REAL PROPERTY PURCHASE AND SALE AGREEMENT
REAL PROPERTY
THIS REAL PROPERTY PURCHASE AND SALE
AGREEMENT (this “Agreement”) dated as of January
19, 2018 (the “Effective
Date”), is made by and between The State Media
Company, a South Carolina corporation (“Seller”), and Voltari Real Estate
Holding LLC, a Delaware limited liability company
(“Buyer”), with
reference to the following facts:
RECITALS
A.
Seller owns that
certain real property located in the City of Columbia, County of
Richland, State of South Carolina, commonly known as 1401 Shop
Road, bearing Tax Map Number R11209-02-12 and more particularly described in
Exhibit A attached
hereto and made a part hereof (the “Property”).
B.
On the terms and
conditions set forth in this Agreement, Buyer desires to purchase
the Property from Seller and Seller desires to sell the Property to
Buyer.
AGREEMENT
NOW
THEREFORE, for valuable consideration, receipt and sufficiency of
which is hereby acknowledged and agreed, Buyer and Seller hereby
agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 The
Property. Seller agrees to sell and convey the Property to
Buyer and Buyer agrees to acquire and purchase the Property from
Seller, on the terms and subject to the conditions set forth in
this Agreement. For purposes hereof, the “Property” shall be deemed to mean
and include (a) the land described in Exhibit A (the
“Land”),
together with all rights, easements and interests appurtenant
thereto, including, but not limited to, any streets or other public
ways adjacent to the Land and any data, water, or mineral rights
appurtenant to the Land which are owned by, or leased to, Seller;
(b) all improvements located on the Land (“Improvements”), including, but not
limited to the building(s) and structures commonly known as 1401
Shop Road, Columbia, South Carolina (the “Building”); (c) all, if any, (i)
development rights and entitlements and other intangible property
owned by Seller and used solely in connection with the Property,
but expressly excepting therefrom any and all trademarks,
tradenames or intellectual property of Seller and any other such
rights which are not used exclusively in connection with the
Building; and (ii) any permits or approvals pertaining exclusively
to the Land and/or the Improvements, in each case, to the extent
assignable (collectively, the “Intangibles”).
1.2
Lease. At the
Closing (as defined below), Buyer and The McClatchy Company, a
Delaware corporation and an affiliate of Seller
(“Tenant”) shall
enter into a lease in substantially the form attached hereto as
Exhibit B (the
“Lease”),
pursuant to which Tenant shall lease the Property back from Buyer
on terms and conditions more fully set forth therein.
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ARTICLE 2
PURCHASE PRICE
2.1 Amount.
The total purchase price for the Property shall be Seventeen
Million Dollars ($17,000,000.00) (the “Purchase Price”).
2.2 Deposit.
2.2.1 Deposit.
Within three (3) business days after the Effective Date, Buyer
shall deposit into Escrow with the Settlement Agent (as hereinafter
defined) on account of the Purchase Price the sum of Two Hundred
Fifty Thousand Dollars ($250,000.00) in immediately available funds
(the “Initial
Deposit”). Provided that Buyer has not previously
terminated this Agreement during the Review Period (as defined
below), then within three (3) business days following the
expiration of the Review Period, Buyer shall deposit into Escrow
with the Settlement Agent on account of the Purchase Price an
additional Five Hundred Thousand Dollars ($500,000.00) (the
“Additional
Deposit”), bringing the total of the Initial Deposit
and the Additional Deposit to Seven Hundred Fifty Thousand Dollars
($750,000.00). Except as otherwise set forth herein, upon delivery
of the Additional Deposit into Escrow, the Initial Deposit and the
Additional Deposit (individually and collectively referred to
herein as the “Deposit”), the entire Deposit
shall be nonrefundable to Buyer as set forth in Section 2.2.2
hereof.
2.2.2 Application
of Deposit. Except as otherwise set forth herein, the
Deposit and all interest thereon shall be nonrefundable to Buyer
unless one of the following shall occur (in which case the Deposit
shall be promptly returned to Buyer): (a) if Buyer shall timely
terminate this Agreement during the Review Period, or shall
otherwise terminate this Agreement as expressly permitted herein,
or, (b) if the Closing fails to occur and this Agreement is
terminated due to a default of Seller. Unless returned to Buyer as
set forth in this Section, the Deposit shall be credited to Seller
as part of the Purchase Price at the Closing or shall be paid to or
retained by Seller upon default by Buyer in accordance with the
provisions set forth in Section 10.1 hereof. In the event of a
controversy or dispute between Buyer and Seller regarding the
Deposit, the Settlement Agent shall retain the Deposit pending
receipt of mutual instructions from Buyer and Seller, or as
otherwise directed pursuant to the order of a court of competent
jurisdiction.
2.2.3 Investment
of Deposit. The Deposit, upon receipt by the Settlement
Agent, shall be invested in an interest-bearing money market or a
savings account with a national banking association or federally
chartered savings and loan association, with interest accruing to
the benefit of Buyer.
2.3 Payment.
The Purchase Price shall be payable as follows:
2.3.1 Delivery
of Deposit. At the Closing (as defined in Section 3.1)
on the Closing Date (as defined in Section 3.1), the
Settlement Agent shall credit to Buyer the Deposit and all interest
earned thereon.
2.3.2 Delivery
of Balance. At the Closing, on the Closing Date, Buyer shall
pay the balance of the Purchase Price to Seller in cash in
immediately available funds.
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ARTICLE 3
COMPLETION OF SALE
3.1 Place
and Date. The purchase and sale of the Property shall be
completed in accordance with Article 9 hereof (the
“Closing”). The
Closing shall occur by mail through an escrow (the
“Escrow”) with
First American Title (the “Settlement Agent”), whose address
is Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxxx, or at such other place as Seller and Buyer agree
in writing, on the basis of a “deed and money” escrow
closing. The Escrow shall be deemed open on the date Buyer delivers
the Initial Deposit to the Settlement Agent. Subject to the
conditions precedent described in Article 8 hereof, the
Closing shall occur not later than fifteen (15) days after the end
of the Review Period (as defined below), provided that in no event
shall the Closing occur later than March 16, 2018, unless extended
by Seller and Buyer in writing (the date on which the Closing
occurs being hereinafter sometimes referred to as the
“Closing Date”).
In the event there exists a failed condition to Buyer’s or
Seller’s obligation and Buyer and Seller do not agree to
extend the Closing Date, or such failed condition exists after
expiration of any such extension, then the party for whose benefit
such condition exists may waive the condition or terminate this
Agreement by written notice to the other party and to the
Settlement Agent. The Escrow shall be considered closed when the
Deed is recorded in the Official Records of Richland County, South
Carolina (“Official
Records”).
3.2 Escrow
Instructions. This Agreement shall constitute escrow
instructions to and for the benefit of the Settlement Agent to
facilitate the Closing. Prior to the Closing Date, Seller and Buyer
may each give any additional written escrow instructions
(“Supplemental Escrow
Instructions”) to the Settlement Agent which are
necessary for the Closing in accordance with this Agreement,
provided that any such Supplemental Escrow Instructions must be
consistent with the terms of this Agreement. In the event there is
a conflict between any such Supplemental Escrow Instructions and
the provisions of this Agreement, the provisions of this Agreement
shall control.
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ARTICLE 4
REVIEW OF THE PROPERTY
4.1
Studies Generally.
From the Effective Date to the Closing Date, Seller shall provide
Buyer and Buyer’s agents and representatives with access to
the Property to make such reasonable surveys, inspections, tests,
copies, verifications, and studies (“Studies”) as Buyer considers
reasonably necessary or desirable under the circumstances, which
Studies may include without limitation (a) inspections of and tests
of the Land and the Improvements, (b) environmental studies and
investigations of the Land and Improvements, (c) examination of
matters set forth in the Documents, (d) investigations with regard
to zoning, building code and other legal requirements, and (e) to
initiate contact with Seller or its designated representatives
regarding Seller’s business and use of the Property. In
addition, within five (5) business days after the Effective Date,
Seller shall deliver to Buyer, or otherwise cause to be uploaded
and available to Buyer through Seller’s or Seller’s
Broker’s FTP site, Dropbox site, Intralinks, or other
electronic document exchange portal and made available to Buyer for
access with appropriate and necessary passwords copies of all those
documents and materials relating to the Property that are described
in Exhibit C
attached hereto (collectively, the “Documents”). Seller shall have no
obligation to deliver any proprietary, confidential, or privileged
documents or materials. Buyer shall not damage or alter the
Property in any material respect as a result of its Studies and
shall otherwise conduct the same so as not to unreasonably
interfere with Seller’s business operations on the Property.
Any such Studies shall be made at Buyer’s sole cost and
expense. Buyer shall provide not less than one (1) business
day’s prior notice to Seller of any entry by Buyer and/or any
agent or contractor of Buyer, and Seller may require a
representative of Seller to be present at all times unless waived
in advance in writing. Buyer’s access shall be during normal
business hours and subject to Seller’s reasonable security
and safety requirements (provided advance notice of such
requirements has been provided by Seller to Buyer or Buyer’s
agents). Buyer shall promptly deliver to Seller upon request at no
cost to Seller copies and the results of any and all Studies made
by or at the request of the Buyer. Buyer acknowledges and agrees
that any documents delivered to Buyer pursuant to this Agreement or
otherwise to facilitate Buyer’s Studies shall be delivered to
Buyer without any representations or warranties by Seller with the
exception of the representations expressly set forth in Section 6.1
hereof. Buyer expressly agrees that (x) any documents and
information furnished by Seller to Buyer are for informational
purposes only and that Seller makes no representation or warranty,
express or implied, including without limitation with respect to
the qualifications of the parties having prepared any such
materials, as to their accuracy or the completeness of their
contents, or as to Buyer’s right to rely on any such
materials or the information contained therein; and (y) Buyer will
not rely on such documents and information and will conduct its own
due diligence and Studies relating to the Property and to all
matters referred to in such documents and information. The use of
any such documents or information shall be at Buyer’s sole
risk, and Buyer shall defend and indemnify Seller from and against
any and all suits, claims, damages, costs, expenses and liabilities
asserted against or incurred by Seller as a result of Buyer’s
knowing and willful further dissemination of any such materials, in
whole or in part, to an unauthorized third party, which obligations
shall survive Closing or any earlier termination of this Agreement
for a period of one year.
4.2 Intrusive
Studies. Buyer plans to undertake a Phase II Environmental
Site Assessment on or about the Property which involves intrusion
to the subsurface of the Property and the use of sampling,
monitoring, and other associated equipment. Buyer shall give Seller
advance written notice describing the scope and schedule of the
work or activities involved in the Studies and the identity of the
contractor. After the completion of the work or Studies, Buyer
shall restore the Property to a condition substantially similar to
that existing at the time immediately prior to the work or Studies.
In any case that Buyer or its representatives enters the Property
for the purpose of conducting Studies, whether or not said Studies
are intrusive as noted above, prior to any entry on to the
Property, Buyer must deliver to Seller proof of commercial general
liability insurance of at least Two Million Dollars ($2,000,000.00)
covering any and all parties entering the Property and listing
Seller as additional insured.
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4.3 Delivery
to Seller. In the event Buyer shall terminate this Agreement
based upon the results of its Studies or for any reason (other than
a default by Seller) fails to purchase the Property, then upon said
termination or upon said failure to purchase, Buyer shall
immediately cause to be destroyed or delivered to Seller copies of
all documents, reports, written materials and Studies which are in
the possession of Buyer (or any agents or other parties which Buyer
controls) and which relate in any way to the Property or to its
quality, condition, use, development or developability
(collectively, the “Returned
Materials”). Said Returned Materials shall be
destroyed or delivered to Seller without cost and expense to Seller
and as additional consideration to Seller for entering into this
Agreement. The provisions of this Section 4.3 shall survive the
termination of this Agreement.
4.4 Survey.
Without limiting the generality of the foregoing, promptly after
the Effective Date, Buyer, at Buyer’s expense, shall cause to
be prepared by a licensed land surveyor or a registered civil
engineer a current ALTA as-built survey of the Property (including
Improvements) (the “Survey”), certified by such
surveyor or engineer to the Title Company and Buyer, and in form
reasonably satisfactory to the Title Company and
Buyer.
ARTICLE 5
TITLE TO THE PROPERTY
5.1 Deed.
On the Closing Date, Seller shall convey fee simple absolute title
to the Property to Buyer by means of a duly executed and
acknowledged limited warranty deed (the “Deed”) in the form of Exhibit D attached hereto,
reciting that title is subject to the Permitted Exceptions (as
defined below).
5.2
Permitted
Exceptions.
5.2.1 Title
Generally. Buyer shall order from the Settlement Agent,
within three (3) business days after the Effective Date, one copy
of a preliminary title report (the “Title Report”) issued by the
Settlement Agent covering the Property and one copy of each
underlying recorded document shown as an exception in such Title
Report (the Title Report and said underlying documents being
referred to herein as the “Title Documents,” and collectively
with the Survey sometimes referred to herein as the
“Title
Evidence”). Buyer’s title to the Property shall
be insured by First American Title Insurance Company (the
“Title Company”)
by means of an owner’s title insurance policy on ALTA Policy
Form B-2006, with extended form coverage in the full amount of the
Purchase Price (the “Title
Policy”). The Property shall be sold and is to be
conveyed subject to (a) the “Standard Exceptions” and
provisions contained in the form of title insurance commitment and
title insurance policy issued by the Title Company and such other
liens, claims, municipal betterments, encumbrances, exceptions and
matters as any reputable title insurance company authorized to do
business in the State of South Carolina shall be willing to delete
as an exception to coverage, (b) the lien of real estate taxes,
assessments, water rates or meter charges and sewer rents not yet
due and payable, (c) title and survey matters accepted or deemed to
have been accepted by Buyer in accordance with this Agreement, (d)
matters set forth on Exhibit E attached hereto, and
(e) any additional off-record matters accepted by Buyer in writing
(all the matters set forth in this Section 5.2.1 being collectively
referred to as the “Permitted
Exceptions”).
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5.2.2 Title
Review. Buyer shall have until
the date that is seven (7) business days prior to the expiration of
the Review Period to notify Seller in writing (any such
notice, a “Defect
Notice”) of those
exceptions or matters indicated on the Title Evidence (such
exceptions to title being referred to as the
“Disclosed
Exceptions”) of those
exceptions that Buyer disapproves. If Buyer fails to deliver
written notice to Seller of any exceptions or matters indicated on
the Title Evidence disapproved by Buyer prior to said date, then
all such Disclosed Exceptions shall be deemed approved by Buyer.
Any exceptions indicated on the Title Evidence and approved (or
deemed approved) by Buyer shall constitute Permitted Exceptions in
connection with the issuance of the Title Policy. Any exceptions to
title (other than the Permitted Exceptions and the Disclosed
Exceptions) that arise between the effective date of the Title
Commitment or the Survey, as the case may be, and the Closing are
referred to herein as “New Defects.” Buyer shall have five (5)
business days after its receipt of written notice or updated title
evidence reflecting any New Defects within which to notify Seller
in writing of any such New Defects to which Buyer reasonably
objects on the grounds that such New Defects either (x) render
title unmarketable or uninsurable at regular rates or (y)
materially and adversely affect Buyer’s intended use of the
Property or the value of the Property. Seller shall be obligated to
cure and remove (or procure title insurance over) all of the
following classes of New Defects and Disclosed Exceptions, as and
to the extent that they affect the Property (“Mandatory Cure Items”), if any:
(a) the liens of any mortgage, trust
deed or deed of trust evidencing an indebtedness owed by Seller;
(b) tax liens for delinquent ad valorem real estate taxes; (c)
mechanics liens pursuant to a written agreement either between (x)
the claimant (the “Contract
Claimant”) and Seller or
its employees, officers or managing agents (the
“Seller
Parties”) or (y) the
Contract Claimant and any other contractor, materialman or supplier
with which Seller or the Seller Parties have a written agreement;
and (d) broker’s liens pursuant to a written agreement
between the broker and Seller or any Seller Parties.
If Buyer notifies Seller of its
disapproval of any exceptions or matters indicated on the Title
Evidence, then Seller shall have three (3) business days after such
notice to advise Buyer in writing of any such exceptions which
Seller is unable or unwilling to remove at the close of Escrow (the
“Seller’s Response
Notice”), indicating
that Seller has elected to cure and remove any such matters (any
such matters that Seller elects to cure and remove,
“Seller Cure
Items”) not later than
the Closing. Seller shall have until Closing to cure and remove (or
procure title insurance over) any Seller Cure Items. If Seller
fails to deliver Seller’s Response Notice within such three
(3) business day period, Seller shall be deemed to be unable or
unwilling to remove the disapproved exceptions or matters except as
expressly required in this section. If Seller is (or is deemed to
be) unable or unwilling to remove all such disapproved exceptions
or matters, then Buyer shall have the right, by written notice to
Seller and Settlement Agent delivered not later than the expiration
of the Review Period, to terminate this Agreement not later
than the date that is five (5) business days after
Buyer’s receipt of a Seller’s Response
Notice, in which event
the Deposit shall be immediately returned to Buyer ,and neither
party shall have any further liabilities or obligations pursuant to
this Agreement except those liabilities or obligations that
expressly survive termination of this Agreement. Failure of Buyer to so terminate this Agreement
shall be deemed Buyer’s waiver of its previous title
objections and all such disapproved exceptions or matters shall be
deemed to be Permitted Exceptions. If, on or prior to Closing, Seller
fails to cure and remove (i) any Mandatory Cure Item, or (ii) each
Disclosed Exception or New Defect, as the case may be, that Seller
agreed to cure (pursuant to a Seller’s Response Notice),
Buyer may terminate this Agreement by written notice to Seller on
or prior to Closing, in which event the Deposit shall immediately
be returned to Buyer.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Seller.
Buyer acknowledges that Buyer is acquiring the Property
“AS-IS, WHERE-IS, IN ITS
CURRENT CONDITION, WITH ALL FAULTS” and in reliance
upon its own Studies, investigations and due diligence. No person
acting on behalf of Seller is authorized to make (and by execution
hereof, Buyer acknowledges and agrees that, with the exception of
those representations and warranties contained in this
Section 6.1 or otherwise set forth herein, Seller has not
made, does not make and specifically negates and disclaims) any
representations or warranties of any kind or character whatsoever,
whether express or implied, oral or written, past, present or
future, with regard to the Property, including without limitation
(a) its value; (b) its nature, condition or quality (including
without limitation, its water, soil and geology); (c) its
compliance with any laws, rules, ordinances or regulations of any
applicable governmental authority or body; (d) its suitability for
activities which Buyer may desire to conduct thereon; (e) its
suitability for the development, remodeling, or improvements
desired by Buyer or the ability of Buyer to develop, remodel or
improve the Property; (f) the income to be derived from the
Property; (g) the habitability, merchantability, profitability or
fitness for a particular purpose of the Property; (h) the
environmental condition of the Property; and (i) the manner,
quality, state of repair or lack of repair of the Property. As used
in this Section 6.1, the “best knowledge” of
Seller shall mean the present actual knowledge (excluding what is
exclusively constructive knowledge or receipt of constructive
notice) of Xxxxxxx Xxxx, Seller’s regional Vice President of
Production, who is directly familiar with the Property and
knowledgeable about the matters related thereto and set forth
herein, as of the date of this Agreement, without any duty or
obligation of investigation or inquiry. For avoidance of doubt, Xx.
Xxxx shall in no event be personally liable hereunder,
Buyer’s sole recourse being to Seller. With the foregoing
limitations, and except as set forth on Exhibit F attached hereto (the
“Warranty
Exceptions”), Seller represents and warrants to Buyer
as of the date of this Agreement as follows:
6.1.1 Documents.
To the best knowledge of Seller, Seller has delivered to Buyer true
and complete copies of the Documents in its possession or
reasonable control.
6.1.2
Environmental
Matters. To Seller's best knowledge and except as may be
disclosed in the Documents, Seller has not received a written
notice, request for information, claim or demand from any
governmental authorities or any third party alleging a violation of
or liability under any law pertaining to Hazardous Materials, the
protection of public health or safety, pollution or otherwise
pertaining to the environment (“Environmental Law”) on, at, under
or migrating to or from the Property. There are no claims pending
or, to the best knowledge of Seller, threatened against Seller or
against the Property or operations thereon under any Environmental
Law. Seller is not subject to any order or other directive of a
governmental authority with respect to matters subject to
regulation under any Environmental Law. Except as expressly
disclosed in this Agreement, there are no other underground storage
tanks currently located at, on, in or beneath the Property. As used
in this Agreement, “Hazardous
Materials” shall mean any asbestos, flammable
substances, explosives, radioactive materials, mold, PCB laden oil,
hazardous waste, pollutants, contaminates, toxic substances,
pollution or related materials specified as such in, or regulated
under any federal, state or local laws, ordinances, rules,
regulations or policies governing use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of such materials but excluding office supplies, cleaning
materials, personal grooming items or other items in quantities
that are used or stored in similar buildings or spaces, and sold
for consumer or commercial use and typically used in other similar
buildings or space.
6.1.3 Compliance
with Laws and Codes. Seller has not received any written
notice advising or alleging that the Property (including the
Improvements), and the use and operation thereof, are not in
compliance with all applicable municipal and other governmental
laws, ordinances, rules, regulations, codes (including
Environmental Laws), licenses, permits and
authorizations.
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6.1.4 Litigation.
There are no pending, or, to the best knowledge of Seller,
threatened, judicial, municipal or administrative proceedings
affecting the Property, or in which Seller is or will be a party by
reason of Seller’s ownership or operation of the Property or
any portion thereof, including, without limitation, proceedings for
or involving collections, condemnation, eminent domain, alleged
building code or environmental or zoning violations, or personal
injuries or property damage alleged to have occurred on the
Property or by reason of the condition, use of, or operations on,
the Property. No attachments, execution proceedings, assignments
for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending, or, to
Seller’s actual knowledge, threatened, against Seller, nor
are any of such proceedings contemplated by Seller.
6.1.5 Re-Zoning.
Seller is not a party to, nor does Seller have any actual knowledge
of, any threatened proceeding for the rezoning of the Property or
any portion thereof, or the taking of any other action by
governmental authorities that would have a material adverse impact
on the value of the Property or use thereof.
6.1.6 Authority.
Seller is a corporation, duly incorporated and organized and
validly existing and in good standing under the laws of the State
of South Carolina. Seller has full power and authority to enter
into this Agreement and to perform this Agreement. The execution,
delivery and performance of this Agreement by Seller have been duly
and validly authorized by all necessary corporate action on the
part of Seller and all required consents or approvals by the board
of directors, stockholders, or officers of Seller have been duly
obtained, and Seller’s execution of this Agreement shall not
violate any other agreement. This Agreement is a legal, valid and
binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws from time to time in
effect which affect the rights of creditors generally or by
limitations upon the availability of equitable
remedies.
6.1.7
Real Estate Taxes.
There is not now pending, and Seller agrees that it will not,
without the prior written consent of Buyer (which consent will not
be unreasonably withheld or delayed), institute prior to the
Closing Date, any proceeding or application for a reduction in the
real estate tax assessment of the Property or any other relief for
any tax year.
6.1.8
Patriot Act. Neither Seller nor
any person, group, entity or nation that Seller is acting, directly
or indirectly for, or on behalf of, is named by any Executive Order
(including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism) or the United States
Treasury Department as a terrorist, “Specially Designated
National and Blocked Person,” or is otherwise a banned or
blocked person, group, entity, or nation pursuant to any law that
is enforced or administered by the Office of Foreign Assets
Control, and Seller is not engaging in the transaction contemplated
under this Agreement, directly or indirectly, on behalf of, or
instigating or facilitating such transaction, directly or
indirectly, on behalf of, any such person, group, entity or nation.
Seller is not engaging in the transaction contemplated under this
Agreement, directly or indirectly, in violation of any laws
relating to drug trafficking, money laundering or predicate crimes
to money laundering. None of the funds of Seller have been or will
be derived from any unlawful activity with the result that the
investment of direct or indirect equity owners in Seller is
prohibited by law or that the transaction contemplated under this
Agreement is or will be in violation of law. Seller has and will
continue to implement procedures, and has consistently and will
continue to consistently apply those procedures, to ensure the
foregoing representations and warranties remain true and correct at
all times prior to Closing.
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6.1.9 No
Misrepresentation. No representation or warranty by Seller
in this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state any material fact
necessary to make such representations and warranties not
misleading.
6.1.10 United
States Person. Seller is a
“United States Person” within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and
shall execute and deliver an “Entity Transferor”
certification at Closing.
6.1.11 Condemnation.
Seller has not received any written notice advising it of any
pending or threatened condemnation or other governmental taking
proceedings affecting all or any part of the
Property.
6.2 Buyer.
The representations and warranties of Buyer in this Section 6.2 are
a material inducement for Seller to enter into this Agreement.
Seller would not sell the Property to Buyer without such
representations and warranties of Buyer. Buyer represents and
warrants to Seller that the following matters are true as of the
Effective Date and the Closing Date:
6.2.1 Power
and Authority. Buyer is a limited liability company, duly
organized and validly existing and in good standing under the laws
of the State of Delaware. Buyer has full power and authority to
enter into this Agreement and to perform this Agreement. The
execution, delivery and performance of this Agreement by Buyer have
been duly and validly authorized by all necessary company action on
the part of Buyer and all required consents or approvals by the
members, managers and/or officers of Buyer have been duly obtained.
This Agreement is a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other
similar laws from time to time in effect which affect the rights of
creditors generally or by limitations upon the availability of
equitable remedies.
6.2.2 No
Misrepresentation. No representation or warranty by Buyer in
this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact
necessary to make such representations and warranties not
misleading.
6.2.3 Studies/Diligence.
Buyer is a sophisticated buyer with experience in purchasing and
developing real properties similar to the Property. Buyer will
independently inspect the Property, and Buyer has entered into this
Agreement based upon its experience, rights and intentions to make
Studies and inspections.
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6.2.4 Patriot
Act. Neither Buyer nor any person, group, entity or nation
that Buyer is acting, directly or indirectly for, or on behalf of,
is named by any Executive Order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism) or
the United States Treasury Department as a terrorist,
“Specially Designated National and Blocked Person,” or
is otherwise a banned or blocked person, group, entity, or nation
pursuant to any law that is enforced or administered by the Office
of Foreign Assets Control, and Buyer is not engaging in the
transaction contemplated under this Agreement, directly or
indirectly, on behalf of, or instigating or facilitating such
transaction, directly or indirectly, on behalf of, any such person,
group, entity or nation. Buyer is not engaging in the transaction
contemplated under this Agreement, directly or indirectly, in
violation of any laws relating to drug trafficking, money
laundering or predicate crimes to money laundering.
6.2.5 No
Pending Actions. To the best knowledge of Buyer, there are
no actions, proceedings or investigations of any kind pending or
threatened against or involving the Buyer or its principals or
affiliates, and there are no valid bases for any such actions,
proceedings or investigations.
6.2.6 No
Conflict. Neither the execution, delivery or performance by
Buyer of this Agreement, nor compliance with the terms and
provisions hereof, conflicts or will conflict with or will result
in a breach or violation of any order, writ, injunction or decree
of any court or governmental authority against Buyer or its
principals or affiliates, or any indenture, mortgage or contract or
other agreement or instrument to which Buyer or its principals or
affiliates is a party or by which it or any of its properties is
bound, or constitutes or will constitute a default
thereunder.
6.2.7 No
Bankruptcy. Within seven (7) years prior to the Effective
Date, neither Buyer, not any principal in or affiliate of Buyer has
done any of the following: (a) filed a voluntary or involuntary
petition under the Federal Bankruptcy Law, (b) been adjudicated as
insolvent or bankrupt, (c) made an assignment of property for the
benefit of creditors, (d) suffered the appointment of a receiver,
trustee, or conservator of any substantial portion of assets, or
(e) suffered the seizure by a sheriff, receiver, trustee, or
conservator of any substantial portion of assets.
ARTICLE 7
COVENANTS
7.1
Seller. Seller covenants and
agrees with Buyer as follows:
7.1.1 Further
Encumbrances. Between the date of this Agreement and the
Closing Date (or other termination of this Agreement), Seller (a)
shall not execute any new lease affecting the Property or any part
thereof after the Closing (other than the Lease) without the prior
written consent of the Buyer, which shall not be unreasonably
withheld; and (b) shall not sell, convey, grant, assign, or
otherwise transfer the Property or any interest therein which would
survive the Closing and which would materially and adversely affect
the use of the Property for Buyer’s intended purpose without
the prior written consent of Buyer, which shall not be unreasonably
withheld.
10
7.1.2 Claims
for Breach of Warranties. If on or before the Closing Date,
Seller becomes aware that any representation made by Buyer in this
Agreement is inaccurate in any material respect, Seller shall
immediately send written notice thereof to Buyer. If Buyer does not
take such action as is reasonably necessary to cause such
representation to be accurate in all material respects within ten
(10) business days after Buyer’s receipt of Seller’s
written notice (it being agreed that the Closing Date shall be
extended to permit Buyer to do so but that Buyer shall have no
obligation to do so), Seller shall have the right to either (a)
terminate this Agreement by written notice to Buyer, and Buyer
shall have no obligation or liability to Seller for any damage that
Seller may have sustained by reason of such misrepresentation, or
(b) waive objection to such misrepresentation and close this
transaction without (i) reduction of the Purchase Price, (ii)
credit or allowance of any kind or (iii) any claim or right of
action against Buyer for damages or otherwise in connection
therewith, all of which are deemed waived. Buyer shall have no
liability to Seller for any termination of this Agreement pursuant
to this Section 7.1.2 which occurs prior to the end of the Review
Period, and in the event of such a termination prior to the end of
the Review Period, Seller shall immediately direct the Escrow Agent
to return the Deposit to Buyer, and upon Buyer’s receipt of
the Deposit, this Agreement shall be null and void and neither
party shall have any liability to the other. Buyer shall have no
liability to Seller for any misrepresentation or breach of warranty
of Buyer nor shall Seller’s performance hereunder be excused
unless all of the following are true: (x) written notice containing
a description of the specific nature of such breach shall have been
given by Seller to Buyer (y) the breach in question does not result
from or is based on a condition, state of facts or other matter
which was known to Seller prior to the end of the Review Period,
and (z) such misrepresentation has not been waived pursuant to this
Section 7.1.2. The provisions of this section 7.1.2 shall survive
the Closing.
7.2 Buyer.
Buyer covenants and agrees with Seller as follows:
7.2.1 Indemnity.
Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, judgments, awards,
losses, damages, costs and expenses (including, without limitation,
reasonable attorneys’ fees, costs of expert witnesses, court
costs, and other expenses of litigation) that may be suffered or
incurred by Seller as a result of (a) Buyer’s gross
negligence or willful misconduct, or (b) arising from or
related to any bodily injury, property damage or mechanics lien
caused by Buyer or its representatives in connection with the
access provided or the Studies made pursuant to Section 4.1
hereof. The foregoing indemnity of Buyer shall survive the Closing
and any earlier termination of this Agreement.
11
7.2.2 Claims
for Breach of Warranties. If on or before the Closing Date,
Buyer becomes aware that any representation made by Seller in this
Agreement is inaccurate in any material respect, Buyer shall send
written notice thereof to Seller. If Seller does not take such
action as is reasonably necessary to cause such representation to
be accurate in all material respects within ten (10) business days
after Seller’s receipt of Buyer’s written notice (it
being agreed that the Closing Date shall be extended to permit
Seller to do so but that Seller shall have no obligation to do so),
Buyer shall have the right to either (a) terminate this Agreement
by written notice to Seller, in which case the Deposit shall
immediately be returned to Buyer, and Seller shall have no
obligation or liability to Buyer for any damage that Buyer may have
sustained by reason of such misrepresentation, except in the event
of any (i) fraud, or (ii) any knowing or intentional
misrepresentation made by Seller to intentionally deceive Buyer;
(b) waive objection to such misrepresentation and close this
transaction without (i) reduction of the Purchase Price, (ii)
credit or allowance of any kind or (iii) any claim or right of
action against Seller for damages or otherwise in connection
therewith, all of which are deemed waived. Seller shall have no
liability to Buyer for any misrepresentation or breach of warranty
of Seller nor shall Buyer’s performance hereunder be excused
unless all of the following are true: (x) written notice containing
a description of the specific nature of such breach shall have been
given by Buyer to Seller prior to the first anniversary of the
Closing Date, and an action shall have been commenced by Buyer
against Seller within such period, (y) the breach in question does
not result from or is based on a condition, state of facts or other
matter which was known to Buyer prior to the Closing, and (z) such
misrepresentation has not been waived pursuant to this Section
7.2.2. The provisions of this section 7.2.2 shall survive the
Closing.
7.2.3 Contracts.
Seller shall not enter into any new contract with respect to the
ownership and operation of the Property that will survive the
Closing, or that would otherwise materially affect the use,
operation or enjoyment of the Property after Closing, without
Buyer’s prior written approval (which approval shall not be
unreasonably withheld).
7.2.4 Operation
of Property. From and after the Effective Date and through
and including the Closing Date, Seller shall operate and manage the
Property in substantially the same manner in which it is being
operated as of the Effective Date, maintaining present services and
existing insurance (or reasonably similar coverage), and shall
maintain the Property in substantially its same repair and working
order. Except as otherwise specifically provided herein, at
Closing, Seller shall deliver the Property in substantially the
same condition as exists on the Effective Date, reasonable wear and
tear excepted and subject to Section 11.14 hereof.
7.2.5 OFAC.
Buyer shall cooperate with Seller and the Settlement Agent in
complying with Executive Order No. 13224, 66 Fed Reg. 49079
(September 25, 2001) and other similar requirements contained in
the rules and regulations of the Office of Foreign Asset Control
(“OFAC”).
12
7.2.6 Release.
EXCEPT TO THE EXTENT OF SELLER'S EXPRESS REPRESENTATIONS,
WARRANTIES AND COVENANTS CONTAINED IN THIS AGREEMENT (BUT SUBJECT
TO THE REMEDIES AND LIMITATIONS APPLICABLE FOR ANY BREACH THEREOF
HEREUNDER), BUYER, OR ANYONE CLAIMING BY, THROUGH OR UNDER BUYER,
HEREBY FOREVER AND FULLY DISCHARGES AND RELEASES SELLER, ITS
MANAGERS, MEMBERS, PARTNERS, EMPLOYEES, OFFICERS, DIRECTORS,
SHAREHOLDERS, AFFILIATES, REPRESENTATIVES, CONSULTANTS AND AGENTS
(COLLECTIVELY, THE “SELLER
RELEASEES”) FROM, AND IRREVOCABLY WAIVES ITS RIGHT TO
MAINTAIN ANY AND ALL CLAIMS AND CAUSES OF ACTION THAT IT OR THEY
MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER RELEASEES FOR ANY
COST, LOSS, LIABILITY, DAMAGE (OF ANY NATURE WHATSOEVER), EXPENSE,
DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO ANY
DEFECTS, ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING THE
PROPERTY (COLLECTIVELY, “CLAIMS”), WHETHER DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN THAT MAY ARISE
ON ACCOUNT OF, OR IN ANY WAY BE CONNECTED WITH THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE PHYSICAL, ENVIRONMENTAL AND
STRUCTURAL CONDITION OF THE PROPERTY, OR ANY LAW OR REGULATION
APPLICABLE THERETO. EXCEPT TO THE EXTENT OF SELLER'S EXPRESS
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THIS
AGREEMENT (BUT SUBJECT TO THE REMEDIES AND LIMITATIONS APPLICABLE
FOR ANY BREACH THEREOF HEREUNDER), BUYER HEREBY WAIVES ANY CLAIM OR
MATTER (REGARDLESS OF WHEN IT FIRST APPEARED OR APPEARS) RELATING
TO OR ARISING FROM THE PRESENCE OF ANY ENVIRONMENTAL CONTAMINATION
OR OTHER CONDITIONS, OR THE USE, PRESENCE, STORAGE, RELEASE,
DISCHARGE, OR MIGRATION OF HAZARDOUS MATERIALS ON, IN, FROM, UNDER
AND/OR AROUND THE PROPERTY REGARDLESS OF WHEN SUCH HAZARDOUS
MATERIALS WERE FIRST INTRODUCED ON, IN, FROM UNDER AND/OR ABOUT THE
PROPERTY, AND BUYER HEREBY WAIVES AND AGREES NOT TO COMMENCE ANY
ACTION, LEGAL OR EQUITABLE PROCEEDING, CAUSE OF ACTION OR SUITS IN
LAW OR EQUITY, OF WHATEVER KIND OR NATURE, INCLUDING, BUT NOT
LIMITED TO, A PRIVATE RIGHT OF ACTION UNDER THE FEDERAL CERCLA, 42
U.S.C. SECTIONS 9601 ET SEQ., AND/OR OTHER SIMILAR FEDERAL, STATE,
FOREIGN AND LOCAL LAWS (AS SUCH LAWS MAY BE AMENDED, SUPPLEMENTED
OR REPLACED FROM TIME TO TIME), DIRECTLY OR INDIRECTLY, AGAINST
SELLER RELEASEES OR ANY OF THEM IN CONNECTION WITH ANY OF THE
CLAIMS DESCRIBED IN THIS SECTION 7.2.6 FOR MATTERS ARISING PRIOR TO
THE CLOSING DATE AND NOT IN CONFLICT WITH TENANT'S OBLIGATIONS
PURSANT TO THE PROVISIONS OF THE LEASE. 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 INTENDS TO RELEASE, DISCHARGE AND
ACQUIT SELLER RELEASEES FROM ANY AND ALL SUCH CLAIMS (OTHER THAN
CLAIMS ARISING PURSUANT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT
OR SELLER'S EXPRESS OBLIGATIONS, IF ANY, UNDER THE CLOSING
DOCUMENTS) WHICH RELEASE, DISCHARGE AND ACQUITTAL IS INCLUDED AS A
MATERIAL PORTION OF THE CONSIDERATION GIVEN TO SELLER BY BUYER IN
EXCHANGE FOR SELLER'S PERFORMANCE HEREUNDER. THE PROVISIONS OF THIS
SECTION 7.2.6 SHALL SURVIVE THE CLOSING AND DELIVERY OF THE DEED TO
BUYER AND ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN THE
EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT WHICH
SERVIVE CLOSING AND THE OBLIGATIONS OF THE TENANT PURSUANT TO THE
LEASE, THE TERMS OF THE LEASE SHALL CONTROL.
|
Initials:
__________/s/
PK____________
Buyer
|
Initials:
______/s/
BM_______________
Seller
|
13
ARTICLE 8
CONDITIONS PRECEDENT
8.1 Seller.
The obligations of Seller under this Agreement to consummate the
transactions contemplated herein and convey the Property to Buyer
are subject to satisfaction of all of the conditions set forth in
this Section 8.1 on or before the Closing Date. Seller may
waive any or all of such conditions in whole or in part but any
such waiver shall be effective only if made in writing. No such
waiver shall constitute a waiver by Seller of any of its rights or
remedies if Buyer defaults in the performance of any covenant or
agreement to be performed by Buyer under this Agreement or if Buyer
breaches any representation or warranty made by Buyer in this
Agreement. If any condition set forth in this Section 8.1 is
not fully satisfied or waived in writing by Seller within the time
indicated, then Seller shall be released from all obligations to
Buyer under this Agreement. If Seller fails to notify Buyer of
Seller’s disapproval of any items requiring Seller’s
approval within the time period specified below, then Seller shall
be deemed to have approved such items.
8.1.1 No
Default. On the Closing Date, Buyer shall not be in default
in the performance of any covenant or agreement to be performed by
Buyer under this Agreement.
8.1.2 Representations
and Warranties True and Correct. On the Closing Date, all
representations and warranties made by Buyer in this Agreement
shall be true and correct in all material respects as if made on
and as of the Closing Date.
8.1.3 Lease.
On or before the Closing Date, Buyer and Seller shall have agreed
upon the final form of the Lease, which shall be substantially in
the form attached hereto, and all related documents and Buyer shall
have delivered into Escrow its executed counterpart of the Lease
and any such related documents.
8.1.4 No
Contest. On the Closing Date, no suit, action,
investigation, inquiry or other proceeding by any governmental body
or other person or any legal or administrative proceeding shall
have been instituted against Buyer or Seller which challenges the
validity or legality of the transactions contemplated by this
Agreement.
8.1.5 Delivery
of Documents. On or before the Closing Date, Buyer shall
have delivered into the Escrow each of the items to be delivered by
Buyer pursuant to Section 0.
8.2 Buyer.
The obligations of Buyer under this Agreement to consummate the
transactions contemplated herein, purchase the Property and accept
title from Seller are subject to satisfaction of all of the
conditions set forth in this Section 8.2 on or before the
Closing Date. Buyer may waive any or all of such conditions in
whole or in part but any such waiver shall be effective only if
made in writing. No such waiver shall constitute a waiver by Buyer
of any of its rights or remedies if Seller defaults in the
performance of any covenant or agreement to be performed by Seller
under this Agreement or if Seller breaches any representation or
warranty made by Seller in this Agreement. If any condition set
forth in this Section 8.2 is not fully satisfied or waived in
writing by Buyer, then Buyer shall be released from all obligations
to Seller under this Agreement. Except as expressly set forth
herein, if Buyer fails to notify Seller of Buyer’s
disapproval of any items requiring Buyer’s approval within
the time period specified below, then Buyer shall be deemed to have
approved such items.
14
8.2.1
Review Period. On
or within forty (40) calendar days after the Effective Date of this
Agreement (the “Review
Period”), Buyer shall have accepted and approved, in
Buyer’s sole discretion, the Property and the results of any
and all Studies with respect to the Property as Buyer may elect to
make or obtain, including without limitation Studies regarding or
concerning zoning, building codes, design review standards, and
other governmental regulations; architectural, mechanical, building
systems, and structural inspections; engineering tests;
availability of water and utilities; soils, seismic and geologic
condition; physical and environmental condition; entitlements;
ability to develop, improve or remodel the Property; marketing and
economic studies; and review of contracts and documents concerning
the Property. Buyer, in its sole and exclusive discretion, may
terminate this Agreement, for any or no reason, whatsoever, at any
time, prior to 5:00 p.m. on the last day of the Review Period. The
failure of Buyer to terminate this Agreement in writing prior the
expiration of the Review Period (as extended, if applicable) shall
irrevocably be deemed to constitute Buyer’s (a) unconditional
approval of its Studies and the condition of the Property, (b)
election to close its acquisition of the Property subject to
satisfaction of the other conditions set forth in this Section 8.2,
and (c) agreement that the Deposit is nonrefundable to Buyer except
as otherwise noted in Section 2.2.2 hereof. The cost of all such
inspections, tests and Studies shall be borne exclusively by
Buyer.
8.2.2 Physical
Condition. Subject to Section 7.2.4, the physical condition
of the Land and Improvements shall be substantially the same on the
Closing Date as on the date that the Review Period expires (the
“Review Period Expiration
Date”), reasonable wear and tear
excepted,
8.2.3 No
Contest. On the Closing Date, no suit, action,
investigation, inquiry or other proceeding by any governmental body
or other person or any legal or administrative proceeding shall
have been instituted or threatened against Buyer, Seller or the
Property or any part thereof which challenges the validity or
legality of the transactions contemplated by this
Agreement.
8.2.4 Representations
and Warranties True and Correct. On the Closing Date, all
representations and warranties made by Seller in this Agreement
shall be true and correct in all material respects as if made on
and as of the Closing Date.
8.2.5 Title
Policy. At Closing, the Title Company be unconditionally
committed to issue the Title Policy to Buyer insuring Buyer as the
fee simple owner of the Land and the Improvements, subject only to
the Permitted Exceptions, for the full amount of the Purchase
Price.
8.2.6 Delivery
of Documents. On the Closing Date, Seller shall have
delivered into the Escrow each of the items to be delivered by
Seller pursuant to Section 9.1.1.
15
ARTICLE 9
CLOSING
9.1 Procedure.
9.1.1 Deliveries
by Seller. Not less than one (1) business day prior to the
Closing Date, subject to the satisfaction of the conditions to
Seller’s obligations set forth in this Agreement, Seller
shall deliver into Escrow with the Settlement Agent fully executed
by Seller (and acknowledged and in recordable form where
appropriate) the following:, in form and substance acceptable to
Buyer:
(a)
Deed. The Deed, executed by
Seller, in recordable form.
(b) General
Assignment. Two (2) copies of an assignment and assumption
agreement in form and substance mutually acceptable to the parties
sufficient to convey the Intangibles to Buyer (the
“General
Assignment”), executed by Seller.
(c) Closing
Statement. A closing statement conforming to the proration
and other relevant provisions of this Agreement.
(d) Entity
Transfer Certificate. Entity Transfer Certification
confirming that Seller is a “United States Person”
within the meaning of Section 1445 of the Internal Revenue Code of
1986, as amended.
(e) ALTA
Statement. If required by the Title Company, an
Owner’s Affidavit and a “gap” affidavit, each
executed by Seller and in form and substance reasonably acceptable
to the Title Company and Seller.
(f) Lease.
Two (2) copies of the Lease executed by Seller, and
(g) Form
I-295. Seller’s Affidavit – Nonresident Seller
Withholding on South Carolina Department of Revenue Form I-295 (a
“Form I-295”)
and any additional documents as may be necessary to enable Buyer
and the Settlement Agent to determine whether any withholding of
the Purchase Price is required under South Carolina
law.
(h) Seller’s
Closing Certificate. A certificate, signed by Seller,
certifying to Buyer that Seller’s representations and
warranties set forth in Section 6.1 above are materially true and
correct as of the Closing Date in all material
respects.
(i) Buyer’s
Closing Certificate. A certificate, signed by Buyer,
certifying to Seller that Buyer’s representations and
warranties set forth in Section 6.2 above are materially true and
correct as of the Closing Date in all material
respects.
(j) Tax
Certificate. A Tax Compliance Certificate from the South
Carolina Department of Revenue, or a Transferor Affidavit, as
applicable, in connection with the transfer of the Property as may
be required by applicable law.
16
(k) Such
other documents as may be required to effectuate the sale and
transfer of the Property.
9.1.2 Deliveries by Buyer. Not less
than one day prior to the Closing Date, subject to the satisfaction
of the conditions to Buyer’s obligations set forth in this
Agreement, Buyer shall deposit into Escrow with the Settlement
Agent fully executed by Buyer (and acknowledged and in recordable
form where appropriate) the following: (a) the balance of the
Purchase Price, (b) two (2) copies of the Lease, (c) two (2) copies
of the General Assignment, and (d) cash in an amount sufficient to
cover Buyer’s portion of the prorations, charges and closing
costs allocated to Buyer pursuant to this Agreement.
9.1.3 Additional
Deliveries. Buyer and Seller shall each deposit into Escrow
such other instruments and items as are reasonably required by the
Settlement Agent or the Title Company or otherwise required to
close the Escrow and to consummate the transactions contemplated by
this Agreement.
9.2 Possession.
Seller shall transfer possession of the Property to Buyer on the
Closing Date (subject to the terms of the Lease). On the Closing
Date or as soon thereafter as practicable, Seller and Buyer shall
send written notices to all tenants of the Property and all vendors
and contractors who furnish goods or services for the Property
informing them that Seller sold the Property to Buyer on the
Closing Date.
9.3
Closing
Costs.
9.3.1 Seller
shall pay any transfer taxes or conveyance taxes, notary and
delivery fees, including the deed recording fee, and its attorney
fees. Buyer shall pay the premiums for the Title Policy and related
search costs and its attorney fees. Any other closing costs shall
be allocated in accordance with the customary standard of practice
in Richland County, South Carolina.
9.3.2 The
costs of any escrow cancellation shall be shared equally by Buyer
and Seller unless such cancellation results from a default by Buyer
or Seller hereunder, in which event the defaulting party shall pay
all escrow fees.
9.4 Broker’s
Commission. Buyer and Seller each warrant and represent to
the other that it has not retained, nor is it obligated to, any
person for brokerage, finder’s or similar services in
connection with the transactions contemplated by this Agreement,
and that no commission, finder’s fee or other brokerage or
agent’s compensation can be properly claimed by any person or
entity based upon the acts of such party with regard to the
transactions which are the subject matter of this Agreement with
the exception of CBRE (“Seller’s Broker”). Seller
shall pay any and all real estate brokerage or agent’s
commissions, finder’s fees, or other compensations payable to
Seller’s Broker for services rendered in connection with this
Agreement in accordance with separate agreements between
Seller’s Broker and Seller. Seller shall indemnify and defend
Buyer against and hold Buyer harmless from all claims demands,
liabilities, losses, damages, costs and expenses (including,
without limitation, reasonable attorneys' fees, costs of expert
witnesses, court costs and other litigation expenses) arising from
or relating to any claim for a commission, fee or other
compensation made by any brokers or parties with which Seller has
dealt in connection with this Agreement or the transactions
contemplated hereby including Seller’s Broker. Buyer shall
indemnify and defend Seller against and hold Seller harmless from
all claims, demands, liabilities, losses, damages, costs and
expense (including, without limitation, reasonable attorneys' fees,
costs of expert witnesses, court costs and other litigation
expenses) arising from or related to any claim for a commission,
fee or other compensation made by any brokers or parties with which
Buyer has dealt in connection with this Agreement or the
transactions contemplated hereby with the exception of
Seller’s Broker. The provisions of this Section 9.4 shall
survive the Closing or any other termination of this
Agreement.
17
9.5 Prorations.
Notwithstanding anything to the contrary set forth herein, all
prorations of rent, additional rent, expense reimbursements and
other income and all current taxes, assessments, utilities, and
maintenance charges of the Property shall be on a triple net basis
in accordance with the terms of the Lease. At Closing, Seller shall
prepay rent due pursuant to the Lease for remainder of the month in
which the Closing occurs, which shall be prorated on a per diem
basis inclusive of the Closing Date. Except as otherwise
specifically set forth in the Lease, Seller shall be responsible
for the payment of any and all amounts which are customarily
prorated between parties at Closing, regardless of when Seller may
have incurred such expenses.
ARTICLE 10
DEFAULT; LIQUIDATED DAMAGES
10.1
Effect of
Default.
10.1.1
Default by Buyer.
In the event Buyer defaults in its obligations to close the
purchase of the Property, Seller’s sole and exclusive remedy
shall be to cause Settlement Agent to deliver to Seller the
Deposit, as fixed and liquidated damages, it being understood that
Seller’s actual damages in the event of such default are
difficult to ascertain and that such proceeds represent the
parties’ best current estimate of such damages.
10.1.2 Default
by Seller. If Seller defaults in the performance of its
obligations contained in this Agreement within the time for
performance as specified herein (including Seller’s
obligation to close), then Buyer shall give Seller written notice
of such default on or prior to the Closing Date and Seller shall
have fourteen (14) days from the date of receipt of such notice to
cure such default and the Closing Date shall be extended
accordingly. If Seller fails to cure such default within such
fourteen (14) day period, Buyer may, as its sole and exclusive
remedy, elect either to (i) terminate Buyer’s obligations
under this Agreement by written notice to Seller, in which event
the Deposit shall be returned to Buyer pursuant to the terms of
this Agreement and the Escrow Agreement, and neither party shall
have any further rights or obligations to the other hereunder,
except for those which expressly survive the termination of this
Agreement; or (ii) file an action for specific performance. In the
event Buyer prevails in an action for specific performance, Buyer
may seek direct damages incurred by Buyer as a result of the delay
in Closing. Nothing in this Section 10.1.2 shall be deemed to in
any way to limit or prevent Buyer from exercising any right of
termination expressly provided to Buyer elsewhere in this Agreement
or limit the rights and remedies of Buyer with respect to any
terms, conditions or covenants that expressly survive the
termination of this Agreement. Notwithstanding the foregoing, in
the event Seller defaults in any of its post-closing obligations
pursuant to this Agreement or any obligations under this Agreement
that by their terms survive Closing or a termination of this
Agreement, Buyer shall have all of its remedies at law and in
equity on account of such default subject to the limitations
expressly set forth in this Agreement.
18
10.2 Settlement
Agent. No termination of this Agreement shall relieve either
party of its obligation to the Settlement Agent for payment of its
fees and costs in accordance with this Agreement, or any liability
it may have for its prior default under this Agreement. Upon
termination of this Agreement, Buyer shall quit claim to Seller any
interest Buyer may have in the Property as a result of this
Agreement.
10.3
Damages. Except as
otherwise expressly set forth herein, neither Buyer nor Seller
shall be entitled to seek or recover any indirect, consequential,
punitive or special damages as a result of any breach of this
Agreement.
ARTICLE 11
GENERAL PROVISIONS
11.1 Notices.
All notices, consents, approvals and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given or made (a) upon delivery if hand delivered; (b) one (1)
business day after delivery to any nationally recognized overnight
courier service for next business day delivery, fee prepaid; or (c)
the same day when sent by electronic mail or confirmed facsimile,
and in each case addressed as follows:
To
Buyer:
Voltari Real Estate
Holding LLC
000 Xxxxx Xxxxxx,
Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Email
xxxxxxxx@xxxx.xx
with a
mandatory
copy
to:
Xxxxx Xxxxxxx
LLP
000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxx, Esq. and Xxxxxx X. Xxxxxx, Esq.
Email:
xxxxxx@xxxxxxxxxxxx.xxx
Email:
xxxxxxx@xxxxxxxxxxxx.xxx
Fax No.
(000) 000-0000
To
Seller:
The State Media
Company
c/o The
McClatchy Company
0000 X
Xxxxxx
Xxxxxxxxxx, XX
00000
Attn:
R. Xxxxxx Xxxxxxxx
Email:
xxxxxxxxx@xxxxxxxxx.xxx
Fax
No.: (000) 000-0000
19
with a
mandatory
copy
to:
The McClatchy
Company
0000 X
Xxxxxx
Xxxxxxxxxx, XX
00000
Attn:
Xxxx O’Xxxx Xxxxxxxxxx, Esq.
Email:
xxxxxxxxxxx@xxxxxxxxx.xxx
Fax
No.: (000) 000-0000
11.2 Merger/Entire
Agreement. This Agreement is intended to be the entire
agreement of the parties. All prior negotiations and written and
contemporary oral agreements between the parties and their agents
with respect to the transactions contemplated by this Agreement are
merged in this Agreement together with its exhibits.
11.3 Time.
Time is of the essence in the performance of the parties’
respective obligations pursuant to this Agreement.
11.4
Attorneys’
Fees.
11.4.1 If
there is any legal action, arbitration or proceeding between Seller
and Buyer arising from or based on this Agreement or the
interpretation or enforcement of any provisions hereof, then the
unsuccessful party to such action, arbitration or proceeding shall
pay to the prevailing party all costs and expenses, including
reasonable attorneys’ fees, incurred by such prevailing party
in such action, arbitration or proceeding and in any appeal in
connection therewith. If such prevailing party recovers a judgment
in any such action, arbitration, proceeding or appeal, then such
costs, expenses and attorneys’ fees shall be included in and
as a part of such judgment. For purposes hereof, the
“prevailing party” shall be the party which recovers
substantially the relief sought by said party, whether by judgment,
settlement, dismissal or otherwise, in connection with any such
action, proceeding or arbitration.
11.4.2 If
the services of an attorney are required by any party to enforce a
judgment rendered in connection with this Agreement, the judgment
creditor shall be entitled to reasonable attorneys’ fees,
costs and other expenses, and such fees, costs and expenses shall
be recoverable as a separate item. This provision shall be
severable from all other provisions of this Agreement, shall
survive any judgment, and shall not be deemed merged into the
judgment.
20
11.5 Successors
and Assigns; Exchange. The terms, conditions and covenants
of this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective nominees, successors,
beneficiaries and assigns; provided, however, no conveyance,
assignment or transfer of any interest whatsoever of, in or to the
Property or of this Agreement shall be made by Seller or Buyer
during the term of this Agreement, except Seller may assign all or
any of its right, title and interest under this Agreement to any
third party intermediary (an “Intermediary”) in connection with
a tax-deferred exchange pursuant to Section 1031 of the Internal
Revenue Code (an “Exchange”). Buyer may not assign
this Agreement without the prior written consent of Seller, which
consent shall not be unreasonably withheld. Notwithstanding the
foregoing, without the consent of Seller, Buyer may assign all or
any of its right, title and interest under this Agreement to: (i)
an Intermediary in connection with an Exchange; or (ii) an
affiliate of Buyer, so long as such affiliate controls, is
controlled by, or is under common control with Buyer, and provided
that such affiliate shall assume, in writing (by execution of an
assignment and assumption of this Agreement in form and substance
reasonably satisfactory to Seller), all of Buyer’s
obligations under this Agreement. In the event of an assignment of
this Agreement by Buyer, its assignee shall be deemed to be the
Buyer hereunder for all purposes hereof, and shall have all rights
of Buyer hereunder (including, but not limited to, the right of
further assignment), but the assignor shall not be released from
liability hereunder. In the event either party elects to assign
this Agreement to an Intermediary, the other party shall reasonably
cooperate with the assigning party (without incurring any
additional liability or any additional third party expenses) in
connection with such election and the consummation of the Exchange,
including without limitation, by executing an acknowledgment of the
assigning party’s assignment of this Agreement to the
Intermediary.
11.6 Amendments
or Modifications. This Agreement is subject to amendment or
modification only with the written consent of both of the
parties.
11.7 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF SOUTH CAROLINA. The
parties acknowledge that each has engaged local counsel in
assistance with this transaction and that this transaction shall be
closed in compliance with all South Carolina Unauthorized Practice
of Law requirements.
11.8 Construction.
Seller and Buyer acknowledge that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the
interpretation of this Agreement or any document executed and
delivered by either party in connection with the transactions
contemplated by this Agreement. The captions in this Agreement are
for convenience of reference only and shall not be used to
interpret this Agreement.
11.9 Terms
Generally. The defined terms in this Agreement shall apply
equally to both the singular and the plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine or neuter forms. The
term “person” includes individuals, corporations,
partnerships, trusts and other entities and associations. The words
“include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” The words
“approval,” “consent” and
“notice” shall be deemed to be preceded by the word
“written.”
11.10
Further Assurances.
Seller and Buyer shall cooperate with each other as reasonably
necessary to effect the provisions of this Agreement, shall use
reasonable and good faith efforts to satisfy conditions to Closing
and, at and after Closing, shall each execute and deliver such
additional instruments or other documents as the other may
reasonably request to accomplish the purposes and intent of this
Agreement; provided, however, that nothing in this Section 11.10
shall be deemed to enlarge the obligations of the parties hereunder
or to require either Seller or Buyer to incur any material expense
or liability not otherwise required of it hereunder.
21
11.11 Partial
Invalidity. If any provision of this Agreement is determined
by a proper court to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement and this Agreement shall remain
in full force and effect without such invalid, illegal or
unenforceable provisions provided that the severance of such
provision(s) does not result in a material failure of consideration
under this Agreement to either party hereto.
11.12 Exhibits.
The Exhibits attached to this Agreement are made a part of this
Agreement.
11.13 Counterparts;
Facsimile. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and
all of such counterparts shall constitute one Agreement. In order
to facilitate the transactions contemplated herein, telecopied
signatures, electronic signatures (e.g. signatures transmitted via
email in pdf format), or facsimile signatures (individually or
collectively “Electronic
Signatures”) may be used in place of original
signatures or any written notices required hereunder. Seller and
Buyer intend to be bound by the signatures transmitted
electronically, and are aware that the other party will rely on the
same, and hereby waive any defenses to the enforcement of the terms
of this Agreement based on the form of signature. In the event a
signature is transmitted electronically, the party so transmitting
shall deliver original signature pages as soon as reasonably
possible thereafter; provided, however, that the failure to deliver
such original signature pages shall not diminish the binding nature
of any Electronic Signatures.
11.14 Damage
or Taking. If, prior to Closing, all or any portion of the
Land or the Improvements are damaged by fire or other natural
casualty (collectively “Casualty Damage”), or are taken or
made subject to condemnation, eminent domain or other governmental
acquisition proceedings (collectively “Eminent Domain”), then the
following procedures shall apply. If the aggregate cost of repair
or replacement of the Casualty Damage (collectively,
“repair and/or
replacement”) is $1,250,000.00 or less, in the opinion
of Buyer’s and Seller’s respective engineering
consultants, (i) Seller may elect to terminate this Agreement, or
(ii) Buyer shall close and take the Property as diminished by such
events, subject to an assignment of Seller’s casualty
insurance proceeds (plus a credit for the amount of any unpaid
deductible, together with the difference between the amount of the
proceeds and the average estimate of the cost of repairs provided
by Buyer’s and Seller’s respective consultants) or an
assignment of any condemnation award, as applicable. If the
aggregate cost of repair and/or replacement of the Casualty Damage
is greater than $1,250,000.00, in the opinion of Buyer’s and
Seller’s respective engineering consultants, or in the event
of an Eminent Domain, then Buyer, at its sole option, may elect
either to (i) terminate this Agreement by written notice to Seller
in which event the provisions of 11.19 governing a permitted
termination by Buyer of the entire Agreement shall apply; or (ii)
proceed to close subject to an assignment of the proceeds of
Seller’s casualty insurance for all Casualty Damage plus a
credit for the amount of any unpaid deductible (or condemnation
awards for any Eminent Domain). In such event, Seller shall fully
cooperate with Buyer in the adjustment and settlement of the
insurance claim. In the event of a dispute between Seller and Buyer
with respect to the cost of repair and/or replacement with respect
to the matters set forth in this Section 11.14, an engineer
designated by Seller and an engineer designated by Buyer shall
select an independent engineer licensed to practice in the
jurisdiction where the Property is located who shall resolve such
dispute. All fees, costs and expenses of such third engineer so
selected shall be shared equally by Buyer and Seller.
22
11.15 Holidays.
In the event any date for performance of any obligation or the
giving of any notice pursuant to this Agreement occurs on a South
Carolina state or federal holiday or on a Saturday or Sunday, then
the next business day shall be deemed the applicable date for
performance or notice.
11.16 Confidentiality.
Subject to Section 11.19, Buyer and Seller agree that, except as
otherwise provided by law, they shall keep the contents of this
Agreement and any information related to the transaction
contemplated hereby confidential and further agree that no
publicity or press release to the general public with respect to
this transaction shall be made by either party without the prior
written consent of the other party. In addition, Buyer hereby
acknowledges that all documents, reports and other information
delivered hereunder to Buyer are intended solely for the use of
Buyer in connection with its examination of the Property and Buyer
agrees, subject to Section 11.19, to treat the same confidentially
and not to give copies or otherwise reveal any such information to
any third parties (except for consultants and other professional
advisors advising Buyer in connection with the transaction) without
Seller’s prior written approval. This Agreement shall not be
recorded and shall not constitute a lien against the Property. Any
attempted recording of this Agreement or any memorandum thereof by
Buyer shall constitute a material default hereunder, giving Seller
the right to terminate this Agreement and exercise any and all
remedies of Seller set forth herein, or otherwise available at law
or in equity, all of which shall be deemed cumulative Notwithstanding
anything to the contrary set forth in this Agreement, the
provisions of this Section 11.16 shall exclude the disclosure of
any Transaction Information which is not kept confidential as the
result of, or in connection with an involuntary data incident
including, without limitation, a data breach or computer
hacking.
11.17 Interest.
Any sums due after the Closing by either party hereto to the other,
if not paid within ten (10) days after the obligation to pay
arises, shall bear interest at the lesser of (a) twelve percent
(12%) per annum or (b) the highest rate permitted by applicable
law, from the time such obligation arises until payment in full.
The provisions of this Section 11.17 shall survive the
Closing.
11.18 Limitation
of Liability. No present or future partner, director,
officer, shareholder, employee, advisor, agent, attorney, asset
manager, or subasset manager of or in Seller or Buyer shall have
any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered
into under or in connection with the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and Buyer and Seller hereby
waive any and all such personal liability. The limitations on
liability contained in this Section 11.18 are in addition to, and
not in limitation of, any limitation on liability applicable to
Seller or Buyer provided in any other provision of this Agreement
or by law or by any other contract, agreement or
instrument.
23
11.19 Required
Disclosures. Seller understands that Voltari Corporation,
Buyer’s parent company (“Parent”), is a public company
subject to the reporting requirements of the U.S. securities laws,
and Buyer and Parent acknowledge and agree that Tenant is also a
public company. Each party agrees to provide the other party and
its representatives, including Parent and Tenant, all information
in such party’s possession required for the other party to
comply with such requirements. Each party further understands that
certain information regarding such party, any tenant of the
Property including without limitation Tenant, any tenant’s
parent, and/or financial information regarding the Property or any
tenant including without limitation Tenant, may need to be included
in filings with the U.S. Securities and Exchange Commission (the
“SEC”).
Notwithstanding anything to the contrary set forth herein, Seller
agrees that Parent, and Buyer agrees that Tenant, may publicly
disclose in its filings with the SEC such information regarding the
transaction contemplated hereby as required (or deemed necessary or
advisable by such party’s external corporate counsel or
auditors) under applicable U.S. securities law, rules or
regulations, or accounting rules, including without limitation the
public filing of a Form 8-K, Form 10-Q or Form 10-K with the SEC
within four (4) business days of entering into this Agreement
disclosing the entry into of this Agreement, and the public filing
with the SEC of this Agreement, the Lease, and cross-references to
the SEC filings of Parent or Tenant (or any successor thereto), as
applicable.
11.20 Buyer’s
Liability. Upon the Closing,
Buyer shall neither assume nor undertake to pay, satisfy or
discharge any liabilities, obligations or commitments of Seller
other than Permitted Exceptions and those that are specifically
agreed to between the parties and set forth in this Agreement
and/or or in any document to be delivered by Buyer at
Closing.
11.21 Exclusivity.
Seller agrees that, during the term of this Agreement and so long
as Buyer is not in default of its obligations hereunder, (i) it
will negotiate exclusively with Buyer concerning a potential sale
of the Property; (ii) it will not market the Property for sale or
allow other potential buyers to inspect or tour the Property, and
(iii) it has not and will not enter into any agreement to sell the
Property to any party other than Buyer. If Seller breaches its
obligations under this Section 11.21, Buyer shall have the right to
damages and, at Buyer’s election, injunctive or other
equitable relief.
11.22 Drafts
Not Binding. This instrument,
whether in draft or final form, does not constitute an offer by
Seller to sell the Property or any part thereof or interest
therein, and shall not bind or obligate Seller or Buyer in any
fashion whatsoever until Seller and Buyer, each in its sole and
absolute discretion, elects to be bound hereby by executing and
delivering to the other an executed original counterpart
hereof.
[REMAINDER
OF PAGE INTENTIONALLY BLANK - SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the date first hereinabove written.
|
SELLER:
THE
STATE MEDIA COMPANY, a South Carolina corporation
By: /s/ Xxxxx
XxXxxxxx
Name:
Xxxxx XxXxxxxx
Its:
Vice President, Secretary
|
|
BUYER:
VOLTARI REAL
ESTATE HOLDING LLC, a Delaware limited liability
company
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Its:
Chief Accounting Officer
|
|
|
|
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