AGREEMENT OF SALE AND PURCHASE
Exhibit
10.111
THIS
AGREEMENT OF SALE AND PURCHASE (“Agreement”) is
made
and entered into as of
this
25th
day of
April, 2007 (the “Effective
Date”),
by
and
between GLIMCHER UNIVERSITY
MALL LIMITED PARTNERSHIP, a Delaware limited partnership (“Seller”),
and
XXXXXX CAPITAL MANAGEMENT, LLC, a California limited liability company
(“Buyer”).
In
consideration of the mutual agreements contained in this Agreement and for
other
good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller agrees
to
sell, and Buyer desires to purchase, the Property described below, for the
Purchase Price
and
upon the terms and conditions set forth below:
ARTICLE
1
CERTAIN
DEFINITIONS AND FUNDAMENTAL PROVISIONS
This
Article 1 sets forth certain definitions and fundamental provisions for purposes
of this Agreement.
1.1
“Additional
Deposit” means
One
Million Five Hundred Thousand Dollars ($1,500,000.00).
Upon receipt by the Title Company, the Additional Deposit shall be deemed
included in the Deposit for all purposes under this
Agreement.
1.2 “Buyer’s
Address” means:
|
Xxxxxx
Capital Management, LLC
0000
Xxxxxxxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx,
X.X. 00000
Attn:
Xxx Xxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
With
a copy to:
Stroock
& Stroock & Xxxxx LLP
0000
Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Xxxxxx
Capital Management, LLC
000
X. Xxxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xx
Xxxxxxx, XX 00000
Attn:
Xxxxx Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
1.3
“Close”
or “Closing” means
confirmation by the Title Company that it has received
and is in a position to deliver to Buyer all of the documents to be delivered
by
Seller pursuant
to Section
4.3
of this
Agreement, and has received and is in a position to deliver to Seller
all of the funds and documents to be delivered by Buyer pursuant to Section
4.4
of this
Agreement.
1.5
“Contracts”
means
all
assignable service, supply, maintenance and construction contracts, if any,
relating to the Real Property or Personal Property, a list of which is attached
hereto as Exhibit
A.
Seller
agrees to terminate at Closing all Contracts that Buyer wishes to terminate
and
which by their terms can be terminated without cause upon notice from Seller.
Notwithstanding the foregoing, if Seller reasonably believes any Contract
is
necessary for its management
of the Property pursuant to the Management Agreement (as provided in
Section
4.11
below),
Buyer agrees such Contract shall not be terminated until the expiration of
the
Management Agreement.
1.6
“Deposit”
means
Fifty Thousand Dollars ($50,000.00). Seller shall not be obligated
to account to Buyer for any interest earned on the Deposit.
1.7
“Effective
Date” means
the
date of mutual execution of this Agreement.
1.8
“Improvements”
means
all
structures, improvements and fixtures located on the Land.
1.9
“Intangible
Property” means
all
assignable intangible personal property, if any, owned
by
Seller on the Closing Date, including the right to use the current names,
logos,
trademarks
and trade names of the Real Property (but not of the Seller or their affiliates,
parents or subsidiaries) and all licenses, permits and certificates of occupancy
issued by governmental authorities relating to the use, maintenance, occupancy
and/or operation of the Real Property and Personal Property.
1.10
“Land”
means
that certain land more particularly described on Exhibit
B
attached
hereto, together with all right, title and interest of Seller in and to all
easements in or upon
such
land and all other rights and appurtenances belonging or in anywise pertaining
to such land.
1.11
“Leases”
means
any
tenant leases, licenses, or other agreements directly affecting
the occupancy of the Real Property on the Closing Date.
1.12
“Personal
Property” means
all
fixtures, furniture, carpeting, draperies, appliances,
building supplies, equipment, machinery, inventory, and other tangible items
of
personal
property owned by Seller and affixed, attached to, placed or situated upon
the
Real Property
and used in connection with the ownership of the Real Property, a list of
which
is attached
hereto as Exhibit
C.
Personal
Property does not include any items of personal property which are either
(a)
leased to Seller, or (b) owned by third parties or Tenants.
1.13
“Property”
means,
collectively, the Real Property, and all of Seller’s right, title and
interest, if any, in the Contracts, the Intangible Property, the Leases,
the
Personal Property and
the
Security Deposits, as such terms are defined below.
2
1.15
“Real
Property” means
that land and improvements commonly known as “University
Mall” in Tampa, Florida, and located upon that real property described in
Exhibit
B.
1.16
“Security
Deposits” means
all
refundable security deposits of tenants at the Property
(the “Tenants”),
if any,
held by and in the possession of Seller.
1.17
“Seller
Address” means:
|
c/o
Glimcher Properties Limited Partnership
000
Xxxx Xxx Xx.
Xxxxxxxx,
Xxxx 00000
Attn:
Xxx X. Xxxxx
Senior
Vice President
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
|
With copies to:
c/o
Glimcher Properties Limited Partnership
000
Xxxx Xxx Xx.
Xxxxxxxx,
Xxxx 00000
Attn:
Xxxx Xxx Xxxxxx
Senior
Counsel
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
|
1.18
“Title
Company” means
Flagler Title Company, as agent for First American Title
Insurance Company, whose address is:
Flagler
Title Company
0
Xxxxxxx
Xxxxxx
Xxxxx
000
Xxxx
Xxxx
Xxxxx, XX 00000
Attention
Xxxxx X. Xxxxxxx, President
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
ARTICLE
2
CONSIDERATION
2.1
Purchase
Price.
The
Purchase Price to be paid by Buyer to Seller for the sale and
conveyance of the Property is specified in Section
1.14,
and
shall be paid to Seller as follows:
2.1.1
Five Million Dollars ($5,000,000.00) of the Purchase Price shall be paid
to
Seller
at
Closing in the form of an unsecured promissory note in the form of Exhibit
O (“Note”).
The
maker of the Note shall be the owner of one hundred percent (100%) of the
equity
interests in
(i)
the special purpose entity to which the Property shall be conveyed at Closing,
or (ii) if
3
Buyer’s
first mortgage lender requires that a portion of Buyer’s first mortgage loan be
recast as a mezzanine loan, then the special purpose entity that is the
mezzanine borrower; and
2.1.2
The
balance of the Purchase Price, after adjustments and credits, shall be paid
to
Seller at Closing by wire transfer in immediately available federal funds,
which
funds must
be
delivered in a manner to permit Title Company to deliver good funds to the
Seller or its designee on the Closing Date.
2.2
Deposit.
On
or
prior to the date that is two (2) business days following the Effective
Date, Buyer shall deposit the Deposit in escrow with the Title Company, by
wire
transfer.
The Deposit shall be non-refundable to Buyer except in the event of a default
by
Seller.
2.3
Additional
Deposit.
If
Buyer
gives the Notice of Intention to Proceed (as defined
in Section
3.5
of this
Agreement) to Seller, then within one (1) business day after the date
the
Notice of Intention to Proceed is given to Seller Buyer shall deposit the
Additional Deposit
in escrow with the Title Company, by wire transfer. The Additional Deposit
shall
thereupon
be deemed part of the Deposit and shall be non-refundable to Buyer except
in the
event
of
a default by Seller, or the failure of an express condition precedent in
this
Agreement to Buyer’s obligation to close on the purchase of the
Property.
2.4
Disposition
of Deposit.
If
the
transaction contemplated hereby is consummated in
accordance with the terms and provisions hereof, the Deposit shall be paid
to
Seller and credited
against the Purchase Price at Closing. If this Agreement is terminated either
automatically
or by either Seller or Buyer as specifically set forth in this Agreement,
Title
Company
shall deliver the Deposit to the party hereto entitled to same pursuant to
the
applicable terms of this Agreement pertaining to such termination.
ARTICLE
3
CONDITIONS
PRECEDENT; INSPECTION AND TITLE
3.1 Buyer’s
Inspections.
3.1.1
Inspections,
Tests and Studies. Seller
shall permit Buyer and its authorized
agents and representatives to enter upon the Real Property at all reasonable
times (and upon prior written notice to Seller) during normal business hours
to
inspect and conduct tests and studies
of the Real Property. Buyer shall not (i) make any intrusive physical testing
(environmental,
structural or otherwise) at the Property (such as soil borings, water samples
and the like) without Seller’s prior written consent, or (ii) conduct tenant
interviews at the Property, without Seller’s prior written consent, not to be
unreasonably withheld or delayed. Buyer shall notify Seller, in writing,
of its
intention, or the intention of its agents or representatives, to enter the
Real
Property at least twenty-four (24) hours prior to such intended entry. At
Seller’s option, the
Seller may be present for any inspection, test or study. Buyer shall bear
the
cost of all inspections,
tests and studies.
3.1.2
Buyer’s
Delivery of Information to Seller.
As
additional consideration for
the
transaction contemplated herein, Buyer agrees that if it does not Close on
the
purchase of the Property it will, at Buyer’s expense, provide to Seller promptly
upon Seller’s written request
4
copies
of
any and all reports, tests, studies and test results prepared by third parties
for Buyer with
respect to the Property owned by Seller, including, without limitation, those
involving the structural, geologic, environmental or other condition of or
relating to the Property (collectively, “Buyer’s
Information”).
Seller
hereby acknowledges that Buyer has not made and does not make
any
warranty or representation regarding the truth or accuracy of any Buyer’s
Information.
3.2
Document
Review.
3.2.1
Documents.
Buyer
acknowledges that Seller has, prior to the Effective Date,
delivered to Buyer the documents and materials regarding the Property set
forth
on Exhibit
D hereto.
All documents and property records delivered to, made available to, copied
and/or reviewed by Buyer pursuant to this Section
3.2
(including the Leases and Contracts, if any) shall sometimes be referred
to
collectively herein as the “Documents”.
Notwithstanding
anything in this Agreement to the contrary, Seller shall have no obligation
to
make available to Buyer, and Buyer shall have no right to inspect or make
copies
of, any of the Excluded Documents. As used herein, “Excluded
Documents”
shall
mean any documents involving Seller’s financing or refinancing of the Property,
any purchase and escrow agreements and correspondence pertaining to
Seller’s acquisition of the Property, any documents pertaining to the potential
acquisition of the
Property by any past or prospective purchasers, any third party purchase
inquiries and correspondence,
appraisals of the Property, internal budgets or financial projections, and
any
other
internal documents.
3.2.2
Confidential
Information. Buyer
acknowledges that it will have access to
and
the Documents include nonpublic information of Seller and its affiliates,
including, without
limitation, lists of existing and potential tenants, leases, agreements and
understandings with tenants and suppliers, the information supplied by or
on
behalf of Seller pursuant to this Article
3
and
business and financial information, as well as information obtained from
inspections
of the Property (all such information collectively, “Confidential
Information”).
Therefore,
Buyer agrees to (i) keep confidential all Confidential Information of Seller
and
its affiliates, (ii) not disclose any portion of the Confidential Information
in
any manner without the prior written consent of Seller, and (iii) use, and
permit its representatives to use, Confidential Information
exclusively in connection with the transaction contemplated by this Agreement
or
the
operation of the Property after the Closing; provided, however, that if Buyer
or
any of its representatives believes it is required by applicable law to disclose
any Confidential Information, Buyer
may
make such disclosure, but will promptly inform Seller and shall limit the
disclosure to
that
which is required by applicable law. For purposes of this Section, Confidential
Information
shall not include information that is generally available to the public,
or was
known to Buyer prior to the disclosure, or was independently developed by
Buyer.
Notwithstanding the foregoing,
Buyer may disclose Confidential Information to prospective lenders, prospective
tenants,
Buyer’s investors or prospective investors, Buyer’s attorneys, accountants and
other advisers and consultants, and to Buyer’s employees and agents with a need
to know, provided at the time of making such disclosure to any such third
party,
Buyer advises the third party of this confidentiality provision and that
such
third party is bound by this confidentiality provision.
3.2.3
Neither Seller nor Buyer shall make any press release, public statement,
or
other announcement regarding this Agreement or the transactions contemplated
hereby without the prior approval of the other party; provided, however,
that if
in its sole judgment Seller
5
3.2.4
Return
of Documents. Buyer
shall return to GPLP all originals of the Documents received by Buyer, together
with all of Buyer’s Information not previously delivered to GPLP, if Buyer does
not Close on the purchase of the Property.
3.2.5
No
Representation or Warranty By Seller. Buyer
acknowledges that many
of
the Documents were prepared (a) by third parties other than Seller, and/or
(b)
prior to Seller’s
ownership of the Property. Buyer further acknowledges, confirms, and agrees
that, except
as
expressly set forth in Section
5.6 of
this
Agreement: (i) neither Seller nor any of its partners, agents, employees
or
contractors has made any warranty or representation regarding the truth,
accuracy or completeness of any of the Documents or the source(s) thereof,
and
Buyer has not relied on the truth or completeness of the Documents, and (ii)
Seller has not undertaken any independent investigation as to the truth,
accuracy or completeness of the Documents and is providing
the Documents or making the Documents available to Buyer solely as an
accommodation
to Buyer.
3.3
Title.
Buyer
acknowledges and agrees that it has received from the Title Company:
(i) a commitment by First American Title Insurance Company to issue an owner’s
policy
of
title insurance, last revised April 24, 2007 (the “Commitment”)
for
the
real property, issued through the Title Company; (ii) a photocopy of all
documents (“Title
Documents”)describing
all Schedule B title exceptions shown on the Commitment; and (iii) a pro
forma
owner’s
policy of title insurance, issued April 24, 2007, by the Title Company as
agent
for First American Title Insurance Company, in the form of Exhibit
P (the
“Pro
Forma”). Buyer
hereby approves
the Pro Forma, and waives the right to object to any matters disclosed on
the
Pro Forma (“Permitted
Exceptions”). Seller
shall satisfy, without cost or expense to Buyer, the following requirements
set forth in Schedule “B” - Section 1 of the Commitment: requirements 1.a.
(subject
to the proviso in Section
4.3.1),
2,
through 6, 8., 9., 10., 12., 17. and 18. Buyer shall satisfy,
without cost or expense to Buyer, the following requirements set forth in
Schedule “B” - Section
1
of the Commitment: requirements 11. and 13. through 15. Buyer and Seller
agree
that (i)
all
non-delinquent property taxes and assessments (subject to prorations and
adjustments pursuant to Section 4.5), and (ii) all matters approved by Buyer
in
writing, or created by or on behalf of Buyer, including, without limitation,
any
documents or instruments to be recorded as part of any financing for the
acquisition of the Property by Buyer, shall also constitute Permitted
Exceptions. Seller shall discharge at or prior to Closing any mortgages or
deeds
of trust, and discharge or otherwise provide security to the Title Company
sufficient to remove from Buyer’s Owner’s Policy, as such term is hereinafter
defined, at Closing any other liens for liquidated amounts (collectively,
“Non-Discretionary
Defects”). Notwithstanding
the preceding at the Closing, Seller shall pay in full (or otherwise discharge)
all liens (other than liens for taxes and assessments not yet due and payable)
that are recorded against the Real Property.
3.4
Inspection
Obligations.
3.4.1
Buyer’s
Responsibilities. In
conducting any investigations, inspections, tests
and
studies of the Property and/or Documents, Buyer and its agents and
representatives shall:
(i) comply with all terms of the Leases regarding entry rights and obligations
of third
6
3.4.2
Buyer’s
Indemnity. Buyer
shall indemnify, defend, protect and hold Seller
and its agents, employees and contractors harmless from and against any and
all
liens, claims, losses, liabilities, damages, costs, expenses, causes of action
and expenses (including reasonable
attorneys’ fees and court costs) arising out of (i) Buyer’s inspections, tests
and/or studies
of the Property and Documents, and/or (ii) any violation by Buyer of the
provisions of this
Article
3;
provided, however, that Buyer shall have no obligation to indemnify Seller
with
respect to matters discovered, but not caused by Buyer. Notwithstanding any
provision to the contrary
contained in this Agreement, Buyer’s obligations and indemnity set forth in
Sections
3.2,
3.4
and
4.9
shall
survive the Closing or earlier termination of this Agreement and shall not
be
merged
with the Deed (as defined below) or any other Closing documents.
3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before May 18, 2007,
Buyer shall deliver to Seller Buyer’s Notice of intention to proceed with the
closing on the purchase of the Property ("Notice
of Intention to Proceed”) and,
within one (1) business day after such delivery, deposit the Additional Deposit
in escrow with the Title Company, by wire transfer.
If Buyer does not give the Notice of Intention to Proceed on or before May
18,
2007 and
pay
the Additional Deposit to the Title Company within one (1) business day after
such delivery, this Agreement shall automatically terminate, the Deposit
shall
be paid to Seller and thereafter the parties shall have no further liabilities
under this Agreement except pursuant to the obligations and indemnity set
forth
in Sections 3.2,
3.4
and
4.9.
3.6
Estoppel
Certificates.
3.6.1
On
or before May 24, 2007, Seller shall forward an estoppel certificate to
all
Property tenants, substantially in the form of Exhibit
E attached
to this Agreement (or the agreed
form of estoppel that is attached to a Property tenant’s lease) containing
information that is
consistent with the information set forth in the applicable tenant lease
and the
Rent Roll (as defined
in Section
5.6.6
below),
and thereafter use reasonable efforts to obtain, prior to the Closing
Date, executed tenant estoppel certificates from all of the then-current
Property tenants. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall Seller
be in
default hereunder for its failure to obtain all or any of the tenant estoppel
certificates, provided,
however, that it shall be a condition precedent to Buyer’s obligation to
purchase the
7
3.6.2
On
or before May 24, 2007, Seller shall forward to each owner of stores adjoining
the Improvements (a “Major
Occupant”) an
estoppel certificate with respect to any reciprocal
easement agreement entered into by such Major Occupant in a form reasonably
acceptable
to Buyer, containing information that is consistent with the reciprocal easement
agreement, and thereafter use reasonable efforts to obtain, prior to the
Closing
Date, executed estoppel certificates (the “REA
Estoppel Certificates”) from
all
of the then-current Major Occupants. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall Seller be in default hereunder
for its failure to obtain all or any of the Estoppel Certificates, provided,
however, that it shall be a condition precedent to Buyer’s obligation to
purchase the Property (which may be waived by Buyer) that prior to the Closing
Date, Seller deliver to Buyer an
executed REA Estoppel Certificate from one hundred percent (100%) of the
Major
Occupants,
not disclosing any material variance with the information forth in the
reciprocal easement
agreement and not alleging any material, uncured default of Seller under
such
reciprocal
easement agreement (the “Required
REA Estoppels”). Notwithstanding
anything herein
to
the contrary, if Seller has been unable to obtain (and deliver to Buyer)
all
Required REA
Estoppels at least three (3) business days prior to the Closing Date, and
Buyer
is not willing to
waive
the Required REA Estoppels condition, then either party shall have the right
to
delay the
Closing Date by up to thirty (30) days in order for Seller to continue to
attempt to obtain the missing Required REA Estoppels.
3.6.3
Seller agrees to reasonably cooperate with Buyer to obtain from tenants
any
subordination, non-disturbance and attornment agreements (“SNDAs”)
that
Buyer’s lender requests; provided, however, that in no event shall Seller be in
default hereunder for its failure to obtain
all or any SNDA and it shall not be a condition precedent to Buyer’s obligation
to purchase
the Property that Seller or Buyer obtain any such SNDA.
ARTICLE
4
ESCROW
AND CLOSING
4.1
Opening.
An
escrow
(the “Escrow”) shall
be
opened with Title Company by delivering
a fully executed copy of this Agreement to Title Company at the Title Company’s
address specified in Section 1.18. Buyer and Seller also agree to execute
(a)
any additional or
8
4.2
Closing
Date.
The
Closing shall occur through Escrow on the Closing Date. At buyer’s
election, Buyer may postpone the Closing Date from June 14, 2007 to June
28,
2007 by causing
the following to occur on or before June 13, 2007: (i) delivery to Seller
of
Buyer’s Notice
of
its election to postpone Closing; and (ii) payment into escrow with the Title
Company, by wire transfer, of the sum of One Million Dollars ($1,000,000.00)(the
“Second
Additional Deposit”). Upon
receipt by the Title Company, the Second Additional Deposit shall be deemed
included in the Deposit for all purposes under this Agreement.
4.3
Seller’s
Deliveries.
Prior
to
the Closing Date, Seller shall deliver to Title Company
the following:
4.3.1
Deed in the form attached hereto as Exhibit
F (the
“Deed”),
executed
and acknowledged by Seller, conveying title to the Real Property owned by
Seller
to Buyer, subject only to the Permitted Exceptions; provided, however, if
Buyer
and Seller shall in their sole discretion agree to do so, they shall cooperate
in the transfer of ownership of the Property as follows:
a new special purpose limited liability company (“New
LLC”) shall
be
formed by Seller into
which title to the Property shall be conveyed at Closing, and all of the
interests in such New LLC shall be transferred to Buyer at Closing;
4.3.2
Two
(2) counterpart originals of a xxxx of sale and general assignment in
the
form
attached hereto as Exhibit
G (the
“Xxxx
of Sale”), executed
by Seller as to the Personal Property;
4.3.3
Certification required by the Foreign Investors Real Property Tax Act, as
amended, and any similar state statute or regulation (the “Non-Foreign
Certificate”),
executed
by Seller;
4.3.4
A
certified rent roll;
4.3.5
Two
originals of that certain Guaranty of Theatre Lease Obligations in the form
attached hereto as Exhibit
H;
4.3.6
Two
originals of that certain Guaranty of Contract Obligations executed by
Glimcher Properties Limited Partnership (“GPLP”)
in
the
form attached hereto as Exhibit
N;
4.3.7
Seller’s reaffirmation of its representations and warranties under Section
5.6
of this Agreement; provided, however, that the Rent Roll at Closing may contain
changes due to
matters approved by Buyer, deemed approved by Buyer, or for which Buyer’s
approval was not
necessary; and
4.3.8
Such other documents as may be reasonably required by Title Company in order
to
close the transaction contemplated by this Agreement.
9
4.3.10
It
shall be a condition precedent to Buyer’s obligation to close that the
Title
Company has committed to issue in favor of Buyer an extended coverage owner’s
title insurance policy (form 10/17/92) upon Closing, in the form of the Pro
Forma (the “Owner’s
Policy”).
Buyer
shall obtain at its expense any survey update required by the Title Company
to
delete the so-called “survey exception”.
4.4
Buyer’s
Deliveries.
Prior
to
the Closing Date, Buyer shall deliver to Title Company
the following:
4.4.1
The
Purchase Price, plus all net prorations, closing costs and other funds required
to be paid or provided by Buyer under this Agreement (all monies Buyer is
required to deliver
shall be wired to the account designated by Title Company and available for
disbursement
no later than 12 noon EST, on the Closing Date);
4.4.2
Two
(2) counterpart originals of the Xxxx of Sale, executed by Buyer;
and
4.4.3
Such other documents as may be reasonably required by Title Company or Title
Company in order to close the transaction contemplated by this
Agreement.
4.5
Prorations.
The
following items shall be prorated with respect to the Property between
Seller and Buyer at the Closing by increasing or decreasing, as the case
may be,
the funds
to
be delivered by Buyer at the Closing, with all items pertaining to the month
of
Closing to
be
prorated based on the actual number of days in the month in which the Closing
occurs:
4.5.1
Real property taxes, assessments and personal property taxes (“Taxes”) with
respect to the Property shall be prorated based upon the latest available
tax
information such that
Seller shall be responsible for all such Taxes levied against the Property
to
and including the day prior to the Closing, and Buyer shall be responsible
for
all such Taxes levied against the Property
for the date of Closing and all periods thereafter. Any Taxes arising out
of the
sale of the
Real
Property to Buyer or its assignee or a subsequent sale or change in ownership
thereafter, and/or
arising out of any construction pertaining to the applicable portion of the
Real
Property following the Closing, shall be paid by Buyer when
assessed.
4.5.2
Subject to Section
4.5.3
below,
all costs and expenses with respect to the operation and maintenance of the
Property, including, without limitation, under any Contracts, utilities not
billing directly to the Tenants under the Leases, and all assessments, dues
or
other charges
due under any covenants, conditions and restrictions against the Property,
shall
be prorated
such that Seller shall be responsible for all such costs and expenses to
and
including the day
prior
to the Closing and Buyer shall be responsible for all such costs and expenses
for the date
of
Closing and all periods thereafter. Seller agrees to deliver detailed
information concerning
all such expenses to Buyer as reasonably requested by Buyer. Buyer shall
take
all steps
necessary to effectuate the transfer of all utilities to its name as of the
date
of Closing, and where
necessary, post deposits with the utility companies. Buyer and Seller shall
cooperate to have
all
utility meters read by the appropriate utility companies as of the date of
Closing. Seller
10
4.5.3
All
rents, reimbursements, income, revenue and other charges pertaining to
Leases
or otherwise with respect to the Property (collectively, “Revenues”) actually
collected by Seller on or prior to the Closing shall be prorated such that
such
Seller shall be entitled to all such
Revenues accruing up to and including the day prior to the Closing, and Buyer
shall be entitled
to all Revenues for the date of Closing and all periods thereafter. However,
there shall be
no
adjustment of the amount of funds to be delivered by Buyer at the Closing
for
Revenues from the Property which are attributable to the periods prior to
and
including the day prior to the Closing but which have not actually been
collected by Seller as of the date of Closing (the “Delinquent
Revenues”),
although
Seller shall be entitled to receive all such Delinquent Revenues
as provided hereinbelow. All Revenues which are collected by Buyer or Seller
on
or after the Closing shall be allocated as follows: first, to any past due
amounts owing to Buyer for the periods following the Closing Date, second,
to
the month in which the Closing occurs, and third, to any Delinquent Revenues
not
theretofore received by Seller for the periods prior to the Closing Date.
Buyer
agrees to use reasonable efforts to collect on behalf of Seller all Delinquent
Revenues,
but shall not be obligated to file or pursue litigation, declare any lease
default, or expend
any out-of-pocket funds to do so. Any Delinquent Revenues (including any
Revenues allocated to Delinquent Revenues, as provided hereinabove) collected
by
Buyer after the Closing Date, less any out-of-pocket funds reasonably expended
by Buyer to collect the same, shall be promptly
paid by Buyer to Seller. Notwithstanding any provision of this Agreement
to the
contrary,
if reasonable attempts of Buyer to do so on Seller’s behalf fail, Seller shall
be entitled to
attempt to collect all Revenues which either (a) became due prior to the
Closing, or (b) related to periods prior to the Closing but were not due
and
payable until after the Closing, from the Tenants,
guarantors or other third parties responsible for the payment of such Revenues,
provided,
however, after the Closing Seller shall not be entitled to pursue eviction
proceedings or other
actions to dispossess any Tenant in connection with any such collection efforts.
Notwithstanding
anything set forth herein to the contrary, all percentage rent or overage
rent
(“Percentage
Rent”) under
the
Leases shall be prorated between Buyer and Seller on a Lease by Lease
basis, with Seller entitled proportionately to Percentage Rent paid or payable
or attributable
under each Lease for any lease year or part thereof occurring prior to the
Closing Date
(“Seller’s
Percentage Rent Period”).
Buyer
shall be entitled proportionately to Percentage
Rent paid or payable or attributable under each Lease with respect to any
lease
year or
part
thereof occurring from and after the Closing Date (“Buyer’s
Percentage Rent Period”).
The
foregoing proration shall be made as follows on a Lease by Lease
basis:
(a) subject
to the balance of this Subsection
4.5.3,
Seller
shall retain all
Percentage Rent payments received by it on and prior to the Closing Date
that
relate to Seller’s
Percentage Rent Period and Buyer shall retain all Percentage Rent payments
received by it after the Closing Date that relate to Buyer’s Percentage Rent
Period;
(b) Seller
shall deliver to Buyer a statement of all Percentage Rent collected by Seller
with respect to any lease year in which the Closing Date occurs (if any)
on a
Lease by Lease basis along with a copy of the Percentage Rent invoices and
sales
reports which support such collections; and
11
After
Closing, Seller shall promptly remit to Buyer any Percentage Rent received
by
Seller attributable to Buyer’s Percentage Rent Period and Buyer shall promptly
remit to Seller any Percentage Rent received by Buyer attributable to Seller’s
Percentage Rent Period; this provision shall survive the Closing.
4.5.4
Seller shall retain the Security Deposits, if any, and the amount thereof
shall
be
credited to the Purchase Price.
4.5.5
Within three (3) months following the Closing (or such earlier date after
the
Closing when such figures are available), Seller and Buyer shall re-prorate
real
and personal property
taxes and other items of income and expenses based upon actual bills or invoices
received
after the Closing (if original prorations were based upon estimates) and
any
other items necessary to effectuate the intent of the parties that all income
and expense items be prorated as provided above in this Section
4.5.
Any
re-prorated items shall be promptly paid to the party entitled
thereto.
4.5.6
Within five (5) months following the end of the year in which Closing
occurs,
Seller shall prepare 2007 year-end reconciliation statements for all tenants
of
the Property,
which reconciliation statements shall be delivered to Buyer and which Buyer
shall deliver
to the tenants and Seller and Buyer shall again re-prorate all items of income
and expenses
for the year of Closing based upon the actual amount of such expenses and
payments from
tenants of their estimated shares thereof, and any other items necessary to
effectuate the intent
of
the parties that all income and expense items be prorated as provided above
in
this Section
4.5.
Any
re-prorated items shall be promptly paid to the party entitled thereto. Seller
shall
prepare and deliver to Buyer 2006 year-end reconciliation statements for
all
tenants, which Buyer
shall deliver to the applicable tenants. Seller also shall cooperate with
Buyer
after the Closing
in connection with Buyer’s preparation of 2007 year-end reconciliation
statements for all tenants,
which Buyer shall deliver to the applicable tenants.
4.5.7
Any
and all payments made by tenants pursuant to their Leases to any promotional
or marketing fund shall not be prorated, but shall instead become the sole
and
exclusive
property of Buyer upon closing.
4.5.8
Any
adjustments pursuant to Section 5.6.12;
4.5.9
Seller is a party to an Advertising Agreement dated August 10, 2005,
between
Seller and Coca-Cola Enterprises, Inc., dba Florida Coca-Cola Bottling
Company
12
4.5.10
The provisions of this Section 4.5 shall survive Closing.
4.6
Actions
of Title Company.
On
the
Closing, Title Company shall promptly undertake
all of the following in the manner hereinbelow indicated:
4.6.1
Disbursement
of Funds.
Title
Company shall disburse all funds deposited
with Title Company by Buyer as follows (and in the following
order):
(a) Pay
all
closing costs which are to be paid through Escrow (including,
without limitation, recording fees, brokerage commissions, Title Policy charges
and escrow fees).
(b) After
deducting therefrom all of the items covered by Section
4.6.1(a)
above
which are chargeable to the account of Seller (as provided in Section
4.8
below),
and
either deducting therefrom or adding thereto (as appropriate) the net amount
of
the prorations
pursuant to Section
4.5
above,
disburse the Purchase Price to Seller in accordance with
separate wiring instructions to be delivered to Title Company by
Seller
(c) Disburse
any remaining funds to Buyer in accordance with separate
wiring instructions to be delivered to Title Company by Buyer.
4.6.2
Recordation.
Cause
the
Deed and any other documents which the parties hereto
may mutually direct to be recorded in the Official Records of the county
where
the Property
is located, and obtain conformed copies thereof for distribution to Buyer
and
Seller.
4.6.3
Deliveries
by Title Company. Title
Company shall:
(a) Combine
each of the two (2) original counterparts of the Xxxx of Sale
into
two (2) separate fully executed originals, and deliver one (1) fully executed
original of the Xxxx of Sale each to Seller and to Buyer; and
(b) Deliver
the Non-Foreign Certificate to Buyer.
(c) Deliver
to Buyer Seller’s certified rent roll; and
(d) Deliver
to Buyer Seller’s reaffirmation of its representations and warranties under
Section
5.6
of this
Agreement.
4.7
Seller’s
Deliveries to Buyer.
Upon
confirmation of the Closing, Seller shall deliver
to Buyer possession of the Real Property and Personal Property, subject only
to
the Permitted Exceptions.
13
4.9
Real
Estate Commission.
At
Closing (but only in the event of a Closing in strict accordance
with this Agreement), Seller agrees to pay a real estate commission to Eastdil
Secured
(“Eastdil”) in
accordance with a separate agreement between Seller and Eastdil. Except
as
set
forth in this Section
4.9,
each
party hereto hereby represents and warrants to the other party
that no real estate brokerage commission is payable to any person or entity
in
connection with the transaction contemplated herein based upon any dealings
or
actions by the party making such
representation. Each party further agrees to and shall indemnify, protect,
defend and hold the
other
party harmless from and against the payment of any commission to any person
or
entity claiming by, through or under the indemnifying party. This
indemnification shall extend to any and
all
claims, liabilities, costs, losses, damages, causes of action and expenses
(including reasonable
attorneys’ fees and court costs) arising as a result of such claims and shall
survive the Closing.
4.10
Theatre
Lease Guaranty.
A
portion
of the Property is encumbered by that certain
Lease Agreement dated February 1, 1995, as amended (“Theatre
Lease”),
between
Seller
and Ohio Entertainment Corporation, an affiliate of Seller. Seller agrees
to
provide at Closing,
in the form attached hereto as Exhibit
H,
a
guaranty by Glimcher Properties Limited Partnership of the monetary obligations
of Ohio Entertainment Corporation under the Theatre Lease for the duration
of
the current term thereof.
4.11
Management
Agreement.
At
Closing Seller and Buyer shall enter into an agreement
for the management of the Property by Seller, in the form attached hereto
as
Exhibit
I (“Management
Agreement”).
ARTICLE
5
AS-IS
TRANSACTION; NO REPRESENTATIONS AND/OR WARRANTIES
5.1
Seller
Disclaimer.
Except
as
specifically set forth in Section
5.6
hereinbelow, it is
understood and agreed that neither Seller nor any of its members, partners,
agents, employees or contractors has made and is not now making, and Buyer
has
not relied upon and will not rely upon
(directly or indirectly), any warranties, representations or guaranties of
any
kind or character,
express or implied, oral or written, past, present or future, with respect
to
the Property, including, but not limited to, warranties, representations
or
guaranties as to (i) matters of title,
14
(ii)
environmental matters relating to the Property or any portion thereof, (iii)
geological conditions, including, without limitation, subsidence, subsurface
conditions, water table, underground water reservoirs, limitations regarding
the
withdrawal of water and earthquake faults and the resulting damage of past
and/or future earthquakes, (iv) whether, and to the extent to which, the
Property or any portion thereof is affected by any stream (surface or
underground), body of water, flood prone area, flood plain, floodway or special
flood hazard, (v) drainage, (vi) soil conditions, including the existence
of
instability, past soil repairs, soil additions or conditions of soil fill,
or
susceptibility to landslides, or the sufficiency of any undershoring,
(vii) zoning to which the Property or any portion thereof may be subject,
(viii) the availability of any utilities to the Property or any portion thereof
including, without limitation, water, sewage, gas and electric, (ix) usages
of
adjoining property, (x) access to the Property or any portion thereof, (xi)
the
value, compliance with the plans and specifications, size, location, age,
use,
design, quality, descriptions, suitability, structural integrity, operation,
title to, or physical or financial condition of the Property or any portion
thereof, (xii) any income, expenses, charges, liens, encumbrances, rights
or
claims on or affecting or pertaining to the Property or any part thereof,
(xiii)
the presence of hazardous substances in or on, under or in the vicinity of
the
Property, (xiv) the condition or use of the Property or compliance of the
Property with any or all past, present or future federal, state or local
ordinances, rules, regulations or laws, building, fire or zoning ordinances,
codes or other similar laws, (xv) the existence or non-existence of underground
storage tanks, (xvi) any other matter affecting the stability or integrity
of
the Property, (xvii) the potential for further development of the Property,
(xviii) the existence of vested land use, zoning or building entitlements
affecting the Property, (xix) the merchantability of the Property or fitness
of
the Property for any particular purpose (Buyer affirming that Buyer has not
relied on the skill or judgment of Seller or GPLP or any of their respective
agents, employees or contractors to select or furnish the Property for any
particular purpose, and that Seller makes no warranty that the Property is
fit
for any particular purpose) or (xx) tax consequences (including, but not
limited
to, the amount, use or provisions relating to any tax credits). Buyer further
acknowledges that, except as expressly set forth in Section 5.6 of this
Agreement, any information of any type which Buyer has received or may receive
from Seller or any of Seller’s agents, employees or contractors including,
without limitation, any environmental reports and surveys, is furnished on
the
express condition that Buyer shall not rely thereon, but shall make an
independent verification of the accuracy of such information, all such
information being furnished without any representation or warranty
whatsoever.
5.2
Buyer
Acknowledgments.
Buyer
represents that it is a knowledgeable, experienced
and sophisticated Buyer of real estate and that it has relied and shall rely
solely on (i)
its
own expertise and that of Buyer’s consultants in purchasing the Property, and
(ii) Buyer’s own
knowledge of the Property based on its investigations and inspections of
the
Property. Buyer
has
conducted, or by the Closing will conduct, such inspections and investigations
of the Property
as Buyer deemed or shall deem necessary, including, but not limited to, the
physical and
environmental conditions thereof, and shall rely upon the same. Upon Closing,
subject to Seller’s representations and warranties under Section
5.6
of this
Agreement, Buyer shall assume the risk that adverse matters, including, but
not
limited to, adverse physical and environmental conditions, may not have been
revealed by Buyer’s inspections and investigations. Buyer acknowledges
and agrees that upon Closing, Seller shall sell and convey to Buyer and Buyer
shall
accept the Property “as is, where is,” with all faults and defects (latent and
apparent). Buyer
further acknowledges and agrees that there are no oral agreements, warranties
or
15
5.3
Buyer
Represented by Counsel.
Buyer
hereby confirms to Seller that (i) Buyer is
not in
a disparate bargaining position in relation to Seller, (ii) Buyer is represented
by legal counsel in connection with the transaction contemplated by this
Agreement, and (iii) Buyer is purchasing the Property for business, commercial,
investment or other similar purpose.
5.4
Buyer’s
Release of Seller.
5.4.1
Seller
Released From Liability. Buyer
and
anyone claiming by, through or
under
Buyer, hereby waives its right to recover from and fully and irrevocably
releases Seller and
its
employees, officers, directors, representatives, agents, servants, attorneys,
affiliates, parent,
subsidiaries, successors and assigns, and all persons, firms, corporations
and
organizations
in its behalf (“Released
Parties”) from
any
and all claims, responsibility and/or liability
that it may now have or hereafter acquire against any of the Released Parties
for any costs,
loss, liability, damage, expenses, demand, action or cause of action arising
from or related to
(i)
the condition (including any construction defects, errors, omissions or other
conditions, latent
or
otherwise, and the presence in the soil, air, structures and surface and
subsurface waters of materials or substances that have been or may in the
future
be determined to be hazardous substances or otherwise toxic, hazardous,
undesirable or subject to regulation and that may need to
be
specially treated, handled and/or removed from the Property under current
or
future federal, state
and
local laws regulations or guidelines), valuation, salability or utility of
the
Property, or its
suitability for any purpose whatsoever, and (ii) any information furnished
by
the Released Parties under or in connection with this Agreement; provided,
however, that the foregoing shall not
release Seller from liability to Buyer arising from a breach by Seller of
any
representations or warranties
of Seller pursuant to Section
5.6
of this
Agreement. Except as set forth in the preceding
sentence, this release includes claims or which Buyer is presently unaware
or
which Buyer does not presently suspect to exist which, if known by Buyer,
would
materially affect Buyer’s
release to Seller. In this connection and to the extent permitted by law,
but
except liability
to Buyer arising from a breach by Seller of any of the representations or
warranties of Seller pursuant to Section
5.6
of this
Agreement, Buyer hereby agrees, represents and warrants that Buyer realizes
and
acknowledges that factual matters now unknown to it may have given or
may
hereafter give rise to causes of action, claims, demands, debts, controversies,
damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected,
and Buyer
further agrees, represents and warrants that the waivers and releases herein
have been negotiated
and agreed upon in light of that realization and that Buyer nevertheless
hereby
releases,
discharges and acquits Seller from any such unknown causes of action,
claims,
16
5.5 Interim
Covenants of Seller.
5.5.1
From the Effective Date through the Closing Date, Seller shall maintain
the
Property in the same manner as it has maintained the Property prior to the
effective date pursuant
to the normal course of business, subject to reasonable wear and tear and
further subject to
destruction by casualty or other events beyond the control of
Seller.
5.5.2
From and after the Effective Date, until May 4, 2007, Seller shall not
modify
any existing instrument nor enter into a new contract, lease or other material
agreement affecting all or any portion of the Property, or the use of it,
that
is not terminable on thirty (30) days notice, without the prior written consent
of Buyer, which consent will not be unreasonably withheld or delayed. Buyer’s
failure to object to any proposed new lease or lease modification within
five
(5) business days after receipt of Seller’s request for consent shall be deemed
an approval
by Buyer thereof, provided Seller’s request for consent clearly states in all
capital letters
in a prominent place the date by which the Lease will be deemed approved
if
Buyer does not object. From and after May 4, 2007, Seller shall not enter
into
or extend, renew, modify or replace any Leases or other agreements relating
to
the Property that are not terminable on thirty (30) days notice without the
prior written consent of Buyer, which consent may be withheld in Buyer’s
sole discretion. Any and all tenant improvement costs and brokerage commissions
payable
with respect to any new leases and/or amendments, modifications or renewals
of
existing Leases which are executed after the Effective Date and approved
(or
deemed approved) by Buyer hereunder
shall be paid by Buyer. Seller shall provide Buyer with copies of all such
new
Leases and
all
extensions, renewals, modifications and replacements of existing Leases
following execution
thereof.
5.6
Seller’s
Representations.
Seller
makes the following representations and warranties
with respect to itself and the Property owned by it. For all purposes of
this
Section
5.6,
Buyer hereby acknowledges and agrees that the terms “to
Seller’s knowledge” shall
mean only the then-current knowledge of the Senior Vice President of Leasing
(Xxxxxx X. Drought), and Controller (Xxxx Xxxxxx) of GPLP, and the Regional
Manager of the Property (Xxx Xxxxxxxx), and
the
General Manager of the Property (Xxx Xxxxx), without any duty to investigate
and
without
any actual or implied liability to such individuals (and Seller hereby confirms
that such individuals
are the representatives of Seller that have the most knowledge of the truth
and
accuracy
of the representations and warranties set forth hereinbelow):
5.6.1
To
Seller’s knowledge, Seller has not received written notice that the current
use and operation of the Property is not in compliance with applicable building
codes, local, state and federal laws and regulations.
5.6.2
To
Seller’s knowledge, Exhibit
A identifies
all of the Contracts affecting the
Property (other than the Leases), and all Contracts delivered or made available
to Buyer pursuant to the provisions of this Agreement are true and correct
copies, except as noted on
17
5.6.3
Seller has not received written notice of any condemnation, environmental,
zoning or other land use regulation proceedings, either instituted or, to
Seller’s knowledge, planned to be instituted, which would materially and
adversely affect the use and operation of the Property as currently being
operated by Seller.
5.6.4
There is no litigation or other legal proceeding pending or, to Seller’s
knowledge,
threatened against Seller or involving the Property, other than as listed
on the
attached
Exhibit
J,
and that
all claims identified on Exhibit
J as
“fall/slip” are covered by Seller’s
existing insurance policies.
5.6.5
This Agreement and all documents executed by Seller which are to be delivered
to Buyer at the Closing are or at the time of Closing will be duly authorized,
executed, and delivered by each person comprising Seller, are or at the time
of
Closing will be legal, valid, and binding obligations of Seller, and do not
and
at the time of Closing will not violate any provisions of Seller’s formation or
governing documents or any provisions of any agreement or judicial
order to which Seller (or any person comprising Seller) is a party or to
which
Seller or the
Property is subject.
5.6.6
The
rent roll attached hereto as Exhibit
K (“Rent
Roll”) identifies
all of the
tenants, licensees or other occupants of the Property as of the Effective
Date,
and is true and correct in all material respects as of the Effective Date.
Copies of the Leases delivered or made available to Buyer pursuant to this
Agreement are true and correct copies of all such Leases and are, to Seller’s
actual knowledge, in full force and effect, and to Seller’s actual knowledge
there are no other agreements, written or oral, with respect to the
tenancies.
5.6.7
To
Seller’s knowledge, Seller has not received written notice from any competent
governmental agency that there exist Hazardous Materials in, on or under
the
Property in
violation of applicable laws, rules, regulations, ordinances or orders, and
to
Seller’s knowledge,
except for non-friable asbestos containing materials, none exist.
5.6.8
To
Seller’s knowledge, Seller is not in default under any of the Leases,
any
of
the Contracts, or any reciprocal easement agreement, and to Seller’s knowledge
no tenant is
in
default under its lease beyond applicable cure periods, except for any monetary
delinquencies
shown on the Aged Delinquent Report attached hereto as Exhibit
L.
5.6.9
To
Seller’s knowledge, all operating statements and/or other information pertaining
to the income and expenses of the Property delivered or made available to
Buyer
pursuant to the provisions of this Agreement are true and correct copies,
and do
not contain any material inaccuracies or omissions.
5.6.10
There are no employees of Seller located at the Property, and there are no
vacation,
pension obligations or other salary or benefits with respect to any employees
of
Seller at
the
Property that would become the obligation of Buyer upon Closing.
18
5.6.12
Attached hereto as Exhibit
M is
a list
of all tenant improvement allowances
that will be due to tenants provided the lease requirements therefore are
satisfied, that have not been fully paid as of the Effective Date (“Tenant
Improvement Allowances”).
Seller
and Buyer agree that Buyer will receive a credit at Closing in an amount
equal
to the Tenant Improvement
Allowances that remain unpaid at Closing. Notwithstanding anything to the
contrary
in this Subsection 5.6.12, Seller and Buyer acknowledge that with respect
to
those Leases
fully executed prior to the Effective Date, Seller and Buyer were aware of,
and
considered
the effect of, the Tenant Improvement Allowances identified in Exhibit
M attached
hereto, and, therefore, there shall be no adjustment in the Purchase Price
as a
result of the same.
ARTICLE
6
REMEDIES
6.1
Liquidated
Damages; Seller’s Remedies.
If the
Closing and the consummation of
the
transaction herein contemplated do not occur as herein provided by reason
of any
breach of
Buyer,
which is not cured within ten (10) days after receipt by Buyer of written
notice
thereof, Buyer
and
Seller agree that it would be impractical and extremely difficult to estimate
the damages
that Seller may suffer as a result thereof. Therefore, Buyer and Seller do
hereby agree that
a
reasonable estimate of the total net detriment that Seller would suffer if
Buyer
breaches this
Agreement and fails to complete the purchase of the Property is and shall
be, as
Seller’s sole and
exclusive remedy (whether at law or in equity), and as the full, agreed and
liquidated damages
for such breach, an amount equal to such portion of the Deposit as Seller
has
actually received. Upon any such breach by Buyer, unless otherwise specified,
this Agreement shall be terminated and neither party shall have any further
rights or obligations hereunder, each to the other, except for the right
of
Seller to collect such liquidated damages from Buyer; provided, however,
that
this liquidated damages provision shall not limit Seller’s right to (i) receive
reimbursement for or recover damages in connection with Buyer’s indemnity of
Seller and/or breach of Buyer’s obligations pursuant to Sections
3.2,
3.4
and
4.9,
(ii)
injunctive relief due to Buyer’s breach of its obligations under this Agreement,
and/or (iii) pursue any and all remedies available at law or in equity if,
following any termination of this Agreement, Buyer or any party related to
or
affiliated with Buyer assert any claims or right to the Property that would
otherwise delay or prevent Seller from having clear, indefeasible and marketable
title to the Property.
6.2
Buyer’s
Remedies.
If
Seller
fails to perform any obligation pursuant to this Agreement
for any reason (except due to a failure of any condition set forth in this
Agreement or any
failure by Buyer to perform hereunder), then Buyer shall elect, as its sole
remedy, either to: (i)
terminate this Agreement by giving Seller and the Title Company timely written
notice of such
election prior to or upon the Closing Date, in which case Buyer shall be
entitled to a reimbursement of the Deposit; or (ii) enforce specific performance
of this Agreement, in which event there shall be no reduction of the Purchase
Price and Buyer shall not be entitled to recover any
damages (whether actual, direct, indirect, consequential, punitive or otherwise)
notwithstanding
such failure or breach by Seller, but Buyer shall be entitled to recover
from
Seller
Buyer’s reasonable attorney’s fees if it is successful in any such action.
Notwithstanding
19
ARTICLE
7
CONDEMNATION
7.1
Condemnation.
If,
prior
to Closing, any governmental authority or other entity having
condemnation authority shall institute an eminent domain proceeding with
regard
to a “Material
Portion” of the Real Property (as defined below), and the same is not dismissed
prior to
the
Closing Date, Buyer shall be entitled, as its sole remedy, to terminate this
Agreement upon written notice to Seller (i) within fifteen (15) days following
notice by Seller to Buyer of such condemnation,
or (ii) on the Closing Date, whichever occurs first. If Buyer does not terminate
this
Agreement pursuant to the preceding sentence, Buyer shall be conclusively
deemed
to have elected
to accept such condemnation and waives any right to terminate this Agreement
as
a result thereof.
For purposes of this Section
7.1,
a
“Material
Portion” shall
mean that portion of the Real
Property that would result in: (i) an award of Five Million Dollars
($5,000,000.00) or more if
taken;
(ii) the permanent closing, without replacement, of any currently existing
entrance to the Property;
or (iii) the loss of more than three percent (3%) of all parking spaces on
the
Property; or
(iv)
the loss of parking spaces or other common areas sufficient to give any Major
Anchor Tenant the right to terminate its lease. If Buyer elects to terminate
this Agreement under this
20
7.2
Nonmaterial
Condemnation.
If,
prior
to Closing, a taking or condemnation relating
to the Property has occurred, or is threatened, which is not described in
Section
7.1,
the
Closing shall take place as provided in this Agreement with no reduction
of the
Purchase Price, and
Seller shall assign to Buyer at Closing, as part of the Intangible Property,
all
of Seller’s right, title
and
interest in and to all proceeds resulting or to result from said
condemnation.
ARTICLE
8
CASUALTY
DAMAGE
If,
prior
to the Closing, any of the Improvements shall be damaged by fire or other
casualty
(collectively, “Casualty”),
Seller
shall deliver to Buyer written notice (“Casualty
Loss Notice”) of
such
Casualty, together with Seller’s determination as to whether the damage
constitutes
a Material Damage (as defined below). For the purposes of this Article
8,
“Material
Damage” shall
mean damage to the Improvements which is of such nature that would result
in
(i)
a
cost of restoring the same to their condition prior to the Casualty, in Seller’s
reasonable determination as provided in the Casualty Loss Notice, equal to
or
exceeding an amount equal to Five Million Dollars ($5,000,000.00); (ii) the
permanent closing, without replacement, of any currently existing entrance
to
the Property; (iii) the loss of more than three percent (3%) of all parking
spaces on the Property; or (iv) the loss of parking spaces or other common
areas
sufficient
to give any Major Anchor Tenant the right to terminate its lease. If, prior
to
the Closing,
the Improvements sustain Material Damage by a Casualty, Buyer may terminate
this
Agreement by delivering written notice thereof to Seller and Title Company
within the earlier of (i) fifteen (15) days after Buyer’s receipt of the
Casualty Loss Notice or (ii) the Closing Date. If the Improvements shall
be
damaged by a casualty which is not a Material Damage, or if Buyer fails to
deliver written notice of termination within the time period set forth
hereinabove for a Material Damage, then: (A) the parties shall proceed to
close
this transaction in accordance with the terms of this Agreement; (B) at the
Closing, Buyer shall receive a credit against the Purchase Price
in
an amount equal to the deductible under the applicable Seller’s casualty
insurance policy;
and (C) Seller shall, as part of the Intangible Property, assign to Buyer
all of
Seller’s rights
in
the resulting casualty insurance proceeds. If Buyer elects (and has the right)
to terminate
this Agreement under this Article
8,
the
Deposit shall be returned to Buyer, and thereafter
neither party shall have any further rights or obligations hereunder, except
the
obligations
and indemnity provided in Sections 3.2,
3.4
and
4.9.
21
ARTICLE
9
MISCELLANEOUS
9.1
Entire
Agreement.
This
Agreement contains the entire agreement of the parties hereto.
There are no other agreements, oral or written, and this Agreement can be
amended only by written agreement signed by the parties hereto, and by
reference, made a part hereof.
9.2
Agreement
Binding on Parties; Assignment.
This
Agreement, and the terms, covenants, and conditions herein contained, shall
inure to the benefit of and be binding upon the heirs,
personal representatives, successors, and assigns of each of the parties
hereto.
Subject to the
provisions of the immediately succeeding sentence, Buyer shall not assign
its
rights under this
Agreement without first obtaining Seller’s prior written consent may be given or
withheld in Seller’s sole and absolute discretion. Notwithstanding the
preceding, Buyer may assign its rights under
this Agreement (without being required to obtain Seller’s consent) only upon the
following conditions:
(i) the Deposit and Additional Deposit (and, if applicable, the Second
Additional Deposit) must have been timely delivered in accordance with the
applicable provisions of this Agreement;
(ii) Buyer’s Notice of Intent to Proceed must have been timely delivered in
accordance
with the applicable provisions of this Agreement; (iii) Buyer shall remain
primarily liable for the performance of Buyer’s obligations under this
Agreement; (iv) the assignee shall expressly
assume in writing all of Buyer’s obligations under this Agreement; and (vi)
Buyer shall deliver
to Seller a copy of a fully executed written assignment and assumption agreement
between
Buyer and such assignee at least five (5) business days prior to the
Closing.
9.3
Notice.
Any
notice, communication, request, reply or advice (collectively, “Notice”)
provided
for or permitted by this Agreement to be made or accepted by either party
must
be
in writing. Notice may, unless otherwise provided herein, be given or served
(i)
by facsimile
to the facsimile numbers set forth in Section
1.2
and
Section
1.17
above,
with confirmation
of successful transmission; (ii) by delivering the same to such party, or
an
agent of such party, in person or by commercial courier, at the address for
such
party set forth in this Agreement, or (iii) by depositing the same into custody
of a nationally recognized overnight delivery service, such as Federal Express
or DHL. Notice given in any other manner shall be effective
only if and when received by the party to be notified between the hours of
9:00
A.M. and 5:00 P.M. of any business day with delivery made after such hours
to be
deemed received the
following business day. For the purposes of notice, the addresses of Seller,
Buyer, Title Company
and Title Company shall, until changed as hereinafter provided, be as set
forth
in Article
1.
The
parties hereto shall have the right from time to time to change their respective
addresses,
and each shall have the right to specify as its address any other address
within
the United
States of America by at least five (5) days written notice to the other
party.
9.4
Time
of the Essence.
Time
is
of the essence in all things pertaining to the performance
of this Agreement.
9.5
Governing
Law.
This
Agreement shall be construed in accordance with the laws of
the
State of Florida.
9.6
Currency.
All
dollar amounts are expressed in United States currency.
22
9.8
Business
Days.
If
any
date or any period provided for in this Agreement shall end
on a
Saturday, Sunday or legal holiday, the applicable date or period shall be
extended to the first business day following such Saturday, Sunday or legal
holiday.
9.9
No
Recordation.
Without
the prior written consent of Seller, there shall be no recordation
of either this Agreement or any memorandum hereof, or any affidavit pertaining
hereto
and any such recordation of this Agreement or memorandum hereto, by Buyer
without the prior written consent of Seller shall constitute a default hereunder
by Buyer, whereupon this Agreement
shall, at the option of Seller, terminate and be of no further force and
effect.
Upon such
termination, the Deposit shall be immediately delivered to Seller, whereupon
the
parties shall
have no further duties or obligations one to the other except the obligations
and indemnity provided in Sections
3.2,
3.4
and
4.9.
9.10
Multiple
Counterparts.
This
Agreement may be executed in multiple counterparts
(each of which is to be deemed original for all purposes).
9.11
Severability.
If
any
provision of this Agreement or application to any party or circumstance shall
be
determined by any court of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the application of such
provision
to such person or circumstances, other than those as to which it is so
determined invalid
or unenforceable, shall not be affected thereby, and each provision hereof
shall
be valid and shall be enforced to the fullest extent permitted by
law.
9.12
Survival.
Unless
otherwise expressly provided for in this Agreement, the representations
(if any), warranties (if any), indemnification obligations (if any) and
covenants (if
any)
of the parties set forth in this Agreement shall survive consummation of
the
transaction contemplated by this Agreement and the delivery and recordation
of
the Deed for one (1) year after the Closing Date. The obligations of Seller
pursuant to this Section
9.12,
up to
but not exceeding
Three Million Dollars ($3,000,000), shall be guaranteed by GPLP, pursuant
to the
form
of
Guaranty attached hereto as Exhibit
N.
9.13
1031
Exchange.
Buyer
and
Seller acknowledge that either party may wish to structure
this transaction as a tax deferred exchange of like-kind property within
the
meaning of Section 1031 of the Internal Revenue Code. Each party agrees to
reasonably cooperate with the other
party to effect such an exchange; provided, however, that: (i) the cooperating
party shall not
be
required to acquire or take title to any exchange property; (ii) the cooperating
party shall not
be
required to incur any expense (excluding attorneys’ fees) or liability
whatsoever in connection
with the exchange, including, without limitation, any obligation for the
payment
of any
escrow, title, brokerage or other costs incurred with respect to the exchange;
(iii) no substitution
of the effectuating party shall release said party from any of its obligations,
warranties
or representations set forth in this Agreement or from liability for any
prior
or subsequent
default under this Agreement by the effectuating party, its successors, or
assigns, which
obligations shall continue as the obligations of a principal and not of a
surety
or guarantor;
23
[Signatures
pages follow. No further text on this page.]
24
“BUYER”
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Authorized Signatory
“SELLER”
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
its
sole
General Partner
By:
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
President
and Chief Executive Officer
25
EXHIBITS:
| EXHIBIT “A” |
Contracts
|
| EXHIBIT “B” |
Legal
Description
|
| EXHIBIT “C” |
List
of Personal Property
|
| EXHIBIT “D” |
List
of Due Diligence Materials
|
| EXHIBIT “E” |
Form
of Tenant Estoppel Certificate
|
| EXHIBIT “F” |
Form
of Deed
|
| EXHIBIT “G” |
Form
of Xxxx of Sale and General
Assignment
|
| EXHIBIT “H” |
Form
of Guaranty of Theatre Lease
Obligations
|
| EXHIBIT “I” |
Form
of Management Agreement
|
| EXHIBIT “J” |
List
of Litigation
|
| EXHIBIT “K” |
Rent
Roll
|
| EXHIBIT “L” |
Aged
Delinquent Report
|
| EXHIBIT “M” |
List
of pending Tenant Improvement
Allowances
|
| EXHIBIT “N” |
Form
of Guaranty by GPLP of obligations of Seller under Section
9.12
|
| EXHIBIT “O” |
Form
of Note
|
| EXHIBIT “P” |
Pro
Forma
|
26
FIRST
AMENDMENT TO
This
First Amendment to Agreement of Sale and Purchase (“Agreement”) is made
this
16th
day of
May, 2007, by and between Glimcher University Mall Limited Partnership,
a Delaware limited partnership (“Seller”) and Xxxxxx Capital Management, LLC, a
California limited liability company (“Buyer”)
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated April 25, 2007 (the “Purchase Agreement”) for the sale and purchase of
the
Real
Property commonly known as “University Mall” in Tampa, Florida (the “Property”);
and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are herby acknowledged by the parties hereto, Seller and Buyer,
intending to be legally bound, do hereby agree as follows:
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in the
Purchase
Agreement.
|
| 2. |
Additional
Deposit and Notice of Intention to Proceed.
Section 3.5 of the Purchase
Agreement is hereby deleted in its entirety, and the following
is inserted
in its place:
|
“3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before May 25, 2007, Buyer shall deliver to Seller Buyer’s Notice of intention
to proceed with the closing on the purchase of the Property ("Notice
of Intention to Proceed”) and, within one (1) business day after such delivery,
deposit the Additional Deposit in escrow with the Title Company,
by wire transfer. If Buyer does not give the Notice of Intention
to Proceed on or before May 25, 2007 and pay the Additional Deposit
to the Title Company within one (1) business day after such delivery,
this Agreement shall automatically terminate, the Deposit shall be
paid
to Seller and thereafter the parties shall have no further
liabilities
-1-
under
this Agreement except pursuant to the obligations and indemnity set forth
in
Sections 3.2, 3.4 and 4.9.”
|
3.
|
Interim
Covenants of Seller.
Section 5.5.2 of the Purchase Agreement
is hereby deleted in its entirety, and the following is inserted
in its
place:
|
“5.5.2
From and after the Effective Date, until May 25, 2007, Seller shall not modify
any existing instrument nor enter into a new contract, lease or other
material agreement affecting all or any portion of the Property, or the
use
of it, that is not terminable on thirty (30) days notice, without the prior
written consent of Buyer, which consent will not be unreasonably withheld
or delayed. Buyer’s failure to object to any proposed new lease or
lease
modification within five (5) business days after receipt of Seller’s
request
for consent shall be deemed an approval by Buyer thereof, provided
Seller’s request for consent clearly states in all capital letters in a
prominent place the date by which the Lease will be deemed approved if
Buyer
does not object. From and after May 25, 2007, Seller shall not enter
into or extend, renew, modify or replace any Leases or other agreements
relating to the Property that are not terminable on thirty (30) days notice
without the prior written consent of Buyer, which consent may be
withheld in Buyer’s sole discretion. Any and all tenant improvement costs
and
brokerage commissions payable with respect to any new leases and/or
amendments, modifications or renewals of existing Leases which are
executed after the Effective Date and approved (or deemed approved) by
Buyer
hereunder shall be paid by Buyer. Seller shall provide Buyer with
copies of all such new Leases and all extensions, renewals, modifications
and replacements of existing Leases following execution thereof.”
|
4.
|
Facsimile
Signatures; Counterparts.
This Amendment may be executed by the electronic exchange of copies
hereof
bearing the signatures of each of the
parties. This Amendment may be executed in several counterparts,
each
of which shall be deemed an original, and all such counterparts
together
shall constitute one and the same
instrument.
|
|
5.
|
Governing
Law.
The validity, interpretation, construction, performance and
enforcement of this Amendment and the rights and obligations of
the
parties hereunder shall be governed in all respects by the law
of the
State where the Property is
located.
|
|
6.
|
Except
as amended herein, all terms and conditions of the Purchase Agreement
are and remain unchanged and in full force and effect as therein
written.
|
-2-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 16th day
of
May, 2007.
“SELLER”
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
Its
sole
General Partner
By:
/s/
Xxxxxx
X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Vice President and Chief Investment Officer
“BUYER”
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/
Xxxxx
X. Xxxxx
Xxxxx
X.
Xxxxx
Manager
-3-
SECOND
AMENDMENT TO
This
Second Amendment to Agreement of Sale and Purchase (“Agreement”) is made this
25th day of May, 2007, by and between Glimcher University Mall Limited
Partnership, a Delaware limited partnership (“Seller”) and Xxxxxx Capital
Management, LLC, a California limited liability company (“Buyer”)
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale and Purchase dated May 16, 2007 (the “Purchase Agreement”) for the sale
and purchase of the Real Property commonly known as “University Mall” in Tampa,
Florida (the “Property”); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are herby acknowledged by the parties hereto, Seller and Buyer,
intending to be legally bound, do hereby agree as follows:
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in the
Purchase
Agreement.
|
| 2. |
Additional
Deposit and Notice of Intention to Proceed.
Section 3.5 of the Purchase
Agreement is hereby deleted in its entirety, and the following
is inserted
in its place:
|
“3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before May 30, 2007, Buyer shall deliver to Seller Buyer’s Notice of intention
to proceed with the closing on the purchase of the Property ("Notice
of Intention to Proceed”) and, within one (1) business day after such delivery,
deposit the Additional Deposit in escrow with the Title Company,
by wire transfer. If Buyer does not give the Notice of Intention
to Proceed on or before May 30, 2007 and pay the Additional Deposit
to the Title Company within one (1) business day after such delivery,
this Agreement shall automatically terminate, the Deposit shall be
paid
to Seller and thereafter the parties shall have no further
liabilities
-1-
under
this Agreement except pursuant to the obligations and indemnity set forth
in
Sections 3.2, 3.4 and 4.9.”
| 3. |
Estoppel
Certificates.
Section 3.6 of the Purchase Agreement is hereby deleted in its
entirety,
and the following is inserted in its
place:
|
“Estoppel
Certificates.
3.6.1
On
or before June 1, 2007, Seller shall forward an estoppel certificate
to all Property tenants, substantially in the form of Exhibit
E attached
to this Agreement (or the agreed form of estoppel that is attached to a Property
tenant’s lease) containing information that is consistent with the
information set forth in the applicable tenant lease and the Rent Roll
(as
defined in Section
5.6.6
below),
and thereafter use reasonable efforts to obtain,
prior to the Closing Date, executed tenant estoppel certificates from
all
of the then-current Property tenants. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall Seller be in default hereunder
for its failure to obtain all or any of the tenant estoppel certificates,
provided, however, that it shall be a condition precedent to Buyer’s
obligation to purchase the Property (which may be waived by Buyer)
that at least three (3) business days prior to the Closing Date, Seller
shall
have delivered to Buyer an executed tenant estoppel certificate, not
disclosing
any material variance with the information forth in the applicable
tenant lease and the Rent Roll, and not alleging any material, uncured default
of Seller under such lease (an “Acceptable
Tenant Estoppel”) for
(a)
tenants occupying not less than seventy-five (75%) of the
inline leased square footage of the Property; and (b) one hundred percent
(100%) of the Major Anchor Tenants (defined as any tenant leasing
25,000 square feet or more of floor space on the Property) (the “Required
Tenant Estoppels”). Notwithstanding
anything herein to the contrary, if that Seller has been unable to obtain
(and
deliver to Buyer) the Required Tenant Estoppels at least three (3) business
days
prior to the Closing
Date, and Buyer is not willing to waive the Required Tenant Estoppel condition,
then either party shall have the right to delay the Closing
Date by up to thirty (30) days in order for Seller to continue to attempt
to
obtain the missing Required Tenant Estoppels.
3.6.2
On
or before June 1, 2007, Seller shall forward to each owner of stores
adjoining the Improvements (a “Major
Occupant”) an
estoppel certificate with respect to any reciprocal easement agreement entered
into by
such
Major Occupant in a form reasonably acceptable to Buyer, containing
information that is consistent with the reciprocal easement agreement, and
thereafter use reasonable efforts to obtain, prior to the Closing Date, executed
estoppel certificates (the “REA
Estoppel Certificates”)
from
all
of the then-current Major Occupants. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall Seller
be in default hereunder for its failure to obtain all or
-2-
any
of
the Estoppel Certificates, provided, however, that it shall be a condition
precedent to Buyer’s obligation to purchase the Property (which may be waived by
Buyer) that prior to the Closing Date, Seller deliver to Buyer an executed
REA
Estoppel Certificate from one hundred percent (100%) of the Major Occupants,
not
disclosing any material variance with the
information forth in the reciprocal easement agreement and not alleging
any material, uncured default of Seller under such reciprocal easement agreement
(the “Required
REA Estoppels”). Notwithstanding
anything herein to the contrary, if Seller has been unable to obtain (and
deliver to Buyer) all Required REA Estoppels at least three (3) business
days
prior to the Closing Date, and Buyer is not willing to waive the Required
REA Estoppels condition, then either party shall have the right to
delay
the Closing Date by up to thirty (30) days in order for Seller to continue
to
attempt to obtain the missing Required REA Estoppels.
3.6.3
Seller agrees to reasonably cooperate with Buyer to obtain from tenants
any subordination, non-disturbance and attornment agreements (“SNDAs”)
that
Buyer’s lender requests; provided, however, that in no event shall Seller be in
default hereunder for its failure to obtain all or any SNDA and it shall
not be
a condition precedent to Buyer’s obligation to purchase the Property that Seller
or Buyer obtain any such SNDA.”
| 4. |
Interim
Covenants of Seller.
Section 5.5.2 of the Purchase Agreement
is hereby deleted in its entirety, and the following is inserted
in its
place:
|
“5.5.2
From and after the Effective Date, until May 30, 2007, Seller shall not modify
any existing instrument nor enter into a new contract, lease or other
material agreement affecting all or any portion of the Property, or the
use
of it, that is not terminable on thirty (30) days notice, without the prior
written consent of Buyer, which consent will not be unreasonably withheld
or delayed. Buyer’s failure to object to any proposed new lease or
lease
modification within five (5) business days after receipt of Seller’s
request
for consent shall be deemed an approval by Buyer thereof, provided
Seller’s request for consent clearly states in all capital letters in a
prominent place the date by which the Lease will be deemed approved if
Buyer
does not object. From and after May 30, 2007, Seller shall not enter
into or extend, renew, modify or replace any Leases or other agreements
relating to the Property that are not terminable on thirty (30) days notice
without the prior written consent of Buyer, which consent may be
withheld in Buyer’s sole discretion. Any and all tenant improvement costs
and
brokerage commissions payable with respect to any new leases and/or
amendments, modifications or renewals of existing Leases which are
executed after the Effective Date and approved (or deemed approved) by Buyer
hereunder shall be paid by Buyer. Seller shall provide Buyer
-3-
with
copies of all such new Leases and all extensions, renewals, modifications
and replacements of existing Leases following execution thereof.”
|
5.
|
Facsimile
Signatures; Counterparts.
This Amendment may be executed by the electronic exchange of copies
hereof
bearing the signatures of each of the
parties. This Amendment may be executed in several counterparts,
each
of which shall be deemed an original, and all such counterparts
together
shall constitute one and the same
instrument.
|
|
6.
|
Governing
Law.
The validity, interpretation, construction, performance and
enforcement of this Amendment and the rights and obligations of
the
parties hereunder shall be governed in all respects by the law
of the
State where the Property is
located.
|
|
7.
|
Except
as amended herein, all terms and conditions of the Purchase Agreement
are and remain unchanged and in full force and effect as therein
written.
|
[End
of
Text - Signatures on following page]
-4-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 25th day
of
May, 2007.
“SELLER”
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
Its
sole
General Partner
By:
/s/ Xxx X. Xxxxx
Xxx
X.
Xxxxx
Senior
Vice President
“BUYER”
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/ Xxxxx Xxxxx
Title:
Executive Vice President, Finance
-5-
THIRD
AMENDMENT TO
This
Third Amendment to Agreement of Sale and Purchase (“Agreement”) is made
this
30th day of May, 2007, by and between Glimcher University Mall Limited
Partnership, a Delaware limited partnership (“Seller”) and Xxxxxx Capital
Management, LLC, a California limited liability company (“Buyer”)
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale and Purchase dated May 16, 2007, and as further amended by that certain
Second Amendment to Agreement of Sale and Purchase dated May 25, 2007 (the
“Purchase Agreement”) for the sale and purchase of the Real Property commonly
known as “University Mall” in Tampa, Florida (the “Property”); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are herby acknowledged by the parties hereto, Seller and Buyer,
intending to be legally bound, do hereby agree as follows:
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in the
Purchase
Agreement.
|
| 2. |
Additional
Deposit and Notice of Intention to Proceed.
Section 3.5 of the Purchase
Agreement is hereby deleted in its entirety, and the following
is inserted
in its place:
|
“3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before May 31, 2007, Buyer shall deliver to Seller Buyer’s Notice of intention
to proceed with the closing on the purchase of the Property ("Notice
of Intention to Proceed”) and, within one (1) business day after such delivery,
deposit the Additional Deposit in escrow with the Title Company,
by wire transfer. If Buyer does not give the Notice of Intention
to Proceed on or before May 31, 2007 and pay the Additional Deposit
to the Title Company within one (1) business day after such delivery,
this Agreement shall automatically terminate, the Deposit shall
-1-
be
paid
to Seller and thereafter the parties shall have no further liabilities under
this Agreement except pursuant to the obligations and indemnity set forth
in
Sections 3.2, 3.4 and 4.9.”
| 3. |
Estoppel
Certificates.
Section 3.6 of the Purchase Agreement is hereby deleted in its
entirety,
and the following is inserted in its
place:
|
“Estoppel
Certificates.
3.6.1
On
or before June 2, 2007, Seller shall forward an estoppel certificate
to all Property tenants, substantially in the form of Exhibit
E
attached
to this Agreement (or the agreed form of estoppel that is attached to a Property
tenant’s lease) containing information that is consistent with the
information set forth in the applicable tenant lease and the Rent Roll
(as
defined in Section
5.6.6
below),
and thereafter use reasonable efforts to obtain,
prior to the Closing Date, executed tenant estoppel certificates from
all
of the then-current Property tenants. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall Seller be in default hereunder
for its failure to obtain all or any of the tenant estoppel certificates,
provided, however, that it shall be a condition precedent to Buyer’s
obligation to purchase the Property (which may be waived by Buyer)
that at least three (3) business days prior to the Closing Date, Seller
shall
have delivered to Buyer an executed tenant estoppel certificate, not
disclosing
any material variance with the information forth in the applicable
tenant lease and the Rent Roll, and not alleging any material, uncured default
of Seller under such lease (an “Acceptable
Tenant Estoppel”) for
(a)
tenants occupying not less than seventy-five (75%) of the
inline leased square footage of the Property; and (b) one hundred percent
(100%) of the Major Anchor Tenants (defined as any tenant leasing
25,000 square feet or more of floor space on the Property) (the “Required
Tenant Estoppels”). Notwithstanding
anything herein to the contrary, if that Seller has been unable to obtain
(and
deliver to Buyer) the Required Tenant Estoppels at least three (3) business
days
prior to the Closing
Date, and Buyer is not willing to waive the Required Tenant Estoppel condition,
then either party shall have the right to delay the Closing
Date by up to thirty (30) days in order for Seller to continue to attempt
to
obtain the missing Required Tenant Estoppels.
3.6.2
On
or before June 2, 2007, Seller shall forward to each owner of stores
adjoining the Improvements (a “Major
Occupant”) an
estoppel certificate with respect to any reciprocal easement agreement entered
into by
such
Major Occupant in a form reasonably acceptable to Buyer, containing
information that is consistent with the reciprocal easement agreement, and
thereafter use reasonable efforts to obtain, prior to the Closing Date, executed
estoppel certificates (the “REA
Estoppel Certificates”)
from
all
of the then-current Major Occupants. Notwithstanding
anything to the contrary contained in this Agreement, in
-2-
no
event
shall Seller be in default hereunder for its failure to obtain all or
any
of
the Estoppel Certificates, provided, however, that it shall be a condition
precedent to Buyer’s obligation to purchase the Property (which may be waived by
Buyer) that prior to the Closing Date, Seller deliver to Buyer an executed
REA
Estoppel Certificate from one hundred percent (100%) of the Major Occupants,
not
disclosing any material variance with the
information forth in the reciprocal easement agreement and not alleging
any material, uncured default of Seller under such reciprocal easement agreement
(the “Required
REA Estoppels”). Notwithstanding
anything herein to the contrary, if Seller has been unable to obtain (and
deliver to Buyer) all Required REA Estoppels at least three (3) business
days
prior to the Closing Date, and Buyer is not willing to waive the Required
REA Estoppels condition, then either party shall have the right to
delay
the Closing Date by up to thirty (30) days in order for Seller to continue
to
attempt to obtain the missing Required REA Estoppels.
3.6.3
Seller agrees to reasonably cooperate with Buyer to obtain from tenants
any subordination, non-disturbance and attornment agreements (“SNDAs”)
that
Buyer’s lender requests; provided, however, that in no event shall Seller be in
default hereunder for its failure to obtain all or any SNDA and it shall
not be
a condition precedent to Buyer’s obligation to purchase the Property that Seller
or Buyer obtain any such SNDA.”
| 4. |
Interim
Covenants of Seller.
Section 5.5.2 of the Purchase Agreement
is hereby deleted in its entirety, and the following is inserted
in its
place:
|
“5.5.2
From and after the Effective Date, until May 31, 2007, Seller shall not modify
any existing instrument nor enter into a new contract, lease or other
material agreement affecting all or any portion of the Property, or the
use
of it, that is not terminable on thirty (30) days notice, without the prior
written consent of Buyer, which consent will not be unreasonably withheld
or delayed. Buyer’s failure to object to any proposed new lease or
lease
modification within five (5) business days after receipt of Seller’s
request
for consent shall be deemed an approval by Buyer thereof, provided
Seller’s request for consent clearly states in all capital letters in a
prominent place the date by which the Lease will be deemed approved if
Buyer
does not object. From and after May 31, 2007, Seller shall not enter
into or extend, renew, modify or replace any Leases or other agreements
relating to the Property that are not terminable on thirty (30) days notice
without the prior written consent of Buyer, which consent may be
withheld in Buyer’s sole discretion. Any and all tenant improvement costs
and
brokerage commissions payable with respect to any new leases and/or
amendments, modifications or renewals of existing Leases which are
executed after the Effective Date and approved (or deemed approved)
-3-
by
Buyer
hereunder shall be paid by Buyer. Seller shall provide Buyer with
copies of all such new Leases and all extensions, renewals, modifications
and replacements of existing Leases following execution thereof.”
|
5.
|
Facsimile
Signatures; Counterparts.
This Amendment may be executed by the electronic exchange of copies
hereof
bearing the signatures of each of the
parties. This Amendment may be executed in several counterparts,
each
of which shall be deemed an original, and all such counterparts
together
shall constitute one and the same
instrument.
|
|
6.
|
Governing
Law.
The validity, interpretation, construction, performance and
enforcement of this Amendment and the rights and obligations of
the
parties hereunder shall be governed in all respects by the law
of the
State where the Property is
located.
|
|
7.
|
Except
as amended herein, all terms and conditions of the Purchase Agreement
are and remain unchanged and in full force and effect as therein
written.
|
[End
of
Text - Signatures on following page]
-4-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 30th day
of
May, 2007.
“SELLER”
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
Its
sole
General Partner
By:
/s/ Xxx X. Xxxxx
Xxx
X.
Xxxxx
Senior
Vice President
“BUYER”
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/ Xxxxx Xxxxx
Title:
Executive Vice President, Finance
-5-
FOURTH
AMENDMENT TO
AGREEMENT
OF SALE AND PURCHASE
This
Fourth Amendment to Agreement of Sale and Purchase ("Agreement") is made
this
31st day of May, 2007, by and between Glimcher University Mall Limited
Partnership,
a Delaware limited partnership ("Seller") and Xxxxxx Capital Management,
LLC,
a
California limited liability company ("Buyer")
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated
April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale and Purchase dated May 16, 2007, that certain Second Amendment to
Agreement of Sale and Purchase dated May 25, 2007, and that certain Third
Amendment to
Agreement of Sale and Purchase dated May 30, 2007 (the "Purchase Agreement")
for
the
sale
and purchase of the Real Property commonly known as "University Mall" in
Tampa,
Florida (the "Property"); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are herby acknowledged by the parties hereto, Seller and Buyer, intending
to be legally bound, do hereby agree as follows;
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in
the Purchase Agreement.
|
| 2. |
Additional
Deposit and Notice of Intention to Proceed.
Section 3.5 of the Purchase
Agreement is hereby deleted in its entirety, and the following
is
inserted
in its place:
|
"3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before June 1, 2007, Buyer shall deliver to Seller Buyer's Notice of intention
to proceed with the closing on the purchase of the Property ("Notice
of Intention to Proceed") and, within one (1) business day after such
delivery, deposit the Additional Deposit in escrow with the Title Company,
by wire transfer. If Buyer does not give the Notice of Intention
to Proceed on or before June 1, 2007 and pay the Additional Deposit to the
Title
Company within one (1) business day after such
-1-
delivery,
this Agreement shall automatically terminate, the Deposit shall be paid to
Seller and thereafter the parties shall have no further liabilities under
this Agreement except pursuant to the obligations and indemnity set forth
in
Sections 3.2, 3.4 and 4.9."
| 3. |
Estoppel
Certificates.
Section 3.6 of the Purchase Agreement is hereby deleted in its
entirety,
and the following is inserted in its
place:
|
"Estoppel
Certificates.
3.6.1
On
or before June 5, 2007, Seller shall forward an estoppel certificate
to all Property tenants, substantially in the form of Exhibit
E
attached
to this Agreement (or the agreed form of estoppel that is attached to
a
Property tenant's lease) containing information that is consistent with
the
information set forth in the applicable tenant lease and the Rent Roll
(as
defined in Section
5.6.6
below),
and thereafter use reasonable efforts to obtain,
prior to the Closing Date, executed tenant estoppel certificates from
all
of the then-current Property tenants. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall Seller be in
default
hereunder for its failure to obtain all or any of the tenant estoppel
certificates,
provided, however, that it shall be a condition precedent to Buyer's obligation
to purchase the Property (which may be waived by Buyer)
that at least three (3) business days prior to the Closing Date, Seller
shall
have delivered to Buyer an executed tenant estoppel certificate, not
disclosing
any material variance with the information forth in the applicable
tenant lease and the Rent Roll, and not alleging any material, uncured
default of Seller under such lease (an "Acceptable
Tenant Estoppel")
for
(a)
tenants occupying not less than seventy-five (75%) of the
inline leased square footage of the Property; and (b) one hundred percent
(100%)
of the Major Anchor Tenants (defined as any tenant leasing 25,000 square
feet or
more of floor space on the Property) (the "Required
Tenant Estoppels"). Notwithstanding
anything herein to the contrary,
if that Seller has been unable to obtain (and deliver to Buyer) the Required
Tenant Estoppels at least three (3) business days prior to the Closing Date,
and
Buyer is not willing to waive the Required Tenant Estoppel condition, then
either party shall have the right to delay the Closing Date by up to thirty
(30)
days in order for Seller to continue to attempt to obtain the missing Required
Tenant Estoppels.
3.6.2
On
or before June 5, 2007, Seller shall forward to each owner of stores adjoining
the Improvements (a "Major
Occupant") an
estoppel certificate
with respect to any reciprocal easement agreement entered into by
such
Major Occupant in a form reasonably acceptable to Buyer, containing information
that is consistent with the reciprocal easement agreement, and thereafter
use
reasonable efforts to obtain, prior to the Closing Date, executed estoppel
certificates (the "REA
Estoppel Certificates") from
all
of the then-current Major Occupants.
-2-
Notwithstanding
anything to the contrary contained in this Agreement, in no event shall Seller
he in default hereunder for its failure to obtain all or any
of
the Estoppel Certificates, provided, however, that it shall be a condition
precedent to Buyer's obligation to purchase the Property (which may
be
waived by Buyer) that prior to the Closing Date, Seller deliver to Buyer
an
executed REA Estoppel Certificate from one hundred percent (100%)
of
the Major Occupants, not disclosing any material variance with the
information forth in the reciprocal easement agreement and not alleging any
material, uncured default of Seller under such reciprocal easement
agreement (the "Required
REA Estoppels"). Notwithstanding
anything
herein to the contrary, if Seller has been unable to obtain (and deliver
to Buyer) all Required REA Estoppels at least three (3) business days
prior to the Closing Date, and Buyer is not willing to waive the Required
REA Estoppels condition, then either party shall have the right to
delay
the Closing Date by up to thirty (30) days in order for Seller to continue
to
attempt to obtain the missing Required REA Estoppels.
3.6.3
Seller agrees to reasonably cooperate with Buyer to obtain from tenants any
subordination, non-disturbance and attornment agreements ("SNDAs")
that
Buyer's lender requests; provided, however, that in no event
shall Seller be in default hereunder for its failure to obtain all or any
SNDA
and
it shall not be a condition precedent to Buyer's obligation to purchase the
Property that Seller or Buyer obtain any such SNDA."
|
4.
|
Facsimile
Signatures; Counterparts.
This Amendment may be executed by the
electronic exchange of copies hereof bearing the signatures of
each of
the
parties. This Amendment may be executed in several counterparts,
each of
which shall be deemed an original, and all such counterparts together
shall constitute one and the same
instrument.
|
|
5.
|
Governing
Law.
The validity, interpretation, construction, performance and
enforcement of this Amendment and the rights and obligations of
the
parties hereunder shall be governed in all respects by the law
of the
State where
the Property is located.
|
|
6.
|
Except
as amended herein, all terms and conditions of the Purchase Agreement
are
and remain unchanged and in full force and effect as
therein
written.
|
[End
of
Text - Signatures on following page]
-3-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 31st day of
May,
2007.
"SELLER"
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
Its
sole
General Partner
By:
/s/ Xxx X. Xxxxx
Xxx
X.
Xxxxx
Senior
Vice President
"BUYER"
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/ Xxxxx Xxxxx
Xxxxx
Xxxxx
Executive
Vice President - Finance
-4-
FIFTH
AMENDMENT TO
AGREEMENT
OF SALE AND PURCHASE
This
Fifth Amendment to Agreement of Sale and Purchase ("Amendment") is made this
1st
day of June, 2007, by and between Glimcher University Mall Limited Partnership,
a Delaware limited partnership ("Seller") and Xxxxxx Capital Management,
LLC,
a
California limited liability company ("Buyer")
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale and Purchase dated May 16, 2007, that certain Second Amendment to
Agreement
of Sale and Purchase dated May 25, 2007, that certain Third Amendment to
Agreement
of Sale and Purchase dated May 30, 2007, and that certain Fourth Amendment
to Agreement of Sale and Purchase dated May 31, 2007 (the "Purchase Agreement")
for the sale and purchase of the Real Property commonly known as "University
Mall" in Tampa, Florida (the "Property"); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are herby acknowledged by the parties hereto, Seller and Buyer,
intending
to be legally bound, do hereby agree as follows:
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in
the Purchase Agreement.
|
| 2. |
Additional
Deposit and Notice of Intention to Proceed.
Section 3.5 of the Purchase
Agreement is hereby deleted in its entirety, and the following
is
inserted
in its place:
|
"3.5
Additional
Deposit and Notice of Intention to Proceed.
On
or
before
June 4, 2007, Buyer shall deliver to Seller Buyer's Notice of intention to
proceed with the closing on the purchase of the Property ("Notice
of Intention to Proceed") and, within one (1) business day after such
delivery, deposit the Additional Deposit in escrow with the Title Company,
by wire transfer. If Buyer does not give the Notice of Intention
to Proceed on or before June 4, 2007 and pay the Additional
-1-
Deposit
to the Title Company within one (1) business day after such delivery,
this Agreement shall automatically terminate, the Deposit shall be paid to
Seller and thereafter the parties shall have no further liabilities under
this Agreement except pursuant to the obligations and indemnity set forth
in
Sections 3.2, 3.4 and 4.9."
|
3.
|
Estoppel
Certificates.
Section 3.6 of the Purchase Agreement is hereby deleted in its
entirety,
and the following is inserted in its
place:
|
"Estoppel
Certificates.
3.6.1
On
or before June 8, 2007, Seller shall forward an estoppel certificate
to all Property tenants, substantially in the form of Exhibit
E
attached
to this Agreement (or the agreed form of estoppel that is attached to
a
Property tenant's lease) containing information that is consistent with
the
information set forth in the applicable tenant lease and the Rent Roll
(as
defined in Section
5.6.6
below),
and thereafter use reasonable efforts to obtain,
prior to the Closing Date, executed tenant estoppel certificates from
all
of the then-current Property tenants. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall Seller be in
default
hereunder for its failure to obtain all or any of the tenant estoppel
certificates,
provided, however, that it shall be a condition precedent to Buyer's
obligation to purchase the Property (which may be waived by Buyer)
that at least three (3) business days prior to the Closing Date, Seller
shall
have delivered to Buyer an executed tenant estoppel certificate, not
disclosing
any material variance with the information forth in the applicable
tenant lease and the Rent Roll, and not alleging any material, uncured
default of Seller under such lease (an "Acceptable
Tenant Estoppel")
for
(a)
tenants occupying not less than seventy-five (75%) of the
inline leased square footage of the Property; and (b) one hundred percent
(100%)
of the Major Anchor Tenants (defined as any tenant leasing 25,000 square
feet or
more of floor space on the Property) (the "Required
Tenant Estoppels"). Notwithstanding
anything herein to the contrary,
if that Seller has been unable to obtain (and deliver to Buyer) the Required
Tenant Estoppels at least three (3) business days prior to the Closing Date,
and
Buyer is not willing to waive the Required Tenant Estoppel condition, then
either party shall have the right to delay the Closing
Date by up to thirty (30) days in order for Seller to continue to attempt
to obtain the missing Required Tenant Estoppels.
3.6.2
On
or before June 8, 2007, Seller shall forward to each owner of stores adjoining
the Improvements (a "Major
Occupant") an
estoppel certificate
with respect to any reciprocal easement agreement entered into by
such
Major Occupant in a form reasonably acceptable to Buyer, containing information
that is consistent with the reciprocal easement agreement, and thereafter
use
reasonable efforts to obtain, prior to the Closing Date, executed estoppel
certificates (the "REA
Estoppel
-2-
Certificates")
from
all
of the then-current Major Occupants. Notwithstanding
anything to the contrary contained in this Agreement, in no
event
shall Seller be in default hereunder for its failure to obtain all or
any
of
the Estoppel Certificates, provided, however, that it shall be a condition
precedent to Buyer's obligation to purchase the Property (which may
be
waived by Buyer) that prior to the Closing Date, Seller deliver to Buyer
an
executed REA Estoppel Certificate from one hundred percent (100%)
of
the Major Occupants, not disclosing any material variance with the
information forth in the reciprocal easement agreement and not alleging any
material, uncured default of Seller under such reciprocal easement
agreement (the “Required
REA Estoppels"). Notwithstanding
anything herein to the contrary, if Seller has been unable to obtain (and
deliver to Buyer) all Required REA Estoppels at least three (3) business
days
prior to the Closing Date, and Buyer is not willing to waive the Required
REA Estoppels condition, then either party shall have the right to
delay
the Closing Date by up to thirty (30) days in order for Seller to continue
to attempt to obtain the missing Required REA Estoppels.
3.6.3
Seller agrees to reasonably cooperate with Buyer to obtain from tenants
any subordination, non-disturbance and attomment agreements ("SNDAs") that
Buyer's lender requests; provided, however, that in no event
shall Seller be in default hereunder for its failure to obtain all or any
SNDA
and
it shall not be a condition precedent to Buyer's obligation to purchase
the Property that Seller or Buyer obtain any such SNDA."
|
4.
|
Facsimile
Signatures; Counterparts.
This Amendment may be executed by the
electronic exchange of copies hereof bearing the signatures of
each of
the
parties. This Amendment may be executed in several counterparts,
each of
which shall be deemed an original, and all such counterparts together
shall constitute one and the same
instrument.
|
|
5.
|
Governing
Law.
The validity, interpretation, construction, performance and
enforcement of this Amendment and the rights and obligations of
the
parties
hereunder shall be governed in all respects by the law of the State
where
the Property is located.
|
|
6.
|
Effect
of Amendment.
Except as amended herein, all terms and conditions
of the Purchase Agreement are and remain unchanged and in full
force and effect as therein
written.
|
[End
of
Text - Signatures on following page]
-3-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 31st day
of
May, 2007.
"SELLER"
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware corporation,
Its
sole
General Partner
By:
/s/ Xxx X. Xxxxx
Xxx
X.
Xxxxx
Senior
Vice President
"BUYER"
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:
/s/ Xxxxx Xxxxx
Xxxxx
Xxxxx
Executive
Vice President - Finance
-4-
SIXTH
AMENDMENT TO
AGREEMENT
OF SALE AND PURCHASE
This
Sixth Amendment to Agreement of Sale and Purchase ("Amendment") is made this
4th
day
of June, 2007, by and between Glimcher University Mall Limited Partnership,
a
•
Delaware limited partnership ("Seller") and Xxxxxx Capital Management, LLC,
a
California limited
liability company ("Buyer")
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated
April 25, 2007, as
amended
by that certain First Amendment to Agreement of Sale and Purchase
dated May 16, 2007, that certain Second Amendment to Agreement of Sale and
Purchase
dated May 25, 2007, that certain Third Amendment to Agreement of Sale and
Purchase dated
May
30, 2007, and that certain Fourth Amendment to Agreement of Sale and Purchase
dated
May
31, 2007, and that certain Fifth Amendment to Agreement of Purchase and Sale
dated June
1,
2007
(the
'Purchase Agreement") for the sale and purchase of the Real Property
commonly
known as "University Mall" in Tampa, Florida (the "Property"); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which
are
hereby acknowledged by the parties hereto, Seller and Buyer, intending to
be
legally bound, do hereby agree as follows:
1.
Preamble
and Recitals; Definitions.
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in
the
Purchase Agreement.
|
2.
Additional
Deposit and Notice of Intention to Proceed.
Upon
execution and delivery
by Seller and Buyer of this Amendment, Buyer will be deemed to have delivered
its Notice
of
Intention to Proceed pursuant to Section 3.5 of the Purchase Agreement, subject
to the terms
and
conditions of the Purchase Agreement. Notwithstanding anything in the Purchase
Agreement
to the contrary, on or before June 5, 2007, Buyer shall deposit the Additional
Deposit in
escrow
with the Title Company, by wire transfer. If Buyer does not pay the Additional
Deposit
to the Title Company on or before June 5, 2007 this Agreement shall
automatically terminate, the Deposit shall be paid to Seller and thereafter
the
parties shall have no further liabilities under this Agreement except pursuant
to the obligations and indemnity set forth in Sections 3.2, 3.4 and
4.9.
3.
Firestone
Site.
On or
before June 6, 2007, Seller shall deliver to BFS Retail & Commercial
Operations, LLC ("Firestone") a notice in substantially the form of Exhibit
A
attached
to this Amendment.
-1-
4.
Facsimile
Signatures; Counterparts.
This
Amendment may be executed by the electronic
exchange of copies hereof bearing the signatures of each of the parties.
This
Amendment
may be executed in several counterparts, each of which shall be deemed an
original, and all such counterparts together shall constitute one and the
same
instrument.
5. Governing
Law.
The
validity, interpretation, construction, performance and enforcement of this
Amendment and the rights and obligations of the parties hereunder shall be
governed in all respects by the law of the State where the Property is
located.
6. Effect
of Amendment.
Except
as amended herein, all terms and conditions of the Purchase
Agreement are and remain unchanged and in full force and effect as therein
written,
[End
of Text - Signatures on Following Page]
-2-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 4th
day
of
June,
2007.
"SELLER"
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.,
a
Delaware
corporation,
Its
sole
General Partner
|
By:
|
/s/
Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
Executive
Vice President
|
"BUYER"
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
| By: |
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
Executive
Vice President - Finance
|
-3-
SEVENTH
AMENDMENT TO
AGREEMENT
OF SALE AND PURCHASE
This
Seventh. Amendment to Agreement of Sale and Purchase (“Amendment”) is made this
13th day of June, 2007, by and between Glimcher University Mall Limited
Partnership, a Delaware limited partnership ("Seller") and Xxxxxx Capital
Management, LLC, a California limited liability company ("Buyer").
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and Purchase
dated
April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale
and Purchase dated May 16, 2007, that certain Second Amendment to Agreement
of
Sale and Purchase dated May 25, 2007, that certain Third Amendment to Agreement
of Sale and Purchase dated May 30, 2007, that certain Fourth Amendment
to
Agreement of Sale and Purchase dated May 31, 2007, that certain Fifth Amendment
to Agreement of Purchase and Sale dated June 1, 2007 and that certain Sixth
Amendment to Agreement of Purchase and Sale dated June 4, 2007 (the "Purchase
Agreement") for the sale and purchase of the Real Property commonly known
as
"University Mall" located in Tampa, Florida (the "Property"); and
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the Purchase
Agreement, as set forth herein:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by the parties hereto, Seller and Buyer,
intending
to be legally bound, do hereby agree as follows:
1. Preamble
and Recitals Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as if fully
rewritten
herein.
|
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth in
the Purchase
Agreement.
|
2.
Correction of Closing Date.
|
|
a.
|
Section
1.4 of the Purchase Agreement is hereby deleted and replaced
in its
entirety with the following:
|
'"Closing
Date" means not later than June 28, 2007, subject to extension
as provided in Section 4.2 (or any other date which is approved in
writing by both Buyer and Seller.'
|
|
b.
|
Section
4.2 of the Purchase Agreement is hereby deleted and replaced
in its
entirety with the following:
|
-1-
"Closing
Date. The Closing shall occur through Escrow on the Closing Date. At Buyer's
election, Buyer may postpone the Closing Date from June 28, 2007 to July
12,
2007 by causing the following to occur on or before June 27, 2007: (i)
delivery
to Seller of Buyer's Notice of its election to postpone Closing; and (ii)
payment into escrow with the Title Company, by wire transfer, of the sum
of One
Million Dollars ($1,000,000.00) (the "Second Additional
Deposit"). Upon receipt by the Title Company, the
Second Additional Deposit shall be deemed included in the Deposit for all
purposes under this Agreement."
3.
Facsimile Signatures: Counterparts. This Amendment may be executed
by the electronic exchange of copies hereof bearing the signatures of each
of
the parties. This Amendment may be executed in several counterparts, each
of
which shall be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
4. Governing
Law. The validity, interpretation, construction, performance and enforcement
of this Amendment and the rights and obligations of the parties hereunder
shall
be governed in all respects by the law of the State where the Property
is
located.
5. Effect
of Amendment. Except as amended herein, ail terms and conditions of the
Purchase Agreement are and remain unchanged and in full force and effect
as
therein written.
[End
of Text - Signatures on Following Page]
-2-
IN
WITNESS WHEREOF, the parties have executed this Amendment this 13th day
of June,
2007.
"SELLER"
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
|
|
By:
|
GLIMCHER
TAMPA, INC.,
a
Delaware corporation,
|
Its
sole
General Partner
|
By:
|
Xxx
X. Xxxxx
Xxx
X. Xxxxx
Senior
Vice President
|
"BUYER"
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
|
By:
|
Xxxxx
X. Xxxxx
Xxxxx
X. Xxxxx
Manager
|
-3-
EXHIBIT
B
LEGAL
DESCRIPTION
PARCEL
I (TRACT 1)
A
parcel
consisting of part of the Southeast Quarter of Section 7 and part of the
Southwest
Quarter of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxxxx
Xxxxxx,
Xxxxxxx, described as follows:
From
the
Southeast corner of said Section 7, run North 00° 08' 00" East along the East
boundary of said Southeast Quarter of Section 7 for a distance of 71.28 feet
to
a point, which point is on the North right-of-way line of Xxxxx Xxxx 000;
thence
run North 89° 46' 02"
West
along said North right-of-way line for a distance of 250.40 feet; thence
run
South
00°
13' 58" West along said right-of-way line for a distance of 10.00 feet; thence
run North 89° 46' 02" West along said right-of-way line for a distance of 167.33
feet to the
principal point and place of beginning of the following description; thence
continuing along
said North line North 89° 46' 02" West for a distance of 15.56 feet to a point;
thence
North 00° 10' 49" East a distance of 186.22 feet to a point; thence North 89°
39' 23"
West
for a distance of 248.16 feet to a point; thence South 00° 22' 13" West for a
distance of 186.70 feet to a point on the North right-of-way line of Xxxxxx
Avenue (State Route 582); thence run with said right-of-way North 89° 46' 02"
West for a distance of 622.12 feet to a point which is 30.00 feet East of
the
West boundary of the Southeast Quarter of the Southeast Quarter of Section
7;
thence run North 00° 09' 30" East parallel to
said
West boundary of the Southeast Quarter of the Southeast Quarter of Section
7 for
a
distance of 403.94 feet; thence North 89° 46' 02" West for a distance of 30.00
feet to a point
on
the West boundary of the Southeast Quarter of the Southeast Quarter of Section
7;
thence
run North 00° 09' 30" East along said west boundary of the Southeast Quarter
of
the
Southeast Quarter of Section 7 for a distance of 844.91 feet to a point which
is
25.00
feet South of the North boundary of said Southeast Quarter of the Southeast
Quarter
of Section 7; thence run South 89° 34' 59" East parallel to said North boundary
of the Southeast Quarter of the Southeast Quarter of Section 7 for a distance
of
399.99 feet; thence run Northeasterly along the arc of a curve to the left
(radius -310.00 feet) for a distance
of 162.32 feet (chord - 160.47 feet, chord bearing North 75° 25' 01" East);
thence
run North 60° 25' 01" East for a distance of 363.00 feet; thence 97.33 feet
along an
arc to
the right having a radius of 410.00 feet and a chord of 97.11 feet bearing
North
67° 13' 05" East; thence run North 00° l3' 58" East for a distance of 88.72 feet
to a point; thence run South 89° 34' 59" East for a distance of 3.33 feet to a
point; thence run North 00°
07'
35" East for a distance of 482.33 feet to a point; thence run South 89° 46' 02"
East for
a
distance of 1035.23 feet to a point; thence run South 00° 03' 54" East for a
distance of
114.46
feet; thence run South 89° 56' 57" West for a distance of 140.01 feet; thence
run
South
42° 55' 38" West for a distance of 20.01 feet; thence run North 89° 45' 51"
West
for
a distance of 494.43 feet; thence run South 00° 07' 46" West for a distance of
26.25
feet; thence run South 43° 15' 06" East for a distance of 46.72 feet; thence run
South
89°
45' 51" East for a distance of 174.51 feet; thence run South 00° 03' 55" East
for a
distance of 276.97 feet; thence run North 89° 46' 02" West for a distance of
82.84 feet to
a
point; thence run North 00° 13' 58" East for a distance of 9.00 feet to a point;
thence run North 89° 46' 02" West for a distance of 94.50 feet to a point;
thence run South 00°
13'
58"
West for a distance of 9.00 feet to a point; thence run North 89° 46' 02" West
for a
distance of 407.49 feet to a point; thence run South 00° 13' 58" West for a
distance of 194.48 feet to a point; thence run North 89° 51' 48" West for a
distance of 83.49 feet; thence run South 00° 08' 12" West for a distance of
202.71 feet; thence run South 89° 51' 48" East for a distance of 18.00 feet;
thence run South 00° 08' 12" West for a distance of 36.00
feet; thence run South 89° 51'48" East for a distance of 42.25 feet; thence run
South
00°
08' 12" West for a distance of 4.72 feet; thence run South 89° 46' 02" East for
a distance
of 281.88 feet to a point; thence run North 00° 13' 58" East for a distance of
89.65
feet to a point; thence run South 89° 46' 02" East for a distance of 21.00 feet
to a point;
thence run South 00° 13' 58" West for a distance of 34.64 feet to a point;
thence run
South
89° 46' 02" East for a distance of 278.97 feet to a point; thence run South 00°
13'
58"
West for a distance of 179.74 feet to a point; thence run South 89° 46' 02" East
for
a
distance of 50.00 feet to a point; thence run North 00° 13' 58" East for a
distance of 17.50 feet to a point; thence run South 89° 46' 02" East for a
distance of 77.66 feet to a point;
thence run South 48° 57' 07.7" East for a distance of 72.67 feet to a point;
thence run South 89° 46' 02" East for a distance of 267.00 feet to a point;
thence run North 21° 26'
35"
East for a distance of 134.08 feet to a point; thence North 00° 13' 58" East for
a distance
of 423.83 feet to a point; thence run South 45° 01' 08" East for a distance of
108.85
feet to a point; thence run 288.60 feet along an arc to the right having
a
radius of 1080.00
feet and a chord of 287.74 feet bearing South 67° 40' 27.6" East; thence run
South
60°
01' 08" East for a distance of 266.78 feet to a point which is 25.00 feet
South
of
the
North boundary of said Southwest Quarter of the Southwest Quarter of Section
8;
thence
run North 89° 58' 52" East, parallel to said North Boundary of the Southwest
Quarter
of the Southwest Quarter of Section 8, for a distance of 60.00 feet to a
point
on the
East
boundary of said Southwest Quarter of the Southwest Quarter of Section 8;
thence
run South 00° 08' 05" West along said East boundary of the Southwest Quarter of
the
Southwest Quarter of Section 8, for a distance of 1249.92 feet to a point
on
said North right-of-way
line; thence run North 89° 47' 00" West along said North right-of-way line
for
a
distance of 60.00 feet; thence run North 00° 08' 05" East, parallel to said East
boundary
of the Southwest Quarter of the Southwest Quarter of Section 8, for a distance
of
1197.21 feet; thence run North 60° 01' 08" West for distance of 261.14 feet to a
point; thence
run North 65° 01' 08" West for a distance of 203.07 feet to a point; thence run
North
75°
01' 08" West for a distance of 142.66 feet to a point; thence run South 00° 13'
58" West for a distance of 252.59 feet to a point; thence run North 89° 46' 02"
West for a distance
of 14.66 feet to a point; thence run South 00° 13' 58" West for a distance of
975.78
feet to a point; thence run South 89° 46' 00" East for a distance of 43.42 feet
to a point; thence run South 24° 02' 00" East for a distance of 57.75 feet to a
point; thence run South 00° 13' 00" West for a distance of 167.25 feet to a
point on the North right-of-way line of Xxxxxx Avenue (State Route 582);
thence
run North 89° 47' 00" West along said North line for a distance of 225.70 feet
to a point; thence run North 00° 08' 00" East for a distance
of 184.62 feet to a point; thence run North 89° 39' 54" West for a distance of
182.29
feet to a point; thence run South 00° 08' 00" West for a distance of 10.00 feet;
thence
run North 89° 47' 00" West for a distance of 335.00 feet to a point; thence
South 00'
08'
00" West for a distance of 175.00 feet to a point on the aforementioned North
right-of-way line; thence run North 89° 47' 00" West along said North line for a
distance of 30.00 feet to a point: thence run North 00° 08' 00" East for a
distance of 199.07 feet to
a
point;
thence run South 89° 47' 00" East for a distance of 350.07 feet to a point;
thence run North 00° 13' 00" East for a distance of 350.00 feet to a point;
thence run North 89° 46'
02"
West for a distance of 241.99 feet to a point; thence run North 00° 13' 58" East
for
a
distance of 38.00 feet to a point; thence run North 89° 46' 02" West for a
distance of 15.00 feet to a point; thence run North 00° 13' 58" East for a
distance of 95.16 feet to a point;
thence run North 89° 46' 02" West for a distance of 75.00 feet to a point;
thence run North 00° 13' 58" East for a distance of 50.00 feet to a point;
thence run North 89° 46'
02"
West for a distance of 127.00 feet to a point; thence run South 00° 13' 58" West
for
a
distance of 50.00 feet to a point; thence run North 89° 46' 02" West for a
distance of 100.00 feet to a point; thence run South 00° 13' 58" West for a
distance of 70.00 feet to a point; thence run North 89° 46' 02" West for a
distance of 100.00 feet to a point: thence run
South
00° 13' 58" West for a distance of 76.16 feet to a point; thence run North 89°
46' 02" West for a distance of 108.38 feet to a point; thence run South 00° 13'
58" West for
a
distance of 536.17 feet to the POINT OF BEGINNING.
Containing
54.230 acres, more or less. (All acreage referred to herein is for information
purposes only)
Bearings
are based on the East Line of the Southeast Quarter of Section 7, Township
21
South, Range 19 East, as being North 00° 08' 00" East, per Official Record Book
2795, Page 119, of the Public Records of Hillsborough County,
Florida.
PARCEL
II (TRACT 3)
A
parcel
consisting of part of the Southwest Quarter of Section 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, described as follows:
Commence
at the Southwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 19 East,
thence
run North 00° 08' 00" East for a distance of 61.28 feet to a point in the
right-of-way
of
said Xxxxxx Avenue; thence, with said right-of-way, run South 89° 47' 00" East
for a distance of 365.00 feet to the POINT OF BEGINNING; thence run North
00°
08' 00"
East
for a distance of 175.00 feet to a point; thence run North 00° 08' 00" East for
a distance
of 10.00 feet to a point; thence run South 89° 39' 54" East for a distance of
182.29
feet to a point; thence run South 00° 08' 00" West for a distance of 184.62 feet
to a
point
in the said right-of-way of Xxxxxx Avenue; thence, with said right-of-way,
run
North 89° 47' 00" West for a distance of 182.30 feet to the POINT OF
BEGINNING.
Containing
0.773 acres, more or less. (All acreage referenced herein is for information
purposes only)
Bearings
are based on the East Line of the Southeast Quarter of Section 7, Township
28
South, Range 19 East, as being North 00° 08' 00" East, per Official Record Book
2795, Page 119, of the Public Records of Hillsborough County,
Florida.
PARCEL
III (TRACT 4) - INTENTIONALLY DELETED
PARCEL
IV (TRACT 5) - INTENTIONALLY DELETED
PARCEL
V
An
Access
Easement for the benefit of Parcel I, for purposes of ingress and egress
as set
forth in instrument recorded July 23, 1982 in Official Record Book 3975,
Page
1882, of
the
Public Records of Hillsborough County, Florida, described as
follows:
A
parcel
consisting of part of the Southeast 1/4 of Section 7, and part of the Southwest
1/4
of
Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx,
described
as follows: From the Northeast corner of the Northwest 1/4 of the Southwest
1/4
of
said Section 8, thence North 89° 56' 41" West along the North line of the
Northwest
1/4 of the Southwest 1/4 of said Section 8 a distance of 1331.73 feet to
the
Northeast corner of the Northeast 1/4 of the Southeast 1/4 of Section 7,
said
point also being the principal point and place of beginning of the following
description:
Thence
South 89° 56' 41" East along the North line of the Northwest 1/4 of the
Southwest 1/4
of
said Section 8, a distance of 30.00 feet to a point; thence South 0° 07' 35"
West a distance of 523.92 feet to a point; thence North 89° 46' 02" West a
distance of 60.00 feet to a point; thence North 0° 07' 35" East a distance of
523.74 feet to a point on the North line of the Northeast 1/4 of the Southeast
1/4 of Section 7; thence South 89° 41' 16" East along said North line a distance
of 30.00 feet to the Point of Beginning.
Containing
0.72 acres of land, more or less, but subject to all legal highways and
easements
of record. (All reference to acreage is for informational purposes only)
Easements
for use of common areas as set forth in Article 24 of the Amended and
Restated
Operating Agreement by and among University Square Partners, Allied Stores
General Real Estate Company, Sears, Xxxxxxx & Co., Xxxxxxx Department
Stores, Inc., Construction Developers, Incorporated, and Xxxxxxxxxx Xxxx
Land
Corporation dated September 5, 1995 and recorded December 2, 1996 in Official
Record Book 8371, Page 635, of the Public Records of Hillsborough County,
Florida.
PARCEL
VII
Non-Exclusive
Easement for ingress and egress created by that certain Memorandum of Agreement
between University Square Associates and G. A. Investments, Inc., dated February
4, 1980 and recorded in Official Record Book 3627, Page 399, as corrected
by
Corrective
Agreement, dated March 17, 1981 and recorded in Official Record Book
3807,
Page 713, both of the Public Records of Hillsborough County, Florida, over
and
across the following described parcel of land:
A
tract
of land in the Southwest 1/4 of Section 8, Township 28 South, Range 19 East,
Hillsborough County, Florida, being described as follows:
For
a
point of reference commence at the Southwest corner of Section 0, Xxxxxxxx
00
Xxxxx, Xxxxx 19 East; run thence with the West boundary of Section 8, North
00°
08' 00" East,
61.28 feet to a point on the North right-of-way line of Xxxxxx Avenue as
established on September 27, 1967; thence with said right-of-way line South
89°
47' 00" East, 205.00 feet
for
a point of beginning:
Thence
North 00° 08' 00" East, 175.00 feet; thence South 89° 47' 00" East, 30.00 feet;
thence
South 00° 08' 00" West, 175.00 feet to the North right-of-way line of Xxxxxx
Avenue; thence with said right-of-way line North 89° 47' 00" West, 30.00 feet to
the point
of
beginning.
EXHIBIT
G
FORM
OF XXXX OF SALE
EXHIBIT
"G"
XXXX
OF SALE AND GENERAL ASSIGNMENT
This
XXXX
OF SALE AND GENERAL ASSIGNMENT ("Assignment")
is
made and entered into as of the
____
day
of,
______________2006 ("Effective Date"), by and between GLIMCHER UNIVERSITY
MALL LIMITED PARTNERSHIP, a Delaware limited partnership, ("Assignor")
and
_______________, a
________________ ("Assignee").
RECITALS:
A. Assignor
and Assignee entered into that certain Agreement of Sale and Purchase and
Joint
Escrow
Instructions dated ________________,
2006
("Agreement")
with
respect to the sale of the "Property"
described therein.
B. Assignor
desires to assign and transfer to the Assignee all of Assignor's right, title
and interest in and to the Intangible Property, Contracts, Leases, Security
Deposits and Personal Property, as such terms are defined in the Agreement,
and
Assignee desire to accept such assignment and to assume and perform all of
Assignor's covenants and obligations in and under the Contracts and Leases
from
and after the date hereof.
NOW,
THEREFORE, in consideration of the foregoing recitals and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1.
Assignor hereby assigns and transfers to Assignee all of Assignor's right,
title
and interest in and
to
the Intangible Property, Contracts, Leases, Security Deposits and Personal
Property.
2.
Assignee hereby accepts the above assignment and expressly assume and covenant
to keep, perform,
fulfill and discharge all of the terms, covenants, conditions and obligations
required to be kept,
performed, fulfilled and discharged by Assignor under the Contracts and the
Leases from and after
the
date hereof. A list of the Contracts and Leases to be assigned by Assignor
to
Assignee and assumed by Assignee is set forth on Schedule
"1" to
this
Assignment.
3. Assignor
represents and warrants to Assignee:
|
(a)
|
that
Assignor is the owner and holder of the lessor interest in and
to the
Leases and
has the full right, power and authority to assign the same as herein
provided; and
|
|
(b)
|
that
there are no leases, tenancies, occupancies, licenses, concessions,
offers
to lease,
letters of intent or other like commitments affecting the Property,
except
for the Leases.
|
|
(c)
|
that
the Intangible Property and the Personal Property are free and
clear from
all encumbrances
and that Assignor does warrant and will forever defend the same
to
Assignee against the lawful claims and demands of all persons
whatsoever;
|
4. Indemnification.
| (a) |
By
Assignor. Assignor hereby agrees to defend, indemnify and hold
harmless
Assignee
from and against all liability, loss, cost, damage or expense arising
out
of or resulting from the breach by Assignor of: (i) any of Assignor's
representations
or warranties contained herein; or (ii) any obligations
of
|
Assignor
under the Contracts, or as landlord under the Leases, arising prior to
the
Effective Date.
| (b) |
By
Assignee. Assignee hereby agrees to defend, indemnify and hold
harmless
Assignor
from and against all liability, loss, cost, damage or expense arising
out
of
or resulting from any obligations of Assignee under the Contracts,
or as
landlord
under the Leases, arising from and after the Effective
Date.
|
5.
This
Agreement shall be binding upon and inure to the benefit of Assignor and
Assignee, and their
respective legal representatives, successors, and assigns.
IN
WITNESS WHEREOF, Assignor and Assignee have duly executed this Assignment
as of
the day and year first above written.
|
"ASSIGNOR"
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By
GLIMCHER TAMPA, INC.,
a
Delaware corporation, its sole General Partner
By:
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
President
and Chief Executive Officer
|
"ASSIGNEE"
____________________________________________
|
SCHEDULE
"1" TO XXXX OF SALE
EXHIBIT
"H”
FORM
OF GUARANTY OF LEASE
Ohio
Entertainment Corporation (Tenant”) is the tenant under that certain Lease dated
February 1, 1995, as amended, between Tenant and Xxxxxx Capital Management,
LLC,
as Landlord (“Xxxxxx”), for
premises located in University Mall, Tampa, Florida (“Theatre Lease”). Tenant is
a wholly owned subsidiary
of Glimcher Properties Limited Partnership ("Guarantor”). In consideration of
Xxxxxx closing
on the purchase of University Mall, Guarantor hereby unconditionally and
absolutely guarantees unto Xxxxxx, it successors and assigns, the full, prompt
and complete payment by Tenant of the Annual Minimum
Rental only due under the Theatre Lease for the current term thereof, that
expires December 31,
2011,
in the amount of One Million, Fifty-four Thousand Sixty-eight Dollars
($1,054,068) per year, if,
and
only if, Tenant fails to pay the same after commercially reasonable collections
attempts by Xxxxxx.
Guarantor shall have no obligation for the performance of any other obligation
of Tenant under the Theatre Lease.
Guarantor’s
obligations hereunder are subject to any and all defenses to any claims that
are
available
to Tenant under the Theatre Lease.
This
Guaranty shall be binding upon Guarantor, Guarantor's successors and assigns,
and shall inure
to
the benefit of Xxxxxx, its successors and assigns, and to the benefit of
any
successor to the interest
of Xxxxxx under the Lease.
Signed
And Acknowledged
In
The
Presence Of:
GUARANTOR:
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP
a
Delaware limited partnership
By:
GLIMCHER TAMPA, INC.
a
Delaware corporation, its sole General Partner
By:
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Vice President
MANAGEMENT
AGREEMENT
by
and
between
[TBD],
LLC
as
Owner
And
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP
as
Manager
for
UNIVERSITY
MALL
TAMPA,
FLORIDA
xxxxx
i
MANAGEMENT
AGREEMENT
THIS
AGREEMENT made as of the ____ day of _______________ 2007
(hereinafter referred to
as the
"Effective Date"), by and between,
[TBD]
LLC, a
______________ limited
liability company (hereinafter referred to as "Owner"), and GLIMCHER PROPERTIES
LIMITED PARTNERSHIP, a Delaware limited partnership ("GPLP" or
"Manager").
RECITALS
|
A.
|
Owner
is the fee owner of certain lands situated in the City of Tampa,
Hillsborough
County, Florida (hereinafter referred to as the 'Premises") on
which
is
situated an enclosed regional mall shopping center generally known
as
University
Mall (hereinafter referred to as "Shopping Center");
and
|
|
B.
|
Manager
is experienced in providing management services to shopping centers,
which
management services are more particularly described in Article
2 hereof;
and
|
|
C.
|
Owner,
and Manager desire to provide herein for the management, operation,
and
maintenance, of the Shopping
Center.
|
NOW
THEREFORE, in consideration of the mutual promises hereinafter contained
and
other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged,
the parties hereto, intending to be legally bound hereby, covenant and agree
as
follows:
ARTICLE
1
TERM
1.1
TERM:
The
term of this Agreement shall commence on the Effective Date and shall
continue until the earlier to occur of: (i) ____________,
2008
(date that is 12 months from the closing
date); or (ii) a termination pursuant to the provisions of Section 7.13 below.
Thereafter, this Agreement shall continue on a month-to-month basis and either
party shall have the right to terminate this Agreement upon thirty (30) days
notice to the other party.
ARTICLE
2
MANAGEMENT
SERVICES
2.1
APPOINTMENT OF MANAGER: Owner hereby appoints Manager as its sole and
exclusive agent for the performance of the duties and obligations set forth
in
this Agreement and hereby authorizes Manager to exercise such powers with
respect to the Shopping Center as may be necessary for the performance of
Manager's duties and obligations hereunder.
In
performing the Management Services (as hereinafter defined) Manager is, and
at
all times shall be, acting as an independent contractor employed by Owner.
Manager, in performing Management
Services, shall have no apparent, inherent, or ostensible authority but shall
be
limited
in its authority to the express grants of authority provided in this Agreement.
Manager will
not
take any actions, pertaining to the management of the Shopping Center in
contravention of this Agreement.
2.2
RESTRICTIONS ON AUTHORITY:
a. Manager,
in performing the Management Services, without limiting the generality of
the
preceding section, may not:
(i) commingle
funds belonging to Owner with funds belonging to Manager or with funds belonging
to others; or
(ii) hold
itself out as having any relationship with Owner except as expressly provided
in
this Agreement.
b. Manager
shall not, without the prior written approval of Owner:
(i) sell,
exchange, or otherwise dispose of, grant any purchase rights, rights of first
refusal to purchase or to approve any offer to purchase or exchange the Premises
or any material portion thereof or to lease all or substantially all of the
Shopping Center in a single transaction;
(ii) mortgage,
pledge, or otherwise encumber all or any part of or interest in the
Shopping Center other than pursuant to leases;
(iii) cause
to
be made any repairs, capital improvements, alterations, demolition,
renovations, or reconstruction of the Shopping Center other than substantially
in
accordance with the Annual Operating Budget (as defined in the Operating
Agreement);
(iv) settle
or
compromise any insurance claim or legal proceedings brought by or against
Owner,
the Shopping Center or other property of Owner where the settlement amount
shall
exceed the greater of (1) $30,000 or (2) the amount, if any, that shall be
provided in the Annual Operating Budget;
2
(v) voluntarily
prepay the outstanding principal balance of any mortgage encumbering the
Shopping Center or any other debt (other than trade debt paid in the ordinary
course of business) of Owner;
(vi) cause
the
layout or plans for the Shopping Center to be amended, supplemented
or otherwise modified;
(vii) make
a
material tax election or select or modify accounting methods for the
Shopping Center or Owner; or
(viii) file
or
contest any reassessment or other adjustment of real estate taxes for the
Shopping Center.
2.3
AUTHORIZED MANAGEMENT SERVICES: In its capacity as agent for a disclosed
principal, Manager shall perform the following services (herein called,
collectively "Management Services"), in a manner consistent with that typically
employed in the operation of a first class shopping center, using reasonable
care and diligence, all subject to the terms of this Agreement and in accordance
with the Annual Operating Budget:
a. Manager
shall maintain liaison with the leasing, design and construction staffs,
and
all
special consultants of Owner, as may be desirable or necessary for the
successful performance
of Manager's responsibilities for the operation and management of the Shopping
Center. Owner recognizes that the use of said staffs and consultants involves
extraordinary costs which are not included in the Management Fee as described
in
this Article, and agrees that these services,
so long as they are specifically enumerated in the Annual Operating Budget,
will
be paid
for
as provided for in this Agreement. Manager shall obtain Owner’s prior written
consent before entering into any third-party agreements for amounts in excess
of
Ten Thousand Dollars ($10,000.00), and shall not enter into any such agreement
for a period longer than one (1) year; provided, however, that Owner
acknowledges that Seller will contract with companies affiliated with Manager
for housekeeping and security services, for fees customarily paid by Manager
to
such companies. Owner agrees to notify Manager of any deficiencies in the
performance of such housekeeping
and securities companies. Manager agrees that Owner shall have the right
to
require
Manager to terminate its agreement with such housekeeping and securities
companies ninety (90) days after the Effective Date if Owner, in its sole
discretion, is not satisfied with the performance of such
companies.
b. On
or
before November 15th of each year, Manager shall prepare and submit to Owner
for
its approval, a Shopping Center Budget (hereinafter referred to as "Budget")
setting forth
in
sufficient detail the estimated operating receipts and expenditures for the
Shopping Center
for the next succeeding fiscal year. The Budget shall describe in separate
categories those expenditures of an on-going nature ("Operating Expenses"),
those of a capital nature ("Capital Expense"), and those of a non-recurring
or
non-routine nature ("Extraordinary Expenses"), along with the approximate
dates
funds for the expenditures will be needed.
3
c. Manager
shall be authorized to only make those expenditures and to incur only
those
obligations provided for in the Annual Operating Budget; provided, however,
that
Manager shall not exceed, in any category, the expenditure limits set forth
in
the Annual Operating Budget without
the approval of Owner. In the event of an emergency, Manager will use
commercially reasonable
attempts to contact Owner’s representative, ___________________,
at
Ph.:___________,
to
obtain prior approval of any expenditure . If such prior approval
cannot be obtained after commercially reasonably attempts, Manager shall
be
authorized
to expend up to an aggregate of $50,000 in connection with each such emergency.
Manager
shall notify Owner in the event of such an emergency as soon as possible
(but in
no event
later than five (5) days after the occurrence thereof) setting forth the
details
of the emergency
and the expenditure made in connection therewith. If by December 31st of
any
year the
Annual Operating Budget for any succeeding year has not been approved by
Owner,
the Annual
Operating Budget for the preceding year shall continue to govern until a
new
Annual Operating Budget is approved.
d. Manager
shall use commercially reasonable efforts to collect all fixed rents,
percentage
rents and other sums, including, without limitation, common area maintenance
charges,
heating, ventilating and air conditioning charges, and contributions for
or
pro-rata shares of,
as
the case may be, common advertising/promotional fees, taxes and insurance,
whether payable
as additional rent or otherwise, payable (i) by tenants under their respective
leases and other agreements, or (ii) by other parties under license, service
or
other agreements, and obtain and
review statements of sales furnished by tenants to support their payment
of
percentage rentals
or other sums and deductions, and, except as set forth in the last paragraph
of
this subsection,
deposit promptly the sums collected in a commercial bank account (hereinafter
referred
to as "Account") for the Shopping Center at a bank chosen by Manager with
Owner's approval. Manager agrees to use reasonable efforts to adhere to the
policies and procedures set forth in the memoranda attached hereto as
Exhibit
A and
made
a part hereof.
e. Enforce
by reasonable means the performance by the various tenants of all requirements
of their respective leases and the observance of all rules and regulations
of
the Shopping Center, by all reasonable means other than the commencement
of
legal proceedings, provided that Manager shall not, without prior written
approval of Owner, terminate any lease or give formal notice of default which
would cause such lease to be terminated.
f. Cause
the
Shopping Center to be maintained in good operating condition and supervise
the
maintenance thereof, and hire such persons, firms or corporations and purchase
or lease such equipment and supplies at reasonable rates and costs prevailing
in
the industry as may be
necessary or desirable to accomplish such purposes. Manager shall not, without
the prior written
approval of Owner, enter into any maintenance or service contract that exceeds
one (1) years in duration. All such maintenance shall be performed as required
pursuant to any lease affecting the Shopping Center.
g. Use
good
faith efforts to render monthly reports (including but not limited to a
monthly
income and expense statement, a monthly cash receipts report, and a monthly
aging report)
relating to the management and operation of the Shopping Center for the
preceding
4
calendar
month, on or before the twentieth (20th) day of each month, in a form
satisfactory to Owner. If Owner specifies report formats requiring revision
to
Manager's standardized report formats, Owner shall reimburse Manager for
the
cost to convert such formats in order to provide the requested report format.
Such reports will be prepared from the books, records and accounts maintained
by
Manager for the Shopping Center, which shall be kept in accordance with the
reasonable requirements of Owner and preserved for at least three (3) years
after the end of the applicable
fiscal year. Owner shall have the right during any fiscal year and for the
aforesaid three
(3)
year period following each respective fiscal year, to audit and examine at
its
sole cost and
expense, such books and records, including, without limitation, the right
to
copy any portion or
portions thereof, at reasonable times during business hours upon, but not
less
than three (3) days'
prior notice.
h. Comply
with the terms and provisions contained in any mortgage loan placed on the
Shopping Center by Owner and agree to subordinate this Agreement to any such
mortgage loan.
i. Assist
Owner in procuring, at Owner's sole expense, a comprehensive general
liability
insurance policy, insuring both Owner and Manager for the term of this
Agreement. Such
policy shall provide not less than the following limits and
coverages:
Direct,
Contingent and Contractual
| Bodily Injury Liability |
$10,000,000
per occurrence
|
Direct,
Contingent and Contractual
| Premises Damage Liability |
$1,000,000
per occurrence
|
and
assist Owner in procuring, at Owner's sole expense, property insurance and
other
insurance as
directed by Owner.
Once
obtained by Owner, Manager will administer the Shopping Center insurance
program
as required by Owner. In the event Owner fails to maintain insurance as provided
for herein and if Owner fails to correct such default after reasonable notice
from Manager, Manager may purchase such insurance at Owner's
expense.
j. Supervise
and assist in the establishment of a merchants association (the "Merchants'
Association") or promotional fund (the "Promotional Fund"), as directed by
Owner, including
appropriate bylaws, and represent Owner at any meetings or functions of the
Merchants'
Association or administer the Promotional Fund, as the case may be.
k. Subject
to the prior approval of Owner, initiate and supervise advertisement and
promotion of the Shopping Center and the coordination of the Shopping Center
promotion in accordance with the instructions and budget approved by Owner.
The
Annual Operating Budget shall contain sums sufficient to promote and market
the
Shopping Center in a manner reasonably consistent with comparable shopping
centers.
5
l.
Perform any and all related or collateral business and management functions
pertaining
to the customary daily operation of the Shopping Center, as expressly set
forth
in the Annual Operating budget or with Owner’s prior written
approval.
2.4
MANAGEMENT PERSONNEL: Owner acknowledges that in order to perform the
services required by Manager hereunder, it will be necessary for Manager
to have
in its employ,
all employees necessary for the operation, maintenance and management of
the
Shopping
Center. Owner shall have no obligation to pay any expenses (including without
limitation
salaries and fringe benefits) that are incurred in connection with the
employment of any
directors, officers or other home office employees of Manager or any of
Manager's affiliates. On-site personnel shall be employees of Manager where
such
on-site personnel perform services and
Manager shall have no authority to hire employees for Owner. Manager agrees
that
the staff
available to it in connection with the services to be rendered hereunder
will at
all times during
the term of this Agreement consist of sufficient personnel to enable it to
efficiently and effectively carry on its obligations pursuant to this Agreement.
Compensation, including fringe benefits,
for the services of on-site operating and maintenance employees shall be
paid by
Manager but shall be reimbursed by Owner, subject to and in accordance with
the
Annual Operating
Budget. Manager agrees that Owner shall have no liability for any action
taken
by and
shall
to indemnify and hold Owner harmless of, from and against any and all claims,
liabilities
or costs attributable to Manager’s employees
In
addition to those services rendered by staff personnel employed at the Shopping
Center,
Owner acknowledges that services will be required of Manager's Regional
Management Staff
("Regional Staff"). Provided that these expenses have been authorized in
the
Annual Operating
Budget, Owner will pay the related pro rata expenses of the Regional Staff
based
on the
amount of hours expended for the Shopping Center in relation to the total
hours
worked by the
Regional Staff per billing period. The expenses of the Regional Staff shall
be
charged at or below the rate comparable to that commonly charged in the shopping
center industry for similar services by similarly qualified
personnel.
2.5
MANAGEMENT COMMISSIONS: As commission for the services performed pursuant
to this Article, Owner shall pay Manager monthly in arrears, a fee equal
to
three and one-half
percent (3.5%) of all base minimum rent and percentage or overage rent income
from the
Shopping Center (hereafter referred to as the "Total Rental Income"). Total
Rental Income shall include all amounts of base minimum rents and all overage
or
percentage rents, charged to tenants
or occupants (including pushcart tenants and temporary tenants or occupants
under license
agreements) of the Shopping Center. Total Rental Income shall not include
amounts charged
to tenants or occupants by Owner, for common area maintenance, real estate
taxes
and assessments,
utilities, insurance, security, and the like or contributions to the Merchants'
Association
or Promotional Fund.
Said
commission will be computed monthly and paid to Manager in accordance with
the
Annual Operating Budget from the Account as provided for in Section 2.3(d),
to
the extent funds are available in the Account.
6
ARTICLE
3
INDEMNIFICATION
Each
party shall indemnify and hold the other party harmless against and from
any
liabilities,
claims, demands or legal proceedings (including the costs, expenses and
reasonable attorneys'
fees incurred in connection with the defense of any such matter) which may
be
made or brought
against the other party arising out of the operation of the Shopping Center
by
such party or
its
employees, contractors or agents, except with respect to claims or demands
due
to the other's
(or its employees, contractors or agents) negligence or willful misconduct
or
any act or omission outside of the scope of or in breach of, the provisions
of
this Agreement; provided, however, that this indemnity is on the condition,
as
to any particular event, that the indemnitee:
(i) notifies
the indemnitor or its insurers in writing as soon as possible after notice
of
any injury or claim is received, and
(ii) takes
no
steps (such as admission of liability) which will operate to bar the
indemnitor
from obtaining any protection afforded by any policies of insurance it may
hold
or
which will operate to prejudice the defense in any such legal proceedings
or
otherwise
prevent the indemnitor from protecting itself against such claim, demand
or
legal
proceedings.
It
is
understood that the indemnitor shall have the sole and exclusive right to
conduct the defense of any such claim, demand or legal proceeding. The terms
of
this Article 3 shall survive the
expiration or termination of this Agreement and shall be binding upon each
parties successors and
assigns.
ARTICLE
4
ASSIGNMENT
This
Agreement is subject to the transfer or assignment in any manner or means
whatsoever
by Owner, but this Agreement shall not be assigned by Manager without the
prior
written consent of Owner. In the event of such an assignment by Manager,
assignee shall agree, by written instrument inuring to the benefit of Owner,
its
successors and assigns, to be bound by all of the provisions of this
Agreement.
ARTICLE
5
NOTICES
Every
notice, demand, consent, approval or other document or instrument required
or
permitted to be served upon any of the parties hereto (collectively, "Notices")
shall be in writing and
shall
be deemed to have been duly served on the day of mailing, and shall be sent
by
registered
or certified United States Mail, postage prepaid, return receipt requested,
addressed to the respective parties at the addresses stated below:
7
| TO OWNER: |
[TBD]
LLC
c/o
Somera Capital Management, LLC
Attention:
Xxxxxxx Xxxxxxxxxxx
000
X. Xxxxxxxxx Xxxx., Xxxxx 0000
Xx
Xxxxxxx, Xxxxxxxxxx 00000
|
| TO MANAGER: |
Glimcher
Properties Limited Partnership
Attention:
General Counsel
000
Xxxx Xxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
|
Any
party
may change the address to which Notices served upon it are to be sent by
ten
(10) days prior
written notice informing the other parties of the change of
address.
ARTICLE
6
REPORTING
Whenever
in this Agreement Manager is requested to submit reports to Owner, unless
otherwise specified, such reports will be sent to Owner at the address stated
in
Article 5. Reports required on a monthly basis as those in Article 2 relating
to
the management and operation of the Shopping Center shall be submitted to
Owner
no later than twenty (20) business days after the calendar month for which
the
report is being submitted.
ARTICLE
7
MISCELLANEOUS
7.1
APPLICABLE
LAWS: This Agreement shall be governed and construed by the
laws of
the State of Florida.
7.2
ENTIRE AGREEMENT: This Agreement shall constitute the entire agreement of
the
parties; all prior agreements between the parties with respect to the matters
herein contained, whether written or oral, are merged herein and shall be
of no
force and effect. This Agreement cannot be changed, modified, waived or
discharged orally but only by an agreement in writing signed
by
the party against whom enforcement of the change, modification, waiver or
discharge is
sought.
7.3
UNENFORCEABILITY: If any term or provision of this Agreement, or the
application
thereof to any person or circumstance, shall to any extent be held invalid
or
unenforceable
by a court of competent jurisdiction, such invalidity shall not affect other
provisions
of this Agreement or the applications thereof which can be given effect without
the invalid provision or application, and to this end the parties hereto
agree
that the provisions of this Agreement are and shall be severable.
7.4
CUMULATIVE
RIGHTS: All rights, privileges and remedies afforded the parties
by this
Agreement shall be cumulative and not exclusive, and the exercise of any
one of
such
8
remedies
shall not be deemed to be a waiver of any other right, remedy or privilege
provided for herein or available at law or equity.
7.5
TERMS: The use herein of (i) the singular number shall be deemed to mean
the
plural,
(ii) the masculine gender shall be deemed to mean the feminine or neuter,
and
(iii) the neuter
gender shall be deemed to mean the masculine or feminine whenever the sense
of
this Agreement so requires.
7.6
AFFILIATE SERVICES: All services provided by or contracted with affiliates
of
Manager
must be performed by duly licensed and qualified affiliates for the services
to
be provided.
All services provided by affiliates of Manager must be at competitive market
rates equal
to
or less than the rates charge by similarly qualified independent third parties
for similar services.
7.7
MANAGER'S INSURANCE: Manager shall, at the expense of Manager, maintain
in
full
force and effect insurance policies with respect to the employees of Manager
satisfactory to
Owner
issued by insurance companies which have an A.M. Best General Policyholder's
Service
rating of not less than "A", which are licensed in the state in which the
Shopping Center is
located and which are otherwise reasonably satisfactory to Owner. Such policies
shall provide the following coverage:
a. Worker's
compensation and employer's liability insurance subject to the statutory
limits
of the state in which the Shopping Center is located.
b. Comprehensive
automobile liability insurance in an amount not less than $5,000,000
combined single limit for bodily injury and property damage. Such insurance
requirements
may be satisfied by layering of the comprehensive automobile liability, umbrella
and
excess liability policies.
c. A
fidelity bond in the amount of $500,000 for each officer and employee of
Manager
who is associated with the management of the Shopping Center or, in the
alternative, an employee dishonesty insurance policy in the amount of
$500,000.
d. Commercial
general liability insurance in an amount not less than $5,000,000 each
occurrence, provided that such insurance coverage may be satisfied by an
umbrella policy.
7.8
SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure
to
the
benefit of the permitted successors and assigns of the respective parties
and
any person claiming
by, through or under any of the respective parties or their respective permitted
successors
or assigns.
7.9
FORCE
MAJEURE: The time for performance of any term, covenant, condition or
agreement of this Agreement, except the obligation to pay any sum of money,
shall be extended
by any period of unavoidable delays. (For purposes of this Agreement,
"unavoidable delays" shall mean delays reasonably beyond the control of the
party obligated to perform the
9
applicable
term, covenant, condition or agreement under this Agreement and shall include,
without
limiting the generality of the foregoing, delays attributable to acts of
God;
strikes; labor disputes, inability to procure labor, equipment, facilities
or
materials; governmental restrictions; riots; acts of public enemy or casualty;
but shall not include delays attributable to financial difficulties of such
party.) The party seeking to be excused hereunder shall give the other party
notice within thirty (30) days of the event upon which the excuse from
performance is based. No party to this Agreement shall incur any financial
or
other liability to the other party arising out of the
failure of said party to meet a particular date or dates as set forth herein
provided the said party
hereto has acted in good faith and any such delay arises from any of the
causes
enumerated in this Section and the said party has used reasonable diligence
to
meet said date or dates. It is understood that "reasonable diligence" shall
not
require Manager to expend funds for overtime work. If the unavoidable delay
results in a permanent cessation of work prior to completion, Manager
shall be compensated for the services provided to the date of cessation of
work
as provided
in this Agreement for the payment of these particular services.
7.10
AUTHORITY TO ENTER INTO AGREEMENT: The parties hereto represent that
they
have full authority to enter into this Agreement as conferred upon them by
the
document
creating their authority and more particularly have been authorized by the
requisite approval to enter into this Agreement and do so only in the capacities
indicated herein.
7.11
THIRD PARTY: This Agreement is made for the exclusive benefit of the parties
hereto, their successors and assigns herein permitted, and (except as otherwise
provided) not for any third party and nothing in this Agreement, express
or
implied, is intended to confer upon any person, other than the parties hereto,
their successors and assigns herein permitted, any rights or remedies by
reason
of this Agreement.
7.12
COMPLIANCE: In performing its obligations under this Agreement, Manager
shall
comply with all present and future laws, ordinances and all rules and
regulations, requirements
and orders of all governmental authorities and shall obtain all licenses
and
permits required to perform such obligations and shall file all returns and
reports lawfully required of Manager in connection with its duties hereunder,
including, but not limited to, income tax withholding
returns, Federal Insurance Contributions Act returns and reports, Federal
Unemployment
Tax Act and worker's compensation returns and reports, sales and use tax
returns
including so called rent tax returns (and shall timely pay all contributions,
taxes, costs and other amounts
due thereunder). All of the foregoing returns and reports shall be maintained
as
a part of
the
books and records of Manager.
7.13
TERMINATION: This Agreement may be terminated at anytime upon the mutual
agreement of Manager and Owner. In the event of willful misconduct, gross
negligence or fraud by
the
Manager, Owner shall have the right to immediately terminate this Agreement
by
notice to Manager.
In the event of a default by Manager or Owner in the performance of its
obligations hereunder,
and said default has not been cured or remedied within thirty (30) days
following notice
of
such default from the non-defaulting party, then the non-defaulting party
may
terminate this Agreement in the event the other party is in default in the
performance of its obligations hereunder. Either party may terminate this
Agreement by thirty (30) days notice to the other in
10
the
event
of the bankruptcy, insolvency, liquidation, dissolution, or failure to pay
its
debts as they come
due,
of the other party. In the event of the sale of the Shopping Center, Owner
may
terminate
this Agreement upon thirty (30) days notice to Manager. Manager agres to
cooperate with Owner’s existing and/or potential lenders, or potential
purchasers of the Shopping Center. Upon
expiration or termination of this Agreement, Manager agrees to cooperate
with
Owner in the
transfer of management to Owner’s designee or third party
purchaser.
7.14
COUNTERPARTS: This Agreement may be executed in several counterparts,
each
of
which shall be deemed an original, and all such counterparts shall together
constitute one and the same instrument. Facsimile signatures shall be binding
upon such signatories.
[NO
FURTHER TEXT - SIGNATURES APPEAR ON NEXT PAGE]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
OWNER:
[TBD],
LLC,
a
______________ limited
liability company
By:_________________________
Its
Managing Member
By:__________________________
Name:
Title:
MANAGER:
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
GLIMCHER PROPERTIES CORPORATION,
a
Delaware corporation, its sole general partner
By:__________________________
Xxxxxx
X.
Xxxxxxx
Executive
Vice President
12
Exhibit
“N”
FORM
OF GUARANTY OF CONTRACT OBLIGATIONS
THIS
GUARANTY OF PAYMENT (“this
Guaranty”) dated as of February __, 2007, made
by
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a _________ limited
partnership,
having an address at ___________________ (the
“Guarantor”) in favor of [TBD],
LLC, a _____________ limited
liability company (the “Buyer”).
PRELIMINARY
STATEMENT
A. Pursuant
to that certain Agreement of Sale and Purchase (as amended, the “Agreement”)
by and between Glimcher University Mall Limited Partnership (“Seller”), a
Delaware
limited partnership and a wholly-owned subsidiary of Guarantor, as seller,
and
Buyer, as
successor-in-interest to Xxxxxx Capital Management, LLC, a California limited
liability company,
as buyer, Seller has agreed to sell and Buyer has agreed to purchase (the
“Purchase and
Sale”) that certain real property described in Exhibit A attached hereto (the
“Property”) pursuant to the terms and conditions set forth in the
Agreement.
B. Section
9.12 of the Agreement provides for the post-closing survival of certain
obligations of Seller under the Agreement (the “Survival Obligations”). In
addition, Section 9.12 of the Agreement provides that Guarantor shall guaranty
such Survival Obligations in an amount up to and including Three Million
Dollars
($3,000,000.00) (the “Guaranty Threshold”).
C. Seller
has also agreed to indemnify Buyer for all transfer tax liability in excess
of
the
twenty-five percent (25%) of such transfer taxes that are Buyer’s obligation
pursuant to Section
4.8 of the Agreement (the “Transfer Tax Liability”, and together with the
Survival Obligations, the “Guaranteed Obligations”).
GUARANTOR
IS EXECUTING AND DELIVERING THIS GUARANTY IN ORDER
TO INDUCE BUYER TO CONSUMMATE THE PURCHASE AND SALE. CONSUMMATION
OF THE PURCHASE AND SALE IS SUFFICIENT CONSIDERATION
TO GUARANTOR FOR THE EXECUTION AND DELIVERY OF THIS
GUARANTY.
NOW
THEREFORE, in
consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Guarantor covenants
as
follows:
1. Guarantor,
as a primary obligor and not merely as a surety, for consideration
received, and at the request of Seller, hereby absolutely, unconditionally
and
irrevocably guarantees to Buyer, the prompt, unconditional and complete payment
of (a) the Survival
Obligations up to and including the Guaranty Threshold, and (b) the Transfer
Tax
Liability.
2. It
is
expressly understood and agreed that this is a continuing guaranty and
that
the
obligations of Guarantor hereunder are and shall be absolute under any and
all
circumstances.
3.
Any
indebtedness of Seller to Guarantor now or hereafter existing (including,
but not limited to, any rights to subrogation Guarantor may have as a result
of
any payment
by Guarantor under this Guaranty), together with any interest thereon, shall
be,
and such
indebtedness is, hereby deferred, postponed and subordinated to the prior
payment in full of the Guaranteed Obligations. Until payment in full of the
Guaranteed Obligations (and including interest accruing on the Guaranteed
Obligations after the commencement of a proceeding by or against Seller under
the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections 101
et seq.,
and
the regulations adopted and promulgated pursuant thereto (collectively, the
“Bankruptcy
Code”) which interest the parties agree shall remain a claim that is prior and
superior
to any claim of Guarantor notwithstanding any contrary practice, custom or
ruling in cases
under the Bankruptcy Code generally), Guarantor agrees not to accept any
payment
or satisfaction
of any kind of indebtedness of Seller to Guarantor and hereby assigns such
indebtedness
to Buyer, including the right to file proof of claim and to vote thereon
in
connection with
any
such proceeding under the Bankruptcy Code, including the right to vote on
any
plan of reorganization. Further, if Guarantor shall comprise more than one
person, firm or corporation, Guarantor
agrees that until such payment in full of the Guaranteed Obligations, (a)
Guarantor shall
not
accept payment from Seller by way of contribution on account of any payment
made
hereunder by Seller to Buyer, (b) Guarantor will not take any action to exercise
or enforce any rights
to
such contribution, and (c) if Guarantor should receive any payment, satisfaction
or security
for any indebtedness of Seller to Guarantor or for any contribution by Seller
to
Guarantor
for payment made hereunder by Guarantor to Buyer, the same shall be delivered
to
Buyer
in
the form received, endorsed or assigned as may be appropriate for application
on
account
of, or as security for, the Guaranteed Obligations and until so delivered,
shall
be held in trust for Buyer as security for the Guaranteed
Obligations.
4. Guarantor
agrees that, with or without notice or demand, Guarantor will reimburse Buyer,
to the extent that such reimbursement is not made by Seller, for all expenses
(including reasonable counsel fees) incurred by Buyer in connection with
the
collection against Seller
of
the Guaranteed Obligations or any portion thereof or with the enforcement
of
this Guaranty.
5. All
moneys available to Buyer for application in payment or reduction of the
Guaranteed Obligations may be applied by Buyer in such manner and in such
amounts and at such
time
or times and in such order and priority as Buyer may see fit to the payment
or
reduction
of such portion of the Guaranteed Obligations as Buyer may elect.
6. Guarantor
hereby waives notice of the acceptance hereof, presentment, demand for payment,
protest, notice of protest, or any and all notice of non-payment,
non-performance
or non-observance, or other proof, or notice or demand, whereby to charge
Guarantor
therefor.
7. Guarantor
further agrees that the validity of this Guaranty and the obligations
of Guarantor hereunder shall in no way be terminated, affected or impaired
(a)
by reason
of
the assertion by Buyer of any rights or remedies which it may have under
or with
respect
to the Agreement, or (b) by reason of the release or discharge of Seller
of any
of its obligations under the Agreement, or (c) by reason of Buyer’s failure to
exercise, or delay in exercising, any such right or remedy or any right or
remedy Buyer may have hereunder or in
-2-
respect
to this Guaranty, or (d) by reason of the commencement of a case under
the
Bankruptcy Code by or against any person obligated under the Agreement,
or (e)
by reason of any payment made on the Guaranteed Obligations, whether made
by
Seller or Guarantor or any other person, which
is
required to be refunded pursuant to any bankruptcy or insolvency law; it
being
understood
that no payment so refunded shall be considered as a payment of any portion
of
the Guaranteed
Obligations, nor shall it have the effect of reducing the liability of
Guarantor
hereunder.
It is further understood, that if Seller shall have taken advantage of,
or be
subject to the
protection of, any provision in the Bankruptcy Code, the effect of which
is to
prevent or delay Buyer from taking any remedial action against Seller,
including
the happening of any default
or event by which, under the terms of the Agreement, the Guaranteed Obligations
shall become due and payable, Buyer may, as against Guarantor, nevertheless,
declare the Guaranteed Obligations due and payable and enforce any or all
of its
rights and remedies against Guarantor provided for herein.
8. This
Agreement shall be governed by, and construed in accordance with, the
internal laws of the state in which the Property is located, without regard
to
choice of law rules.
9. This
is a
guaranty of payment and not of collection and upon any breach by
Seller
of the Guaranteed Obligations, Buyer may, at its option, proceed directly
and at
once, without
notice, against the Guarantor to collect and recover the full amount of the
liability hereunder
or any portion thereof, without proceeding against Seller. Guarantor hereby
waives the
pleading of any statute of limitations as a defense to its obligations
hereunder.
10. Each
reference herein to Buyer shall be deemed to include its successors and
assigns, to whose favor the provisions of this Guaranty shall also inure.
Each
reference herein
to
Guarantor shall be deemed to include the heirs, executors, administrators,
legal
representatives,
successors and assigns of Guarantor, all of whom shall be bound by the
provisions
of this Guaranty.
11. If
Guarantor is a partnership, the agreements herein contained shall remain
in
force
and applicable, notwithstanding any changes in the individuals comprising
the
partnership,
and the term “Guarantor,” as used herein, shall include any alternate or
successor partnership, but any predecessor partnership and their partners
shall
not thereby be released from any
liability. If Guarantor is a corporation or limited liability company, the
agreements contained
herein shall remain in full force and applicable notwithstanding any changes
in
the shareholders or members comprising, or the officers and directors or
managers relating to, the corporation or limited liability company, and the
term
“Guarantor” as used herein, shall include any
alternative or successor corporation or limited liability company, but any
predecessor corporation
or limited liability company shall not be relieved of liability
hereunder.
12. Guarantor
and its representative executing below has full power, authority and legal
right
to execute this Guaranty and to perform all its obligations under this
Guaranty.
13. All
understandings, representations and agreements heretofore had with respect
to this Guaranty are merged into this Guaranty which alone fully and completely
expresses
the agreement of Guarantor and Buyer regarding this Guaranty.
-3-
14.
This
Guaranty may not be modified, amended, waived, extended, changed, discharged
or
terminated orally or by any act or failure to act on the part of Buyer or
Seller, but only
by
an agreement in writing signed by the party against whom enforcement of any
modification,
amendment, waiver, extension, change, discharge or termination is
sought.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
IN
WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date
first
above set
forth.
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
a
_____________________ corporation
By:__________________________________
Name:
Its:
-5-
Exhibit
A
PROMISSORY
NOTE
| $5,000,000.00 |
Washington,
D.C.
|
|
June
___, 2007
|
For
value
received, the undersigned, ___________________________, a
_________________________, as
“Maker”
and not
as endorser or guarantor hereof, promises to pay to Glimcher Properties
Limited Partnership, a Delaware limited partnership, or order, (“Holder”)
at 000
Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, the principal sum of Five Million
and
no/100 DOLLARS ($5,000,000.00) in lawful money of the United States of
America,
together with interest thereon, all as hereinafter provided and upon
the
following agreements, terms, and conditions:
1. Interest
Rate.
The entire principal balance of this Note, from the date hereof until
paid in
full, shall bear no interest, except as set forth below in the event
of
default.
2. Payment.
The entire balance of this Note, shall be due and payable on December
___, 2009
(“Maturity
Date”).
Payment
shall be made on the Maturity Date in good funds, immediately available
in
Columbus, Ohio in accordance with the following wire instructions:
Transfer
funds to:
The
Huntington National Bank, Columbus OH
ABA
#:
000000000
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP
ACCOUNT
#
0000-000-0000
REFERENCE:
UNIVERSITY MALL DEPOSIT
Please
confirm wire via email to Xxxxxx Xxxxxxxx (xxxxxxxx@xxxxxxxx.xxx)
or
such
other wire instructions as Holder may provide to Maker prior to the Maturity
Date.
3. Default.
Should default be made in any payment hereunder when due, or if Maker
or any
subsidiary of Maker, whether direct or indirect, (a “Subsidiary”),
becomes
insolvent, commits
an act of bankruptcy, commence or becomes subject to an proceeding under
the
bankruptcy
laws or any other insolvency or debtor’s relief law, or dissolves, or a
receiver, liquidator
or trustee shall be appointed for Maker or any Subsidiary, or any notice
of sale
is given or any sale is made of any property of any of them except in
the
ordinary course of business, or if default
is made in the payment of any other indebtedness of any of them, or if
Maker
breaches any
covenant contained herein, then the entire indebtedness evidenced by
this Note
shall, at the option of Holder, become due and payable immediately. Maker
hereby
waives presentment, demand,
protest, and notice of dishonor and agrees to remain bound for payment
of this
obligation,
notwithstanding any extension of time, substitution or release of security,
or
any other indulgence granted to Maker, hereby waiving notice of such
extension,
substitution, release, or other indulgence.
a.
From
the date hereof until payment and performance in full of all obligations
of Maker under this Note, Maker covenants and agrees with Holder that
it will
not do,
directly or indirectly, any of the following:
i.
Liens.
Maker
shall not, without the prior written consent of Holder, create, incur,
assume or
suffer to exist any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer
of,
on or affecting the Property or, any portion thereof or Maker or any
Subsidiary,
or any interest therein, including, without limitation, any conditional
sale or
other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, the filing
of
any financing statement, and mechanic's, materialmen's and other similar
liens
and encumbrances (a “Lien”)
on
any
portion of the Property or permit any such action to be taken,
except:
1. Liens
securing that certain mortgage loan in the maximum principal amount of
$___________ made
by
_______________ to
Maker’s Subsidiary, ________________________ [Describe
the senior loan, including any mezzanine
loan](the
“Senior
Loan(s)”); and
2. Liens
for
real estate taxes and assessments not yet due.
ii.
Dissolution.
Maker
shall not, and shall not permit any Subsidiary, to
(a)
engage in any dissolution, liquidation or consolidation or merger with
or into
any other business entity, (b) engage in any business activity not related
to
the ownership and operation of the Property, (c) transfer, lease or sell,
in one
transaction or any combination of transactions, the assets
or
all or substantially all of the properties or assets of Maker or any
Subsidiary,
(d) modify, amend,
waive or terminate its organizational documents or its qualification
and good
standing in any jurisdiction or (e) Maker or any Subsidiary, to (i) dissolve,
wind up or liquidate or take any action,
or omit to take an action, as a result of which such entity would be
dissolved,
wound up or
liquidated in whole or in part, or (ii) amend, modify, waive or terminate
the
certificate of incorporation or bylaws of Maker or any Subsidiary, in
each case,
without obtaining the prior written consent of Holder.
iii.
Change
In Business. Maker
shall not, and shall not permit any Subsidiary,
to enter into any line of business other than the ownership and operation
of the
Property,
or make any material change in the scope or nature of its business objectives,
purposes or operations, or undertake or participate in activities other
than the
continuance of its present business.
iv.
Debt.
Maker
shall not create, incur or assume any (a) indebtedness or liability for
borrowed
money; (b) obligations evidenced by bonds, debentures, notes, or other
similar
instruments; (c) obligations for the deferred purchase price of property
or
services (including
trade obligations); (d) obligations under letters of credit; (e) obligations
under acceptance
facilities; (f) all guaranties, endorsements (other than for collection
or
deposit in the
2
ordinary
course of business) and other contingent obligations to purchase, to
provide
funds for payment,
to supply funds, to invest in any Person or entity, or otherwise to assure
a
creditor against
loss; and (g) obligations secured by any Liens, whether or not the obligations
have been assumed
(“Indebtedness”)
other
than the Indebtedness evidenced by this Note and any nonrecourse
carveout guaranty (as such term is commonly understood in the collateralized
mortgage
backed security industry) in connection with the Senior Loan(s) (any
such
guaranty, the “Carveout
Guaranty”),
or
permit any Subsidiary to incur any Indebtedness other than Senior
Loan(s).
v. Transfers.
Without
the prior written consent of Holder, neither Maker
nor
any Subsidiary, shall (i) directly or indirectly sell, transfer, convey,
mortgage, pledge, or
assign
the Property, any part thereof or any interest therein (including any
ownership
interest in
Maker
or any such Subsidiary); or (ii) further encumber, alienate, xxxxx x
Xxxx or
xxxxx any other
interest in the Property or any part thereof (including any ownership
interest
in Maker and any such Subsidiary), whether voluntarily or
involuntarily.
b.
From
the date hereof until payment and performance in full of all Indebtedness
and other obligations of Maker evidenced by this Note (the “Debt”),
Maker
covenants
and agrees with Holder that:
i. Existence;
Compliance with Legal Requirements. Maker
shall do or cause
to
be done all things necessary to preserve, renew and keep in full force
and
effect its existence, rights, licenses, permits and franchises and those
of its
subsidiaries.
ii. Notice
of Default. Maker
shall promptly advise Holder of any material
adverse change in the condition of Maker or any Subsidiary, financial
or
otherwise, or of the
occurrence of any event of default or any event that, with notice or
the passage
of time or both,
would constitute an event of default, of which Maker has knowledge.
iii. Perform
Senior Loan Documents. Maker
shall observe, perform and
satisfy, or cause to be observed, performed and satisfied, all the terms,
provisions, covenants and
conditions of, and shall pay when due all costs, fees and expenses to
the extent
required under
all
documents evidencing, securing or executed and/or delivered in connection
with
the Senior
Loan(s) (the “Loan
Senior Loan Documents”).Maker
shall deliver to Maker true, correct
and complete copies of all Senior Loan Documents. The Senior Loan Documents
require the timely payment of the Debt and Maker shall not, and shall
not permit
any Subsidiary to, enter into or otherwise suffer or permit any amendment,
waiver, supplement, termination or other modification
of any Senior Loan Document to permit the failure to pay the Debt on
a timely
basis,
without the prior written consent of Holder.
iv. Financial
Reporting. Maker
will keep and maintain or will cause to
be
kept and maintained all books and records required to be maintained under
the
Senior Loan Documents.
3
v. Business
and Operations. Maker
will, and will cause its Subsidiaries,
to continue to engage in the businesses presently conducted by it and
them as
and to the
extent the same are necessary for the ownership, maintenance, management
and
operation of the Property. Maker will, and will cause its Subsidiaries,
to,
qualify to do business and remain in good standing under the laws of
such
jurisdictions as may be, and to the extent, required for the ownership,
maintenance, management and operation of the Property.
vi. Costs
of Enforcement and Collection. Maker,
its successors or assigns,
shall be chargeable with and agrees to pay all costs of collection and
defense,
including reasonable
attorneys' fees and costs, incurred by Holder in connection with the
enforcement
of this
Note
and the collection of the Debt and in connection with any appellate proceeding
or post-judgment action involved therein, together with all required
service or
use taxes.
vii. Estoppel
Statement. After
request by Holder, Maker shall within ten (10) business days furnish
Holder with
a statement, duly acknowledged and certified, setting forth (i) the amount
of
the original principal amount of the Note, (ii) the unpaid principal
amount of
the Note, (iii) any offsets or defenses to the payment of the Debt, if
any,
known to Maker (iv) any
events of default or any events that, with the passage of time or notice
or
both, would constitute
an event of default, known to Maker and (v) that this Note is the valid,
legal
and binding
obligation of Maker and has not been modified or if modified, giving
particulars
of such modification. After request by Maker, Holder shall within ten
(10)
business days furnish Maker with a statement, duly acknowledged and certified,
setting forth (i) the amount of the original principal amount of the
Note, (ii)
the unpaid principal amount of the Note, (iii) any offsets or defenses
to the
payment of the Debt, if any, known to Holder (iv) any events of default
or any
events
that, with the passage of time or notice or both, would constitute an
event of
default, known
to
Holder and (v) that this Note has not been modified or if modified, giving
particulars of such
modification.
c.
Maker
represents, warrants and covenants to Holder as follows:
i. The
purpose for which Maker is organized is and shall be limited solely to
(i)
owning its direct subsidiary, ________________ (the
“Direct
Subsidiary”), (ii)
executing and delivering this Note to Holder, and (iii) transacting any
and all
lawful business for which Maker may be organized under its constitutive
law that
is incident, necessary and appropriate to accomplish the foregoing.
ii. Maker
does not own and will not own any asset or property other than its equity
interest in the Direct Subsidiary.
iii. Maker
will not engage in any business other than the ownership of its equity
interest
in the Direct Subsidiary.
iv. Maker
will not enter into any contract or agreement with any Affiliate
of Maker, any constituent party of Maker, any owner of Maker, any guarantors
of
the obligations of Maker or any Affiliate of any constituent party, owner
or
guarantor (collectively,
4
the
"Related
Parties"),except
upon terms and conditions that are commercially reasonable and substantially
similar to those that would be available on an arms-length basis with
third
parties not
so
affiliated with Maker or such Related Parties.
v. Maker
is
not obligated and will not become obligated under any Indebtedness other
than
the Debt and the Carveout Guaranty, and no Subsidiary is obligated or
will
become obligated under any Indebtedness other than (i) the Senior Loan
Documents
and (ii) trade and operational debt incurred in the ordinary course of
business
with trade creditors in amounts as are normal and reasonable under the
circumstances, provided such debt (A) is not evidenced
by a note, (B) is not in excess of sixty days from the date of invoice
and (C)
does not at
any
time exceed the amount permitted under the Senior Loan Documents in the
aggregate. No Indebtedness
other than the Senior Debt may be secured (senior, subordinate or pari
passu) by
the Property
or by any equity interest in any Subsidiary.
vi. Maker
has
not made and will not make any loans or advances to any Person and shall
not
acquire obligations or securities of any Related Party, other than its
equity
interest in the Direct Subsidiary.
vii. Maker
is
and will remain solvent and Maker will pay its debts and liabilities
(including, as applicable, shared personnel and overhead expenses) from
its
assets as the
same
shall become due.
viii. Maker
has
done or caused to be done and will do all things necessary
to observe organizational formalities and preserve its existence, and
Maker will
not, nor
will
Maker permit any Related Party to, amend, modify or otherwise change
the
partnership certificate,
partnership agreement, articles of incorporation and bylaws, operating
agreement, trust or other organizational documents of Maker or such Related
Party in a manner that will permit
the failure to pay the Debt on a timely basis, without the prior written
consent
of Holder.
ix. Maker
will maintain all of its books, records, financial statements and
bank
accounts separate from those of any other Person and Maker's assets will
not be
listed as
assets
on the financial statement of any other Person. Maker will file its own
tax
returns and will
not
file a consolidated federal income tax return with any other Person.
Maker shall
maintain
its books, records, resolutions and agreements as official records.
x. Maker
will be, and at all times will hold itself out to the public as, a legal
entity
separate and distinct from any other Person (including any Affiliate
or other
Related Party), shall correct any known misunderstanding regarding its
status as
a separate entity, shall conduct business in its own name and shall maintain
and
utilize separate stationery, invoices and checks.
xi. As
of the
date of this Note, Maker has adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character
and
in light of its contemplated
business operations.
5
xii. Neither
Maker nor any Related Party will seek the dissolution, winding
up, liquidation, consolidation or merger in whole or in part, or the
sale of
material assets of
Maker.
xiii. Maker
will not commingle its assets with those of any other Person
and will hold all of its assets in its own name;
xiv. Maker
will not guarantee or become obligated for the debts of any other
Person and does not and will not hold itself out as being responsible
for the
debts or obligations
of any other Person, provided that Maker may execute and deliver the
Carveout
Guaranty.
xv. Intentionally
omitted.
xvi. If
Maker
is an approved single member limited liability company, Maker
shall be a Delaware limited liability company that has at least (x) two
(2)
springing members
who are individuals acceptable to Holder and who shall automatically
become
members
of the limited liability company having a 0% economic interest therein
upon the
occurrence
of any event which would cause the sole member of the limited liability
company
to cease
to
be a member thereof, and (y) two (2) duly appointed Independent Directors
(as
hereinafter
defined) as directors or managers who may also be springing members,
and has not
caused
or
allowed and will not cause or allow the directors or managers of such
entity to
take any action
requiring the unanimous affirmative vote of one hundred percent (100%)
of the
members of
its
board of directors or its managers unless both Independent Directors
shall have
participated in
such
vote;
xvii. Maker
shall at all times cause there to be at least two (2) duly appointed
members of
the board of directors (if Maker is a corporation) or members (if Maker
is a
limited liability company) of Maker (in either case, an “Independent
Director”)reasonably
satisfactory
to Holder who is provided by a nationally recognized company that provides
professional
independent directors and is not at the time of initial appointment and
has not
been at
any
time during the preceding five (5) years and shall not be while serving
as an
Independent Director:
(i) a stockholder, director (other than as an Independent Director of
Maker or
of a special
purpose entity affiliated with Maker), officer, employee, partner, attorney
or
counsel of Maker; (ii) a creditor, customer, supplier or other Person
who
derives any of its purchases or revenues (other than any fees derived
from the
performance of standard corporate representative services) from its activities
with Maker or or any Affiliate of Maker; (iii) a Person controlling or
under
common control with any such stockholder, partner, creditor, customer,
supplier
or other Person; or (iv) a member of the immediate family of any such
stockholder, director, officer, employee,
partner, creditor, customer, supplier or other Person. (As used herein,
the term
“control”
means
the
possession, directly or indirectly, of the power to direct or cause the
direction
of management, policies or activities of a Person, whether through ownership
of
voting securities, by contract or otherwise.)
6
xviii. Maker
shall allocate fairly and reasonably any material overhead expenses
that are shared with an Affiliate, including paying for office space
and
services performed
by any employee of an Affiliate or Related Party.
xix. Maker
shall not pledge its assets for the benefit of any other Person
other than with respect to the Loan.
xx. Maker
shall maintain a sufficient number of employees, if any, in light of
its
contemplated business operations and pay the salaries of its own employees
from
its own funds.
xxi. All
information submitted by Maker to Holder in connection with the Debt
or in
satisfaction of the terms thereof and all statements of fact made by
Maker in
this Note
are
accurate, complete and correct in all material respects. Maker has disclosed
to
Holder all
material facts and has not failed to disclose any material fact that
could cause
any representation
or warranty made herein to be materially misleading.
xxii. Maker
agrees that all of the representations and warranties of Maker
set
forth in Section 4.c. and elsewhere in this Note shall survive for so
long as
any amount remains
owing to Holder under this Note. All representations, warranties, covenants
and
agreements
made in this Note by Maker shall be deemed to have been relied upon by
Holder
notwithstanding any investigation heretofore or hereafter made by Holder
or on
its behalf.
5.Default
Interest. If
Maker
fails to pay in full the outstanding balance due under this
Note
on its due date, or if Maker otherwise defaults under this Note, this
Note shall
bear interest at the lesser of the maximum rate per annum allowable by
law in
the State of Florida, or the rate of eighteen percent (18%) per annum,
from the
date of default by Maker until the default is fully cured.
6.Definitions.
Capitalized
terms not herein defined shall have the meaning ascribed to
such
terms in that certain Agreement of Sale and Purchase, dated as of the
25th day
of April, 2007,
by
and between Glimcher University Mall Limited Partnership, a Delaware
limited
partnership,
as Seller, and Xxxxxx Capital Management, LLC, a California limited liability
company, as Buyer. For all purposes of this Note:
"Affiliate"shall
mean, as to any Person, any other Person that, directly or indirectly,
is in control of, is controlled by or is under common control with such
Person
or is a director or officer of such Person or of an Affiliate of such
Person.
"Person"
shall
mean any individual, corporation, partnership, joint venture, limited
liability company, estate, trust, unincorporated association, any federal,
state, county or municipal government or any bureau, department or agency
thereof and any fiduciary acting in such capacity on behalf of any of
the
foregoing.
7
7. Maximum
Interest. Notwithstanding
any other provision of this Note, fees, interest
and charges payable pursuant to this Note shall not exceed the maximum,
if any,
permitted
by governing law.
8. Applicable
Law. This
Note
shall be interpreted and construed in accordance with and governed by
the laws
of the State of Florida.
9. Successors
and Assigns. This
Note
shall inure to the benefit of Holder and any successors or assigns.
MAKER:
_________________________________,
A
_______________________________
By:__________________________________
Its:__________________________________
8
EIGHTH
AMENDMENT TO
AGREEMENT
OF SALE AND PURCHASE
This
Eighth Amendment to Agreement of Sale and Purchase (“Amendment”) is made this
____
day
of June, 2007, by and between Glimcher University Mall Limited Partnership,
a
Delaware
limited partnership (“Seller”), Xxxxxx Capital Management, LLC, a California
limited liability
company (“Buyer”), Somerock University Mall Owner, LLC, a Delaware limited
liability
company (“New LLC”), and Somerock University Mall Mezz, LLC, a Delaware limited
liability company (“Mezz”).
WHEREAS,
Seller and Buyer entered into that certain Agreement of Sale and
Purchase dated
April 25, 2007, as amended by that certain First Amendment to Agreement
of Sale
and Purchase
dated May 16, 2007, that certain Second Amendment to Agreement of
Sale and
Purchase
dated May 25, 2007, that certain Third Amendment to Agreement of
Sale and
Purchase dated May 30, 2007, that certain Fourth Amendment to Agreement
of Sale
and Purchase dated May 31, 2007, that certain Fifth Amendment to
Agreement of
Purchase and Sale dated June 1, 2007, that certain Sixth Amendment
to Agreement
of Purchase and Sale dated June 4, 2007 and that certain Seventh
Amendment to
Agreement of Purchase and Sale dated June 13, 2007 (as amended, the
“Purchase
Agreement”) for the sale and purchase of the Real Property commonly known as
“University Mall” located in Tampa, Florida (the “Property”);
WHEREAS,
Seller has formed New LLC and owns 100% of the membership interests
in New LLC
(the “New LLC Interest”);
WHEREAS,
Seller desires to contribute the Property, and all of Seller’s right, title and
interest,
if any, in the Contracts, the Intangible Property, the Leases, the
Personal
Property and the
Security Deposits (collectively, the “New LLC Property”) to New
LLC;
WHEREAS,
Mezz, an affiliate of Buyer, desires to purchase, and Seller desires
to sell, to
Mezz the New LLC Interest (the “New LLC Transaction”);
WHEREAS,
Seller and Buyer desire to amend the terms and conditions of the
Purchase
Agreement, as set forth herein, in order to accommodate the New LLC
Transaction:
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which
are
hereby acknowledged by the parties hereto, Seller, Buyer, New LLC,
and Mezz,
intending
to be legally bound, do hereby agree as follows:
| 1. |
Preamble
and Recitals; Definitions.
|
|
a.
|
The
preamble and recitals above are incorporated herein as
if fully
rewritten
herein.
|
|
b.
|
Capitalized
terms not defined herein shall have the meanings set forth
in the
Purchase Agreement.
|
| 2. |
Consummation
of the New LLC Transaction.
|
|
a.
|
Subject
to the terms and conditions of this Amendment, and in contemplation
of the consummation of the New LLC Transaction, for valuable
consideration in hand paid, the receipt and sufficiency
of which is
hereby
acknowledged, Buyer hereby assigns all of its right, title
and
interest
in and to the Purchase Agreement to
Mezz.
|
|
b.
|
Notwithstanding
anything contained in the Purchase Agreement to the contrary,
prior to the
closing of the New LLC Transaction (such date, the “LLC
Closing Date”), and as a condition to the parties’ obligations to
close
the New LLC Transaction, Seller shall transfer title to
the New LLC
Property to New LLC; and Seller and New LLC shall execute
and deliver to
Title Company the Seller LLC Deliveries and the New LLC
Deliveries (each
as defined below), as applicable. Seller shall also cause
Glimcher
Properties Limited Partnership (“GPLP”) to deliver the GPLP Deliveries
(defined below) to Title Company. Simultaneously with said
deliveries to
Title Company, Seller, New LLC and GPLP shall each deliver
copies of their
respective deliveries to the addressees listed in Section
1.2 of the
Purchase Agreement.
|
|
c.
|
It
shall be a condition precedent to New LLC’s obligation to close that the
Title Company has committed to issue in favor of New LLC
an extended
coverage
owner’s title insurance policy in the form attached hereto as
Exhibit
“AA”.
|
|
d.
|
Based
upon and subject to the terms, agreements, warranties,
representations
and conditions of the Purchase Agreement, on the Closing
Date,
Mezz shall purchase the New LLC Interest from Seller for
the Purchase
Price, subject to any adjustments or credits as set forth
in the Purchase
Agreement.
|
|
e.
|
On
or before the Closing Date, Seller and Mezz shall each
deliver to Title
Company
their respective executed counterpart signature page to
that certain
Assignment and Assumption Agreement attached hereto as
Exhibit “BB”, and
Seller and Mezz shall execute and deliver the Second Seller
Deliveries and
the Mezz Deliveries (each defined below), as applicable,
to Title
Company.
|
| 3. |
Deliveries
|
| a. |
Section
4.3 of the Purchase Agreement is hereby deleted and replaced
in
its entirety with the following:
|
| i. |
LLC
Closing Date Deliveries.
|
A.
On the
LLC Closing Date, Seller shall deliver to Title Company
its executed counterpart signature pages to the
-2-
following
documents (collectively, the “Seller’s LLC Deliveries”):
(a) Deed
in
the form attached as Exhibit “F” to the Purchase
Agreement (the “Deed”), executed and acknowledged
by Seller, conveying title to the Real Property
owned by Seller to New LLC, subject only to the Permitted
Exceptions;
(b) Two
(2)
counterpart originals of a xxxx of sale and general assignment in
the form
attached as Exhibit “G” to the
Purchase Agreement (the “Xxxx of Sale”), as to the Personal
Property;
(c) A
certified rent roll;
(d) Seller’s
reaffirmation of its representations and warranties
under Section 5.6 of the Purchase Agreement; and
(e) Such
other documents as may be reasonably required
by Title Company in order to close the transaction contemplated by
this
Agreement.
B.
On the
LLC Closing Date, Seller shall cause GPLP to deliver
to Title Company its executed counterpart signature pages to
the
following documents (collectively, the “GPLP Deliveries”):
(a) Two
(2)
originals of that certain Guaranty of Theatre
Lease Obligations in the form attached as Exhibit “H” to the Purchase Agreement;
and
(b) Two
(2)
originals of that certain Guaranty of Contract
Obligations executed by GPLP in the form attached
as Exhibit “N” to the Purchase Agreement.
C.
On the
LLC Closing Date, New LLC shall deliver to Title Company its executed
counterpart signature pages to the following documents (collectively,
the “New
LLC Deliveries”):
(a) Two
(2)
counterpart originals of the Xxxx of Sale; and
(b) Such
other documents as may be reasonably required
by Title Company in order to close the transaction contemplated by
this
Agreement.
-3-
| b. |
Section
4.4 of the Purchase Agreement is hereby deleted and replaced
in
its
entirety with the following:
|
| i. |
Closing
Date Deliveries.
|
A.
On or
before the Closing Date, Seller shall deliver to Title Company its
executed
counterpart signature pages to the following documents (collectively,
the
“Second Seller Deliveries”):
(a) Certification
required by the Foreign Investors Real Property
Tax Act, as amended, and any similar state statute or regulation
(the
“Non-Foreign Certificate”), executed by Seller;
(b) A
certified rent roll;
(c) Copies
of
letters terminating all Contracts, other than
those Seller is not required to terminate as provided in Section
1.5 of the
Purchase Agreement; and
(d) Two
(2)
originals of that certain Assignment and Assumption
Agreement in the form attached hereto as Exhibit
“BB”.
B.
On
or
before the Closing Date, Mezz shall deliver to Title Company
the following (collectively, the “Mezz Deliveries”):
(a) the
Purchase Price, plus all net prorations, closing costs
and
other funds required to be paid or provided by Mezz
under the Purchase Agreement (all monies Mezz is required to deliver
shall be
wired to the account designated by Title Company and available for
disbursement
no later than 12 noon EST, on the Closing Date); and
(b) Two
(2)
originals of its executed counterpart signature page to the Assignment
and
Assumption Agreement.
| 4. |
Representations
and Warranties.
|
| a. |
Seller
hereby agrees that the representations and warranties given
by
Seller
to Buyer pursuant to Section 5.6 of the Purchase Agreement
shall inure to
the benefit of and shall be enforceable by Buyer, New LLC
and Mezz, and
shall be guaranteed by GPLP pursuant to that certain Guaranty
of
Contract Obligations attached as Exhibit “N” to the Purchase Agreement.
|
-4-
| b. |
In
addition to the representations and warranties set forth
in Section 5.6 of
the
Purchase Agreement, Seller and New LLC hereby make the
following
representations
and warranties to Mezz, which representations and warranties
shall survive consummation of the New LLC Transaction for
a period
of one (1) year from the Closing Date, and which shall
be guaranteed
by GPLP pursuant to the form of Guaranty attached as Exhibit
“N” to the
Purchase Agreement:
|
i. New
LLC
is and shall continue to be a limited liability company duly
organized, validly existing and in good standing under the laws of
the
State
of
Delaware, and New LLC has and shall continue to have all requisite
power, authority and legal right to execute, deliver and perform
the terms of
this Amendment and the New LLC Transaction. Seller is and shall continue
to be
until the Closing Date the sole member of New LLC, and Seller owns
and shall
continue to own until the Closing Date all membership interests in
New
LLC.
ii. This
Amendment and all documents executed by Seller or New LLC
which
are to be delivered to Mezz at the New LLC Closing Date or the
Closing Date (a) are or at the time of the New LLC Closing Date and
the Closing
Date will be duly authorized, executed, and delivered by each person
comprising New LLC, (b) are or at the time of the New LLC Closing
Date and the Closing Date will be the legal, valid, and binding obligations
of
New LLC and (c) do not and at the time of the New LLC Closing Date
and the
Closing Date will not violate any provisions of New LLC’s
formation or governing documents or any provisions of any agreement
or judicial order to which New LLC (or any person comprising New
LLC) is a party
or to which New LLC or the New LLC Property is subject.
iii. New
LLC
(a) does not control, has not controlled and shall not control, directly
or
indirectly, and (b) does not own, has never otherwise owned and shall
not own,
directly or indirectly, any capital stock of or any other equity
interest in,
any individual, corporation, partnership, limited liability company,
firm, joint
venture, association, joint-stock company, trust,
unincorporated organization, or other entity, and New LLC is not
and
has
not otherwise been, directly or indirectly, a party to, member of
or participant
in any partnership, joint venture or similar business entity.
iv. Except
for the New LLC Property to be acquired pursuant hereto, New
LLC
has no assets and shall not have any other assets at the New LLC
Closing Date and the Closing Date. Except for (a) obligations under
the
Contracts and the Leases, other than obligations required to be performed
prior to the Closing Date, and (b) accounts payable in the ordinary
course of business, New LLC does not currently and shall not have
as
of the New LLC Closing Date and the Closing Date, any liabilities,
indebtedness, obligations, expenses, claims, deficiencies,
-5-
guaranties
or endorsements of any type, whether accrued, absolute, contingent,
matured, unmatured or otherwise.
v. New
LLC
does not have, and as of the New LLC Closing Date and the
Closing Date, shall not have, any liens for taxes upon any of New
LLC’s
assets, except taxes not yet due and payable. New LLC is not and
shall not be
the subject of an audit, action, suit, proceeding, claim, examination,
deficiency or assessment by any governmental entity, and no such
audit, action,
suit, proceeding, claim, examination, deficiency or assessment is
currently
pending or, to the best of Seller’s knowledge, is contemplated. New LLC is not,
and as of the New LLC Closing Date and the Closing Date, shall not
be,
responsible for any liabilities of Seller.
vi. There
are
not any, and as of the New LLC Closing Date and the Closing Date,
there shall
not be any, investigations, actions, suits or proceedings of any
nature pending
or, to the best of Seller’s knowledge, threatened against New LLC.
vii. New
LLC
does not have, and as of the New LLC Closing Date and the Closing
Date, shall
not have, any current, former or retired employees.
viii. Other
than pursuant to this Amendment, Seller has not granted or offered
and shall not
grant or offer to any person any ownership interest in New
LLC
and/or right of first refusal to any membership interests (or other
ownership interests) in New LLC.
ix. New
LLC:
(i) has not made and will not make a general assignment
for the benefit of creditors; (ii) has not filed any voluntary petition
or
suffered the filing of any involuntary petition by New LLC’s creditors,
and will not file any voluntary petition nor suffer the filing of
any
involuntary petition by New LLC’s creditors, under Title 11 of the U.S.
Code, as now constituted or hereafter amended, or under any other
applicable
federal or state bankruptcy law or other similar law; (iii) has not
suffered
and will not suffer the appointment of a receiver to take possession
of all, or substantially all, of New LLC’s assets; (iv) has not suffered
and will not suffer an attachment, execution or other judicial seizure
of all, or substantially all, of New LLC’s assets; or (v) has not submitted and
will not submit to any action indicating an inability to meet its
financial
obligations as they accrue.
5.
Failure
to Consummate the New LLC Transaction.
If
Seller fails to consummate the
New
LLC Transaction, Mezz shall have the right to enforce Buyer’s Remedies as set
forth in Section
6.2 or elsewhere in the Purchase Agreement, subject to the terms
and conditions
contained
therein. If Mezz fails to consummate the New LLC Transaction, Seller
shall have
the right
to
enforce Seller’s Remedies as set forth in Section 6.1 or elsewhere in the
Purchase Agreement,
subject to the terms and conditions contained therein.
-6-
6. Facsimile
Signatures; Counterparts.
This
Amendment may be executed by the electronic
exchange of copies hereof bearing the signatures of each of the parties.
This
Amendment
may be executed in several counterparts, each of which shall be deemed
an
original, and all such counterparts together shall constitute one
and the same
instrument.
7. Governing
Law.
The
validity, interpretation, construction, performance and enforcement
of this
Amendment and the rights and obligations of the parties hereunder
shall be
governed in all respects by the law of the State where the Property
is
located.
8. Effect
of Amendment.
Except
as amended herein, all terms and conditions of the Purchase Agreement
are and
remain unchanged and in full force and effect as therein written.
[End
of Text - Signatures on Following Page]
-7-
“SELLER”
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
Glimcher
Tampa, Inc.,
a
Delaware corporation,
General
Partner
By:___________________________
Xxx
X.
Xxxxx
Senior
Vice President
“BUYER”
XXXXXX
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
By:__________________________
Xxxxx
X.
Xxxxx
President
[Signatures
Continued on Next Page]
-8-
“NEW
LLC”
SOMEROCK
UNIVERSITY MALL OWNER, LLC,
a
Delaware limited liability company
By:
Glimcher
University Mall Limited Partnership,
a
Delaware limited partnership
Sole
Member
By:
Glimcher Tampa, Inc.,
a
Delaware corporation,
General
Partner
By:_____________________________
Xxx
X.
Xxxxx
Senior
Vice President
“MEZZ”
SOMEROCK
UNIVERSITY MALL MEZZ, LLC,
a
Delaware limited liability company
By:
Somerock
University Mall Holdings, LLC,
a
Delaware limited liability company
Sole
Member
By:
SCM University Mall Investors, LLC,
a
California limited liability company
Manager
By:
Xxxxxx Capital Management, LLC,
a
California limited liability company
By:_____________________________
Xxxxx
X.
Xxxxx
President
[Signatures
Continued on Next Page]
-9-
CONSENTED
AND AGREED TO BY:
“GPLP”
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
Glimcher Properties Corporation
a
Delaware corporation
its
sole
general partner
By:______________________________
Xxx
X.
Xxxxx
Senior
Vice President
-10-
EXHIBIT
AA
OWNER’S
TITLE POLICY
EXHIBIT
BB
ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made as of
the
___
day of,
2007,
by and between Glimcher University Mall Limited Partnership, a Delaware
limited partnership, having an office c/o Glimcher Properties Limited
Partnership, 000 Xxxx
Xxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 (“Assignor”) and Somerock University Mall Mezz,
LLC,
a
Delaware limited liability company, having an office at 0000 Xxxxxxxxx
Xxxxxx,
Xxxxx 000 Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000 (“Assignee”).
W
I T N E
S S E T H:
WHEREAS,
Assignor owns one hundred percent (100%) of the Membership Interest
(as defined
below) in Somerock University Mall Owner, LLC, a Delaware limited
liability
company (the “Company”).
WHEREAS,
Assignor has agreed to sell and assign to Assignee, and Assignee
has agreed
to
purchase and assume, all of Assignor’s right, title and interest in and to the
Membership Interest.
NOW,
THEREFORE, for valuable consideration in hand paid, the receipt and
sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1. Assignor
hereby assigns, conveys, transfers and sets over unto Assignee, all
right, title
and interest of Assignor in and to the Company, together with any
and all
rights, privileges, benefits,
obligations and liabilities appertaining thereto, including but not
limited to
all of Assignor’s
right, title and interest as the sole member of the Company in and
to the
profits, losses,
capital, cash flow, rentals, contract rights, cash, accounts, receivables,
escrows, claims, choses in action and other assets of the Company,
and (b) any
and all member loans made by Assignor
to the Company (collectively, the “Membership Interest”), reserving unto itself
no rights
or
interests therein whatsoever.
2. The
parties consent to this Assignment and intend this Assignment to
be an
absolute
and unconditional assignment of the Membership Interest.
3. Assignee
hereby (a) takes and accepts the foregoing assignment, (b) adopts
and agrees to
be bound by all of the terms, covenants, conditions and provisions
of the
Company’s operating agreement, a copy of which is attached hereto as Exhibit
“A”
and made a part hereof, and
(c)
assumes and agrees to observe, perform, pay, comply with and discharge
all of
the obligations
of the Company, as the sole member thereof, for all purposes, all
from and after
the date hereof, but not before, in the place and stead of
Assignor.
4. Assignor
warrants and represents to Assignee that: (a) Assignor owns one hundred
percent (100%) of the Membership Interest, (b) it has the full right,
power and
authority
5. Assignor
hereby agrees to execute and deliver promptly upon request of Assignee
such
further agreements or instruments as may be necessary to complete
the assignment
and transfer
of the Membership Interest to Assignee as contemplated hereby.
6. This
Agreement is executed by, and shall be binding upon and inure to
the benefit of,
the parties hereto and each of their respective successors and assigns.
None of
the provisions of this Agreement shall be for the benefit of or enforceable
by
any other person.
7. This
Agreement may be executed in any number of counterparts, and each
such
counterpart will for all purposes be deemed an original, and all
such
counterparts shall constitute one and the same instrument. The individuals
signing this Agreement on behalf of the parties hereto represent
and warrant
that they are duly authorized to do so.
8. This
Agreement shall be construed in accordance with and governed by the
internal
laws of the State of Delaware (without regard to principles of conflicts
of
laws).
[Signatures
appear on following page.]
-2-
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement
as
of the
__ day of 2007.
ASSIGNOR:
GLIMCHER
UNIVERSITY MALL LIMITED PARTNERSHIP,
a
Delaware limited partnership
By:
Glimcher
Tampa, Inc.,
a
Delaware corporation,
General
Partner
By:__________________________
Xxx
X.
Xxxxx
Senior
Vice President
ASSIGNEE:
SOMEROCK
UNIVERSITY MALL MEZZ, LLC,
a
Delaware limited liability company
By:
Somerock
University Mall Holdings, LLC,
a
Delaware limited liability company
Sole
Member
By:
Xxxxxx Investment Partners, LLC
a
California limited liability company
Manager
By:____________________________
Name:
Title:
-3-
EXHIBIT
A
OPERATING
AGREEMENT
