in Section
4.4 (a) shall require Seller to indemnify any Indemnitee for Claims arising
as a result of the gross negligence or willful misconduct of such
Indemnitee.
(b) Buyer agrees to indemnify Seller, its partners, members, shareholders,
officers, directors and employees against and to defend and hold them
harmless from any Claim asserted against, incurred or suffered by Seller in
connection with, related to or arising from (i) the acts, events or
omissions of Buyer or anyone acting by or through Buyer occurring on or
after the Closing Date and related to the Property (other than with respect
to Claims for which Buyer is indemnified pursuant to the provisions
hereof), (ii) the breach of any covenant of Buyer set forth herein, or
(iii) any liability or obligation of Buyer first accruing on or after the
Closing Date with respect to the ownership or operation of the Property
(and which would not otherwise constitute a breach of Seller's
representations and warranties hereunder) and from the Tenant Leases, the
Assumed Debt, the Assumed Contracts and the Ground Leases arising from or
related to acts, events or omissions of Buyer occurring from and after the
Closing Date. Notwithstanding the foregoing, nothing contained herein in
Section 4.4(b) shall require Buyer to indemnify any of the previously
referenced parties for Claims arising as a result of the gross negligence
or willful misconduct of such party.
(c) The obligations of Seller to pay any amounts which Seller is obligated to
pay pursuant to Section 4.4(a) above shall be the joint and several
obligations of Seller, Prime Retail, L.P. ("Prime") and Prime Retail, Inc.
("Prime Inc.", together with Prime shall collectively be referred to herein
as the "Prime Guarantor") and Buyer may look to either or both of Seller or
Prime Guarantor for the satisfaction of such payment obligations.
(d) The indemnifications set forth in this Article IV and set forth elsewhere
in this Agreement shall survive the Closing, subject to any express
limitations on their survival.
(e) Seller will obtain for Buyer within 45 days after the Closing Date (a)
environmental insurance for a period of five (5) years covering the
Property owned by the Kittery Seller (the "Kittery Property") on terms
identical in all material respects to the Environmental Insurance Policy,
and (b) environmental insurance covering the Property owned by the Michigan
City Seller and the Additional Michigan City Property on terms set forth on
Exhibit T attached hereto and on such additional terms as are reasonably
approved by Buyer and customarily available for this type of insurance;
provided, however, if the insurance company providing the environmental
insurance requires Seller to provide a Phase I Environmental Report for the
Additional Michigan City Property, Seller shall have an additional 45 days
to obtain such environmental insurance for the Additional Michigan City
Property and the Michigan City Property if it is part of the same policy.
All premiums and costs to obtain the policies will be paid by Seller. Buyer
will be responsible for all deductibles. Buyer will fully and promptly
cooperate with Seller's efforts including providing all environmental
reports in Buyer's possession requested by the insurer. Seller will not be
required to provide any environmental indemnities.
4.5. Prime's Representations, Warranties and Covenants. Prime Retail, L.P.
("Prime") hereby represents, warrants and covenants the following as of the
date hereof:
(a) Prime represents and warrants that it has not entered into any written or
oral service, management, maintenance or real estate commission contract or
any other agreement affecting the Additional Michigan City Property that
has not been fully performed and paid by Prime, or terminated by Prime
(without cost to Buyer) on or before the Closing Date, other than Contracts
Being Assumed.
(b) Prime represents and warrants that it has not sold, assigned or conveyed
any right, title or interest whatsoever in or to the Additional Michigan
City Property, and to Prime's knowledge, no liens, security interests,
easements, encumbrances, charges (other than charges to be adjusted or paid
at Closing) or title conditions affecting the Additional Michigan City
Property, other than the Permitted Exceptions, exist with respect thereto.
(c) Due organization. Prime is duly organized and existing, has the full right
and authority to enter into this Agreement and consummate the sale,
transfer and assignment contemplated herein, and the person or persons
signatory to this Agreement and any document executed pursuant hereto on
behalf of Prime have full power and authority to bind Prime. No consent
from any third party is required before the Additional Michigan City
Property may be conveyed to Buyer.
(d) Bankruptcy. Seller has not commenced (within the meaning of any Bankruptcy
Law) a voluntary case, nor has there been commenced against Prime an
involuntary case, nor has Prime consented to the appointment of a Custodian
of it or for all or any substantial part of its property, nor has a court
of competent jurisdiction entered an order or decree under any Bankruptcy
Law that is for relief against Prime in an involuntary case or appointed a
Custodian of Prime for all or any substantial part of its property.
(e) Leases and Leasing Commissions. There are no leases affecting the
Additional Michigan City Property and there are no commissions or referral
fees attributable to the Additional Michigan City Property other than the
Contracts Being Assumed.
(f) Contracts. Seller has not entered into any contracts affecting the
Additional Michigan City Property other than the Contracts Being Assumed.
(g) Unpaid Bills. All bills and claims for water and sewer service and for
labor performed or materials furnished to or for the benefit of the
Additional Michigan City Property, or assessments for street or other
improvements or any other service or labor which could give rise to a lien
for the period on or prior to the Closing Date have been paid in full on or
prior to the Closing Date. There are no liens for unpaid water and sewer
service charges, mechanics' or materialmen's liens, brokers' liens, or
assessments for street or other improvements or for any other service or
labor which could give rise to a lien (whether or not perfected) on or
affecting the Additional Michigan City Property.
(h) Litigation. There are no actions or proceedings pending against Seller
which do or will materially adversely affect the Additional Michigan City
Property.
(i) Taxes. Prime has paid or, at Closing will pay, all of its ad valorem tax
obligations or liabilities pertaining to the Additional Michigan City
Property which are then due and payable. There are no state tax liabilities
of any kind applicable to Prime that could constitute a lien on the
Additional Michigan City Property accrued, due and payable on or before
Closing.
(j) Use and Operation. To Seller's knowledge, the present use and operation of
the Additional Michigan City Property for parking is authorized by and in
compliance with all applicable zoning and land use requirements and
restrictions. To Seller's knowledge, no portion of the Additional Michigan
City Property has been constructed on property formerly or currently used
as cemetery or burial grounds.
(k) Streets; Eminent Domain. Seller has received no notice of any existing,
proposed or contemplated plans to widen, modify or realign any street or
highway, or any existing or proposed or contemplated eminent domain
proceedings which would affect the Additional Michigan City Property in any
way whatsoever, or the present use, size, alignment or location of any
streets adjacent to the Additional Michigan City Property, or any planned
public improvements which may be constructed on the surface of or
underneath the streets in the vicinity of the Additional Michigan City
Property.
(l) No Violations. Seller has received no notice from any federal, state or
local governmental authority of any violation or investigation into an
alleged violation, of any Laws, affecting the Additional Michigan City
Property.
(m) No Other Commitments. Except as set forth on Exhibit R, Seller has not
made, and to Seller's knowledge, no one else has made any commitments to or
agreements with any federal, state or local governmental authority or
agency affecting the Additional Michigan City Property which have not been
disclosed to Buyer in writing.
The representations and warranties set forth in this Section 4.5: (i) shall
survive the consummation of the transactions contemplated hereby (the "Closing")
for a period of twelve (12) months as to the status of facts as they exist on
the Closing Date, it being understood that Prime makes no representations and
warranties which would apply to changes occurring after the Closing; (ii) are
material and being relied upon by Buyer (and Buyer may rely on Prime's
representations and warranties, notwithstanding that Buyer has conducted its own
investigations and examinations); and (iii) is true in all respects as of the
date hereof except as set forth in Exhibit G attached hereto.
4.6. Breaches of Prime's Warranties. If Buyer discovers any of the foregoing
representations and warranties to be materially incorrect after Closing,
Buyer shall have all of its rights and remedies at law or in equity.
V. TITLE AND CLOSING
5.1. Title. Seller shall cause title to the Land and Buildings to be conveyed to
Buyer by one or more good and sufficient special warranty deeds or
assignments, subject only to the Permitted Exceptions and the liens and
encumbrances relating to the Assumed Debt.
5.2. Closing.
(a) At the Closing, Seller shall deliver or cause to be delivered to the Title
Company the following documents, duly executed (and where appropriate,
acknowledged in accordance with Buyer's and Seller's written closing
instructions):
(i) Deeds to the Property and, where applicable, assignments of the Ground
Leases;
(ii) The xxxx of sale;
(iii)The counterpart of the Assignment and Assumption of Leases, with a current
rent roll attached thereto;
(iv) The Assignment of Warranties, Permits and Intangible Property;
(v) The counterpart of the Assignment and Assumption of Contracts;
(vi) A Non-Foreign Affidavit;
(vii)A counterpart of an agreement (the "Designation Agreement") designating
the Title Company as the "Reporting Person" for the transaction pursuant to
Section 6045(e) of the Federal Code and the regulations promulgated
thereunder;
(viii) Those Tenant estoppels and reliance letters received from Tenants, as
required hereunder;
(ix) The estoppel certificates from the parties to the reciprocal easement and
operating agreements, as required hereunder;
(x) Copies of notices to each of the Tenants of the Property advising them of
the sale of the Property to Buyer and the transfer of their Deposits (the
"Tenant Notices");
(xi) Any other transfer documents reasonably requested by Buyer or Title
Company, including, without limitation, any necessary environmental
disclosure documents required under applicable Law as a condition to the
transfer;
(xii)Reasonable evidence of the capacity and authority of Seller to execute
this Agreement and the documents required to be executed and delivered
hereunder;
(xiii) One or more ALTA extended coverage Owner's Policies of Title Insurance
Form B issued by the Title Company (and by such reinsurers and coinsurers,
in amounts of secondary and tertiary liability, as Buyer deems acceptable)
in the allocated amount of the Purchase Price and otherwise in form and
substance as may be required by Buyer;
(xiv)Executed originals of the Tenant Leases, original sets (or copies) of the
plan and specifications with respect to the Property, originals (to the
extent available) of the Assumed Debt Documents, and originals (to the
extent available) of the Intangible Property;
(xv) UCC-1 searches of each owner of any portion of the Property, showing no
liens other than Permitted Exceptions and liens related to the Assumed
Debt;
(xvi) Certified copy of the rent roll for the Property;
(xvii) All keys and master key patterns in the possession or control of Seller
to all locks located in the Property;
(xviii)The consents, estoppel certificates and other documents and instruments
required hereunder in connection with the assumption of the Assumed
Debt;
(xix)The consents, estoppel certificates and other documents and instruments
required hereunder in connection with the assignment and assumption of the
Ground Leases;
(xx) Such other documents or instruments as may be reasonably required to
consummate the transaction contemplated hereby, whether required by Buyer
or the Title Company;
(xxi)Seller's written closing instructions to the Title Company in accordance
with the terms of this Agreement;
(xxii) Estoppel Certificate of the Town of Xxxxxx Waste Water Disposal District
#1;
(xxiii)Assignment and Assumption of the Finger Lakes Pilot Agreement;
(xxiv) Reasonable evidence that Buyer has been named as an additional insured on
the Environmental Insurance Policy;
(xxv)such other documents or instruments as may be required hereunder in
connection with the Gilroy Ground Lease;
(xxvi) the Assignment of Environmental Agreements; and
(xxvii) a Deed from Prime to the Additional Michigan City Property.
(b) Buyer shall (i) deliver to the Title Company's escrow account for
disbursement to pay off all indebtedness presently encumbering the Property
(other than the Assumed Debt and the Assumed Contracts), to pay Seller's
closing costs, and the balance to be paid to Seller, in accordance with
Buyer's and Seller's written closing instructions, immediately available
U.S. funds in the amount of the Purchase Price adjusted as set forth in
this Agreement (the "Seller's Funds") and (ii) deliver the following
documents, duly executed (and, where appropriate, acknowledged):
(i) A counterpart of the Assignment and Assumption of Leases;
(ii) A counterpart of the Assignment and Assumption of Contracts;
(iii) A counterpart of the Designation Agreement;
(iv) Any other documents required to consummate or otherwise effectuate the
transactions contemplated hereby;
(v) Reasonable evidence of Buyer's capacity and authority for executing the
documents required to be executed by Buyer herein; and
(vi) Buyer's written closing instructions in accordance with the terms of this
Agreement.
(vii) A counterpart of the License Agreement;
(viii)A counterpart of the Assignment and Assumption of Finger Lakes Pilot
Agreement;
(ix) A counterpart of the Assignment of the Finger Lakes Ground Lease;
(x) A counterpart of the Assignment of the Kittery Ground Lease; and
(xi) A counterpart of the Assignment of Environmental Agreements.
5.3. Prorations and Credits.
(a) All rentals (including all CAM, tax, insurance and trash charges, but
excluding all marketing and promotional charges and all percentage rentals)
and all other income related to the Property shall be prorated between
Seller and Buyer effective as of 12:00 midnight on the day prior to the
Closing Date (the "Proration Time") based in the case of December rentals
only, on rentals invoiced without regard to amounts actually collected. All
rentals received by Seller prior to the Closing Date for months after the
Closing Date shall be credited to Buyer at Closing.
(b) Percentage rentals under each Tenant Lease shall be adjusted between Seller
and Buyer based on the lease year or other applicable annual period used to
compute percentage rent under the Tenant Lease (the "Lease Year") with
Seller being entitled to a fraction of the total percentage rent paid by
the Tenant for the Lease Year determined by dividing the number of days in
such Lease Year through the Proration Time by the total number of days in
the Lease Year, with Buyer being entitled to the balance. For instance, if
the Proration Time is midnight on December 21, 2000, the Lease Year for a
particular tenant expires on January 31, 2001, and the total percentage
rent paid by the Tenant is $10,000, Seller would be entitled to $8876.71
(314/365 x $10,000). The adjustment for percentage rentals shall not occur
on the Closing Date, but shall occur on a Tenant Lease by Tenant Lease
basis promptly after the percentage rent is paid as set forth in the post
closing procedure attached as Exhibit U.
(c) Promotional and marketing payments by Tenants, and promotional and
marketing expenses for calendar year 2000 shall not be adjusted at Closing.
Seller shall be solely entitled to all such payments and solely responsible
for all such expenses. Instead, on a Property by Property basis, Seller
shall credit Buyer at Closing with an amount equal to the excess of the
promotional or marketing fund payments received by Buyer over the
promotional or marketing fund expenses paid by Seller for the 2000 calendar
year (including carry-forwards). Buyer acknowledges and agrees that the
amounts credited to Buyer pursuant to this subsection 5.3 (c) shall be used
for future promotional and marketing fund expenses. Seller shall not
receive a credit if, as to a particular Property, the promotional or
marketing fund expenses for the 2000 calendar year (including
carry-forwards) exceed the promotional or marketing fund charges received
for the 2000 calendar year. The provisions of this paragraph (c) shall not
apply to the Property owned by the Kittery Seller.
(d) Rents payable under the Ground Leases shall be prorated as of Proration
Time. All operating expenses (including utility charges and Contract
charges (but only to the extent same are in connection with Contracts Being
Assumed), but excluding all marketing and promotional expenses for the
Property owned by each of the Michigan City Seller, the Gilroy Seller and
the Finger Lakes Seller) relating to the Property shall be prorated between
Seller, and Buyer as of the Proration Time. Seller shall pay in full all
invoices, bills and other obligations relating to the Property for the
period prior to the Closing Date, regardless of whether the invoices, bills
and evidences of other obligations are received prior to, on or after the
Closing Date. To the extent practicable, utility meters (other than those
payable directly by Tenants to the public utilities) shall be read no more
than one business day prior to the Closing Date. Seller shall assign to
Buyer all of Seller's right, title and interest in all utility security
deposits and Seller shall receive a credit therefor.
(e) All Deposits made by Tenants of the Property as security for rent, cleaning
or any other purpose (whether identified as refundable or non-refundable)
that have not been applied in accordance with the terms of the leases shall
be paid to Buyer as of the Closing Date, together with, if applicable, the
amount of interest then accrued at the interest rate payable with respect
thereto in accordance with the terms of the applicable Tenant Lease. If any
Deposit is in the form of a letter of credit, such letter of credit shall
be transferred by Seller to Buyer on the Closing Date if it is
transferable, or if such letter of credit is not transferable, Seller shall
cause the Tenant to deliver a replacement letter of credit, or, at Buyer's
option, Seller and Buyer shall execute and deliver on the Closing Date an
appropriate agreement pursuant to which the benefits of such letter of
credit are made available to Buyer.
(f) Except for December rentals as provided above, no prorations shall be made
for delinquent rentals under the Tenant Leases. Buyer shall use reasonable
efforts to collect or attempt to collect such rentals for the benefit of
Seller but shall not be required to spend more than nominal sums or to
declare a Tenant in default to do so. Buyer agrees, for a period of six (6)
months after the Closing Date, to include in its billing to Tenants,
invoices for these delinquent rents prepared by Seller and provided to
Buyer, and agrees to refer Tenants having questions as to their invoices to
a designated contact person of Seller. Buyer shall not have the right to
forgive the delinquent rentals. Seller shall have no right to attempt to
collect delinquent rents (except as specifically provided above) on or
after the Closing Date and shall not bring (or threaten to bring) any
actions against any Tenants with respect thereto, except that Seller may
(i) file and prosecute claims for pre-closing rents in a Tenant bankruptcy
and (ii) bring any claim or counter-claim relating to pre-closing events
against a Tenant that files a legal action against Seller.
Rents (exclusive of percentage rentals) collected after the Closing Date
shall be applied first to current rents, second to rents past due after the
Closing Date, and third to rents past due prior to the Closing Date.
Notwithstanding the forgoing, as to December delinquent rentals, Seller shall
deliver to Buyer at Closing a list of such delinquencies and any subsequent
rents collected after the Closing Date and clearly designated as payment of
December rentals shall be applied first to December rentals.
(g) Seller shall deliver to Buyer in cash at Closing an amount equal to all
unpaid Leasing Commissions.
(h) At Closing, Seller shall deposit with Buyer an amount equal to all 1999
CAM, tax, trash and insurance (collectively, "Additional Charges")
reconciliations due Tenants under Tenant Leases and not previously paid or
credited to Tenants. The Additional Charges shall be held in escrow by
Buyer and disbursed in accordance with the provisions of Exhibit V attached
hereto. Buyer shall retain such credits in escrow and to the extent such
credit is not claimed by a Tenant, shall remit such amount back to Seller.
Seller shall prepare reconciliations for calendar year 2000 Additional
Charges paid by tenants under the Tenant Leases, and Buyer shall provide to
Seller information as to all such expenses of Buyer includible therein in
sufficient time to allow Seller to prepare the reconciliations. Once
approved, Buyer shall promptly send reconciliations to the Tenants and
invoice all tenants for any shortages in payments of the Additional
Charges. Promptly after approval thereof by Buyer, Seller shall reimburse
Buyer for any overpayments of Additional Charges attributable to the period
of Seller's ownership under the Tenant Leases (such that, after taking into
account the prorations elsewhere in this Section 5.3, neither Seller nor
Buyer shall have retained Additional Charges in excess of what each spent.
Similarly, Buyer shall reimburse Seller promptly after receipt of same from
Tenants for any shortages attributable to the period of Seller's ownership
to the extent Buyer receives reimbursement from Tenants under Tenant
Leases.
(i) All general and special real property, personal property and other ad
valorem taxes and assessments for the Property and all other governmental
taxes, fees, charges and assessments affecting the Property or any part
thereof (including sewer assessments and Pilot payments at Finger Lakes)
shall be prorated as of the Proration Time, on the basis of the most recent
reliable information available (which, in the case of real property taxes
and assessments, shall be the most current real property tax xxxx
available). Buyer shall receive a credit in an amount equal to all of such
taxes which are either due and payable as of the Closing Date (and are
unpaid) or are accrued but are not yet due and payable and Seller shall
receive a credit in an amount equal to all such taxes paid by Seller for
periods after the Proration Time.
All special taxes or assessments which are levied or assessed by any
governmental authority on or before the Closing Date shall be paid by Seller,
regardless of whether such installments are due subsequent to the Closing Date.
Seller shall remain solely responsible for and shall promptly pay before their
due dates all real property taxes and assessments (including, without
limitation, supplemental or escaped assessments) relating or attributable to
periods prior to the Closing Date, regardless of when notice of such taxes or
assessments is received or who receives the notice.
(j) Under the Assumed Debt Documents, escrows are maintained by the Assumed
Debt Lender for (i) taxes and insurance, (ii) ground lease payments
(including under the Gilroy Ground Lease) (iii) deferred maintenance, and
(iv) capital reserves. At Closing, Seller shall receive a credit for the
amounts in the tax and insurance escrow and the ground lease escrow, but
shall not receive a credit for the deferred maintenance escrow and the
capital reserve escrow.
After Closing, Seller shall have the right to prepare requests for
reimbursement from the deferred maintenance escrow for those amounts shown as
having been completed on Exhibit W hereto, which requests Buyer agrees to
promptly forward to the Assumed Debt Lender. Any sums released by the Assumed
Debt Lender for such requests shall be promptly paid to Seller upon receipt by
Buyer. After Buyer completes the remaining work required under the Assumed Debt
Documents to be performed in connection with the deferred maintenance escrow and
receives reimbursement for the costs it incurred in performing such work, if any
additional funds remain in the deferred maintenance escrow, Buyer shall request
the release of such excess funds from the escrow and when received, shall
promptly pay such excess funds to Seller.
After Closing, Seller shall have the right to prepare requests for
reimbursement of capital expenses paid by Seller and not previously reimbursed
from the capital reserve escrow, which request Buyer agrees to promptly forward
to the Assumed Debt Lender. Any sums released by the Assumed Debt Lender for
such requests shall be promptly paid to Seller upon receipt by Buyer.
(k) On or before March 31, 2000, Seller shall prepare a final reproration of
all amounts to be adjusted under paragraphs (a), (c), (d), (e), and (g)
hereof and submit same to Buyer for approval. Promptly after approval by
Buyer, Seller shall pay to Buyer or Buyer shall pay to Seller, as the case
may be, any amounts required to be readjusted by such reproration. No
further reproration shall be made for such items thereafter.
(l) All gift certificates issued by Seller prior to Closing shall remain the
sole responsibility of Seller, and Seller agrees to honor such gift
certificates for so long as they remain effective. Notwithstanding any
contrary provisions of this Agreement, Seller shall retain ownership of,
and shall remove from the Property, all current gift certificates, and the
printers, credit card processors and Compaq computers dedicated to issuing
gift certificates.
(m) Seller and Buyer shall implement the provisions of this section by
following the post closing adjustment procedure identified in Exhibit U.
5.4. Closing Costs. Seller shall pay the cost of all transfer, conveyance and
recordation taxes whatsoever imposed by any governmental authority upon
this transaction, all title insurance premiums (including, without
limitation, all applicable endorsements) for the Owner title policy and
related survey costs, recording fees and Title Company fees for title
examination and escrow. All other normal and customary costs of closing
(including, without limitation, (i) engineering inspections and reports,
(ii) one-half of any expenses incurred by Ernst & Young in connection with
the preparation of audited financial statements for the Property for 2000,
as required under the Assumed Debt Documents, and (iii) Buyer's attorneys'
fees shall be borne by Seller.
5.5. Possession. Right to possession of the Property shall transfer to Buyer on
the Closing Date. Promptly following Closing, Seller shall deliver the
Tenant Notices to all Tenants, and shall notify all parties with whom
Seller has Contracts Being Assumed of the transfer of the Property.
Notwithstanding the forgoing, Prime Retail L.P. shall be entitled to retain
possession of its existing regional management office at Gilroy through,
and only through, January 31, 2001.
5.6. Leasing Commissions. At Closing, Buyer shall assume the obligation to pay
the Leasing Commissions Being Assumed. Any other commission, listing or
referral fees existing at Closing and not paid or credited by Seller to
Buyer at Closing shall be paid or discharged by Seller; such obligations
shall survive the Closing.
VI. COMMISSIONS
6.1. Brokerage Commissions and Finder's Fees. Seller hereby represents and
warrants to Buyer that it has not dealt with any broker, finder or any
other similar person in connection with the sale of the Property. Seller
hereby indemnifies the Indemnitees for any Claim related to a breach of the
foregoing representation and warranty. Buyer hereby represents and warrants
to Seller that it has not dealt with any broker, finder or any other
similar person in connection with the purchase of the Property. Buyer
hereby indemnifies Seller for any Claim related to a breach of the
foregoing representation and warranty. Notwithstanding the foregoing, the
parties acknowledge that in connection with the Prime Loan and the sale of
the Property, Seller is paying the Loan Fee pursuant to the Prime Loan
Documents.
VII. DEFAULT
7.1. Default; Remedies.
(a) IF BUYER BREACHES A COVENANT OR REPRESENTATION OR WARRANTY OF BUYER'S SET
FORTH HEREIN FOR ANY REASON OTHER THAN A DEFAULT BY SELLER, SELLER SHALL BE
ENTITLED TO ALL OF ITS RIGHTS AND REMEDIES AT LAW OR IN EQUITY.
(b) If Seller breaches a covenant or representation or warranty of Seller's set
forth herein for any reason other than a default by Buyer; Buyer may pursue
whatever rights and remedies it may have against Seller at law or in
equity.
(c) The obligations of Seller to pay any amounts which Seller may be obligated
to pay pursuant to this Article 7 shall be the joint and several
obligations of Seller and Prime Guarantor and Buyer may look to either or
both of Seller or Prime Guarantor for the satisfaction of such payment
obligations. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION 7.1 AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
BUYER'S INITIALS ____ SELLER'S INITIALS ____
VIII. MISCELLANEOUS
8.1. Notices. Any notices required to be given hereunder shall be given in
writing and shall be served either personally, by national overnight air
courier service, or delivered by certified or registered mail, return
receipt requested, postage prepaid, or by facsimile transmittal followed by
certified mail or air express delivery, addressed to the following:
To Seller: c/o Prime Retail, L.P.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
Facsimile: 000-000-0000
With copy to: c/o Prime Retail, L.P.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: R. Xxxxxx Xxxxxx
Facsimile: 000-000-0000
To Buyer: c/o Fortress Registered Investment Trust
1301 Avenue of the Americas - 42nd Floor
New York, New York 10019
Attn.: Xxxxxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
and: x/x Xxxxxxx XXX Realty, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxxx Xxxxx, Esq.
Facsimile: (000)000-0000
With copies to: Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
Attn.: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Notices shall be deemed received at the earlier of actual receipt (with
electronic confirmation of facsimile receipt) or three (3) business days
following mailing.
8.2. Entire Agreement. This Agreement, together with the exhibits hereto,
contains all representations and the entire understanding between the
parties hereto with respect to the subject matter hereof. Any prior
correspondence, memoranda or agreements (other than Confidentiality
Agreements which shall survive the execution and delivery of this
Agreement) are replaced in total by this Agreement and the exhibits hereto.
The exhibits attached hereto are incorporated into this Agreement in their
entirety by this reference.
8.3. Time. Time is of the essence in the performance of the parties' respective
obligations herein contained.
8.4. Attorneys' Fees. In the event any dispute between the parties hereto should
result in litigation, the prevailing party shall be reimbursed for all
reasonable costs, including, without limitation, reasonable attorneys'
fees.
8.5. No Merger. Subject to any provision hereof limiting survival, the
obligations, representations, warranties and the remedies for breach
thereof herein contained shall not merge with transfer of title but shall
remain in effect until fulfilled.
8.6. Successors and Assigns. This Agreement may not be assigned prior to the
Closing by either party without the prior written consent of the other
except that Buyer may assign its interest in this Agreement to one or more
assignees at Closing, provided that any such assignment shall not result in
a material delay of the Closing. Subject to the foregoing provision, this
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Notwithstanding the
foregoing, Buyer may designate any entity (or entities) other than Buyer to
take title to the Property (or any portion thereof); provided, however,
that such designation shall not release Buyer from its obligations
hereunder.
8.7. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED UNDER AND
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8.8. Further Assurances. Without in any manner expanding the scope of either
parties' obligations hereunder, whenever and so often as required by a
party, the other party will promptly execute and deliver or cause to be
executed and delivered all such other and further instruments, documents or
assurances, and promptly do or cause to be done all such other and further
things as may be reasonably necessary and reasonably required in order to
further carry out the purposes and intents of this Agreement. 8.9.
Counterparts. This contract may be executed in one or more counterparts and
all so executed shall constitute one contract, binding on all of the
parties hereto, notwithstanding that all of the parties are not signatory
to the same counterpart.
0.00.Xxxxxxxxxxxx. The parties acknowledge that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
8.11.Recording. Neither this Agreement nor any memorandum thereof shall be
recorded.
8.12.Modification. This Agreement shall not be altered, amended, changed,
waived, terminated or otherwise modified in any respect or particular, and
no consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or on behalf
of the party to be charged.
8.13.Waiver of Jury Trial. SELLER AND BUYER HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER
ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
8.14.Days. Unless business days are expressly provided for, all references to
"days" herein shall refer to consecutive calendar days. If the Closing Date
or any other date or time period provided for in this Agreement is or ends
on a Saturday, Sunday or federal, or New York State legal holiday, then
such date shall automatically be extended to the next day which is not a
Saturday, Sunday or any federal or New York State legal holiday.
0.00.Xx Waiver. The waiver by one party of the performance of any covenant,
condition or promise, or of the time for performing any act, under this
Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by such party of any other covenant, condition or promise, or of the
time for performing any other act required, under this Agreement. The
exercise of any remedy provided in this Agreement shall not be a waiver of
any remedy provided by law, and the provisions of this Agreement for any
remedy shall not exclude any other remedies unless they are expressly
excluded.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the Contract Date.
SELLER:
FINGER LAKES OUTLET CENTER, L.L.C.,
a Delaware limited liability company
By: Prime Retail, L.P., a Delaware limited partnership, its managing member
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: _____________________________
Name:
Title:
THE PRIME OUTLETS AT MICHIGAN CITY LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: _____________________________
Name:
Title:
THE PRIME OUTLETS AT GILROY LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: _____________________________
Name:
Title:
OUTLET VILLAGE OF KITTERY LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: _____________________________
Name:
Title:
BUYER:
F/C WATERLOO DEVELOPMENT LLC, a Delaware limited liability company
By: F/C PRT Holdings LLC, a Delaware limited liability company, its sole member
By: F/C Acquisition Holdings LLC, a Delaware limited liability company, its
sole member
By: Chelsea GCA Realty Partnership, L.P., its managing member
By: Chelsea GCA Realty, Inc., its general partner
By: ___________________
Name:
Title:F/C GILROY DEVELOPMENT LLC, a Delaware limited liability company By: F/C
Gilroy Holdings LLC, a Delaware limited liability company, its sole member
By: F/C Acquisition Holdings LLC, a Delaware limited liability company, its sole
member
By: Chelsea GCA Realty Partnership, L.P., its managing member
By: Chelsea GCA Realty, Inc., its general partner
By: ___________________
Name:
Title:
F/C KITTERY DEVELOPMENT LLC, a Delaware limited liability company
By: F/C PRT Holdings LLC, a Delaware limited liability company, its sole
member
By: F/C Acquisition Holdings LLC, a Delaware limited liability company,
its sole member
By: Chelsea GCA Realty Partnership, L.P., its managing member
By: Chelsea GCA Realty, Inc., its general partner
By: ___________________
Name:
Title:
F/C MICHIGAN CITY DEVELOPMENT LLC, a Delaware limited liability company
By: F/C PRT Holdings LLC, a Delaware limited liability company, its sole member
By: F/C Acquisition Holdings LLC, a Delaware limited liability company, its sole
member
By: Chelsea GCA Realty Partnership, L.P., its managing member
By: Chelsea GCA Realty, Inc., its general partner
By: ___________________
Name:
Title:
For the purposes set forth in Article 4 and Article 7 hereof:
PRIME RETAIL, L.P. a Delaware limited partnership
By: Prime Retail, Inc., a Maryland corporation, its general partner
Name:
Title:
By: ______________________
Name:
Title:
PRIME RETAIL, INC. a Maryland corporation
By: _______________________
Name:
Title:
