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Exhibit 1
PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT made and entered into as of the 9th day of June, 2000, by and
between XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP, a Massachusetts
limited partnership, having its principal address c/o The Real Estate Investment
Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter "Seller"), and MISSION MOUNTAIN, LLC, having an office address at
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereinafter
"Buyer");
WITNESSETH THAT:
WHEREAS, Seller desires to sell certain improved real property known as
Park Square Shopping Center and located in Brooklyn Park, Minnesota, along with
certain related personal and intangible property; and
WHEREAS, Buyer desires to purchase such real, personal, and intangible
property in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth the parties hereto mutually agree as follows:
1. THE PROPERTY.
1.1 DESCRIPTION: Subject to the terms and conditions of
this Agreement, and for the consideration herein set forth, Seller agrees to
sell and transfer, and Buyer agrees to purchase and acquire, all of Seller's
right, title, and interest in and to the following (collectively, the
"Property"):
1.1.1 Certain land (the "Land") located at
8000-8007 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxx, and more specifically
described in EXHIBIT 1.1.1 attached hereto;
1.1.2 The building(s), parking areas,
improvements, and fixtures now situated on the Land (the "Improvements");
1.1.3 All furniture, personal property, machinery,
apparatus, and equipment currently used in the operation, repair, and
maintenance of the Land and the Improvements and situated thereon, excluding,
however, tangible personal property and fixtures of the Improvements which are
owned by tenants or which may be removed by tenants under the terms of their
leases (collectively, the "Personal Property"). The Personal Property to be
conveyed is subject to depletions, replacements, and additions in the ordinary
course of Seller's business;
1.1.4 All easements, hereditaments, and
appurtenances belonging to or inuring to the benefit of Seller and pertaining to
the Land, if any;
1.1.5 Any street or road abutting the Land to the
center line thereof (to the extent owned by Seller);
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1.1.6 The leases or occupancy agreements,
including those in effect on the date of this Agreement which are identified on
the Schedule of Leases attached hereto as EXHIBIT 1.1.6, and any new leases
entered into pursuant to Section 7.3 including all amendments thereto, which as
of the Closing (or Date of Closing, as hereinafter defined) affect all or any
portion of the Land or the Improvements (collectively, the "Leases"), and any
security deposits actually held by Seller with respect to any such Leases;
1.1.7 All service, maintenance, supply, or other
contracts relating to the operation of the Property, including those in effect
as of the date hereof which are listed on EXHIBIT 1.1.7 hereto and any new
contracts entered into pursuant to Section 7.2 (together, the "Contracts"),
subject to Section 5.5 hereof;
1.1.8 The name "Park Square Shopping Center" (if
available);
1.1.9 Assignable warranties and guaranties issued
in connection with the Improvements or the Personal Property which remain in
effect as of Closing; and
1.1.10 All transferable consents, authorizations,
variances or waivers, licenses, permits, and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau, or other
entity or instrumentality solely in respect of the Land or the Improvements
which remain valid or in effect as of Closing.
1.2 AGREEMENT TO CONVEY. Seller agrees to convey, and
Buyer agrees to accept, on the Date of Closing: (a) title to the Land and the
Improvements in the condition described in Section 6.1, and subject to the
Permitted Exceptions (as hereinafter defined); and (b) title to the Personal
Property, by Xxxx of Sale (as hereinafter defined), without warranty as to the
title or the condition of such personalty.
2. PURCHASE PRICE. The Property is to be sold to Buyer for the
sum of Eight Million Twenty-Five Thousand Dollars ($8,025,000.00) (the "Purchase
Price"), which Buyer shall pay to Seller on the Date of Closing by wiring
immediately available Federal funds to such bank account as may be designated by
Seller.
3. DEPOSIT. Buyer shall deposit with the Title Company (as
hereinafter defined) the sum of $100,000.00 by official bank cashier's check
simultaneously with the execution of this Agreement as a good faith deposit
(hereinafter, said deposit and such interest as is earned thereon shall be
referred to as the "Deposit"), which Deposit shall be disposed of in the manner
herein provided. Such Deposit shall be invested by the Title Company in a daily
redeemable, interest bearing account acceptable to Seller and Buyer, with all
interest earned thereon to be payable or credited (i) to Buyer upon Closing or
upon termination of this Agreement for reasons other than Buyer's default, or
(ii) to Seller in the event of termination of this Agreement due to Buyer's
default. If Closing occurs in accordance with this Agreement, the Deposit shall
either be applied against the Purchase Price or returned by Seller to Buyer on
the Date of Closing, as hereinafter provided. If this Agreement is terminated,
or if either party fails to perform
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any of its agreements hereunder, the Deposit shall be disposed of in the manner
hereinafter provided.
4. CLOSING. Subject to the provisions of this Agreement, the
Closing Documents (as hereinafter defined) shall be delivered at 10 o'clock
A.M., E.S.T., on July 19, 2000 (the "Date of Closing" or "Closing"), at an
office of Chicago Title Insurance Company (the "Title Company"), unless
otherwise agreed upon in writing. Contact for all title insurance requirements
should be made through the following office:
Xxxxx Xxxxxx, Commercial Escrow Officer
Chicago Title Insurance Company
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
5. BUYER'S REVIEW.
5.1 ACCESS.
5.1.1 Seller shall promptly upon the execution
hereof make available to Buyer copies of the Contracts and the Leases. Seller
agrees to allow Buyer or Buyer's agents or representatives reasonable access to
the Property (during business hours) for purposes of any non-intrusive physical
or environmental inspection of the Property, interviewing of tenants, and review
and copying of the Contracts, the Leases, Seller's books and records relating to
the Property (other than any privileged, proprietary or confidential records),
soil reports, environmental studies and reports, surveys, building and systems
plans, income and expense statements, and other matters necessary in the
reasonable discretion of Buyer to evaluate and analyze the feasibility of the
Property for Buyer's intended use thereof. Buyer shall not conduct or authorize
any physically intrusive testing of, on, or under the Property without first
obtaining Seller's written consent as to the timing and scope of work to be
performed, such consent not to be unreasonably withheld.
5.1.2 Except as otherwise expressly set forth
herein, Seller makes no representations or warranties as to the truth, accuracy,
or completeness of any materials, data, or other information, including without
limitation the contents of Seller's or its property manager's books and records,
marketing materials prepared by Seller or the Broker (as hereinafter defined),
the Leases, the Contracts, rent rolls or income and expense statements, supplied
to Buyer in connection with Buyer's inspection of the Property. It is the
parties' express understanding and agreement that all such materials are
provided by Seller solely for Buyer's convenience in making its own examination
and determination prior to the Approval Date (as hereinafter defined) as to
whether it wishes to purchase the Property, and, in making such examination and
determination, Buyer shall rely exclusively on its own independent investigation
and evaluation of the Property and not on any materials supplied by Seller.
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5.2 TITLE AND SURVEY. Buyer or Seller shall obtain a
commitment by the Title Company to issue an owner's policy of title insurance
insuring the Land and the Improvements (the "Title Commitment"), and a survey of
the Land prepared by a professional land surveyor licensed in the state in which
the Property is located (the "Survey").
5.3 BUYER'S RIGHT TO OBJECT OR TERMINATE.
5.3.1 BUYER'S RIGHT TO OBJECT. Buyer shall have
the right, in its sole discretion, on or before 5:00 p.m. E.S.T. on a date 45
days from the date of this Agreement (as set forth on page 1 hereof) (the
"Approval Date") to make written objection to any matter regarding the Property
("Objection Notice"), which notice must specify the reason such matter(s) are
not satisfactory and the curative steps necessary to remove the basis for
Buyer's disapproval. The parties shall then have until the later of ten (10)
business days after the date of the Objection Notice and the Approval Date
(whichever is later, the "Objection Deadline") to make such arrangements or take
such steps as they shall mutually agree to satisfy Buyer's objection(s);
provided, however, that Seller shall have no obligation whatsoever to expend or
agree to expend any funds, to undertake or agree to undertake any obligations,
or otherwise to attempt to cure or agree to attempt to cure any objections, and
Seller shall not be deemed to have any obligation to attempt to cure any such
matters unless Seller expressly undertakes such an obligation by a written
notice to or written agreement with Buyer given or entered into on or prior to
the Objection Deadline and which recites that it is in response to an Objection
Notice. Buyer's sole right with respect to any objections contained in an
Objection Notice given in a timely manner shall be to elect on or before the
Objection Deadline to terminate this Agreement pursuant to Section 5.3.2 hereof.
All possible objections regarding title, the Survey, or other matters regarding
the Property not included in an Objection Notice given by Buyer to Seller on or
before the Approval Date, or with respect to which a timely Objection Notice is
given but Seller fails to expressly agree to attempt to cure as provided above,
shall be deemed to be approved by Buyer as "Permitted Exceptions" as provided in
Section 5.4 hereof, with the exception of mortgages, mechanic's liens and other
monetary liens, which shall be deemed objections.
5.3.2 BUYER'S RIGHT TO TERMINATE. In the
alternative, Buyer shall have the right, in its sole discretion, on or before
the Approval Date (if the Objection Notice has not been given) or the Objection
Deadline (if the Objection Notice has been given), to terminate its obligation
to purchase the Property by giving Seller written notice of termination (the
"Termination Notice"). If the Termination Notice is timely given, Seller shall
direct the Title Company promptly to return the Deposit to Buyer and neither
party shall have any further obligations or liability hereunder except as
expressly set forth in this Agreement, including without limitation Sections 6.2
and 24 hereof. In the event that Buyer does not tender to Seller the Objection
Notice or the Termination Notice prior to the Approval Date or the Objection
Deadline, as applicable: (a) the Deposit shall be non-refundable; and (b) Buyer
shall have no further rights to the Deposit, and no further right to terminate
this Agreement, except pursuant to Sections 9.1, 13, or 18.1.
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5.4 PERMITTED EXCEPTIONS. If this Agreement is not
terminated, Buyer shall be deemed to have approved and to have agreed to
purchase the Property subject to the following:
5.4.1 all possible title objections, survey
objections, and any defects in or to title to the Property or other matters
affecting or relating to the title to, or the survey of, or the condition of the
Property existing as of the Approval Date and not included in an Objection
Notice given by Buyer and/or which Buyer has otherwise approved or is deemed to
have approved pursuant to Section 5.3.1 hereof, excluding such title or survey
objections which are not noted in the title commitment or on the survey, or
which first occur after the Approval Date and prior to Closing;
5.4.2 all existing Leases, and all Contracts and
Leases which Buyer has approved or is deemed to have approved, or which Seller
is permitted to enter into, pursuant to Sections 5.5, 7.2, and 7.3 hereof;
5.4.3 the lien of non-delinquent real and personal
property taxes and assessments;
5.4.4 INTENTIONALLY OMITTED
5.4.5 discrepancies, conflicts in boundary lines,
shortages in area, encroachments, and any state of facts which an inspection of
the Property would disclose and which are not shown by the public records;
5.4.6 easements or claims of easements shown by
the public records; and
5.4.7 any service, installation, connection,
maintenance or construction charges which arise after Closing, and, subject to
the proration provisions hereof, charges for sewer, water, electricity,
telephone, cable television or gas.
All of the foregoing are referred to herein collectively as the "Permitted
Exceptions".
5.5 CONTRACTS. On or before the Approval Date, Buyer
shall notify Seller in writing as to which of the Contracts Buyer elects to
assume at Closing. Seller shall notify the vendors under those Contract(s) which
Buyer has not agreed to assume that, provided that Closing occurs hereunder,
such Contracts shall terminate, effective as of the Date of Closing; provided
however if any such non-assumed Contract does not permit Seller to terminate
same within thirty (30) days or requires that Seller pay a fee to terminate same
prior to Closing, Buyer shall be required at Closing to assume all obligations
thereunder until the effective date of the termination and to assume the
obligation to pay, or to reimburse Seller for the payment of, the termination
fee.
6. CONDITION OF PREMISES.
6.1 Buyer and Seller agree that Buyer is acquiring the
Property in its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY
WARRANTY, EXPRESS OR IMPLIED. Except as otherwise expressly set forth herein,
neither Seller
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nor any agents, representatives, or employees of Seller have made any
representations or warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees of Buyer with
respect to the condition of the Property, its fitness for any particular
purpose, or its compliance with any laws, and Buyer is not aware of and does not
rely upon any such representation to any other party. Buyer acknowledges that
the Purchase Price might be higher if Buyer were not acquiring the Property in
"as is" condition. Buyer acknowledges that it either has had or will have before
the Date of Closing the opportunity to make such inspections (or have such
inspections made by consultants) as it desires of the Property and all factors
relevant to its use, including, without limitation, the interior, exterior, and
structure of all Improvements, and the condition of soils and subsurfaces
(particularly with respect to the presence or absence of hazardous substances).
6.2 After its inspections are completed, Buyer shall
restore the Property to its condition prior to Buyer's inspections. Buyer agrees
to indemnify Seller for all claims or damages arising out of (i) any negligence
or wrongful act by Buyer, its employees, agents or contractors in connection
with Buyer's inspections, or (ii) violation of Buyer's obligations under Section
5.1.1, including, without limitation, claims for personal injury or property
damage, and including all costs and attorneys' fees. The obligations in this
Section 6.2 shall survive the Closing or the termination of this Agreement for
any reason, including without limitation pursuant to Sections 5.3.2, 9.1, or 13
hereof.
6.3 Buyer hereby releases Seller and its agents,
representatives, and employees from any and all claims, demands, and causes of
action, past, present, and future, that Buyer may have relating to (i) the
condition of the Property at any time, before or after the Date of Closing,
including, without limitation, the presence of any hazardous substance, or (ii)
any other matter pertaining to the Property. This release shall survive the
Closing or the termination of this Agreement for any reason. Notwithstanding the
foregoing, Buyer's release shall apply only to those matters actually known,
discovered or which, with the exercise of reasonable diligence should have been
discovered by Buyer in the course of its due diligence.
7. PRIOR TO CLOSING.
7.1 Until Closing, Seller or Seller's agents shall:
7.1.1 INSURANCE. maintain the types and amounts of
insurance that are in force on the date of execution hereof; and
7.1.2 OPERATION. operate and maintain the Property
substantially in accordance with Seller's past practices with respect to the
operation of the Property, and deliver the Property to Buyer at Closing in its
present condition, normal wear and tear excepted, subject to Section 13 hereof.
7.2 NEW CONTRACTS. Between the Approval Date and the Date
of Closing, Seller will enter into only those Contracts which Seller believes
are necessary to carry out its obligations under Section 7.1.2 and which shall
be cancelable on not more than thirty (30) days' written notice. If Seller
enters into any such Contract, it shall
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promptly provide written notice thereof to Buyer and unless Buyer, within seven
(7) days thereafter, notifies Seller in writing of Buyer's intention to assume
such Contract, it shall be treated as a non-assumed Contract under Section 5.5
hereof.
7.3 NEW LEASES. Between the Approval Date and the Date of
Closing, Seller will not execute any new Leases or materially amend, terminate
(except upon a default by the tenant thereunder), or accept the surrender of any
existing tenancies or approve any subleases without the prior consent of Buyer,
which consent shall not be unreasonably withheld (having in mind commercially
reasonable matters such as the amount of rent, the term, and the use under the
proposed lease, and the proposed tenant's creditworthiness); provided however
that Seller is authorized to accept the termination of Leases at the end of
their existing terms and to expand, extend, or renew any Leases pursuant to
expansion, extension, or renewal options contained therein. With respect to all
Leases identified on EXHIBIT 7.3 hereto and all new Leases executed after the
Approval Date which Buyer has approved (or should have approved in its
reasonable discretion) pursuant to this Section 7.3, which Leases require the
construction of tenant improvements and/or the payment of leasing or brokerage
commission(s) by landlord, including without limitation brokerage commissions
upon the exercise by the tenant thereunder of an expansion, extension, or
renewal option contained in such tenant's lease, Buyer shall: (a) pay, and/or
reimburse Seller at Closing for the paid portion of, the cost of such
improvements and such leasing or brokerage commission(s) and any other costs
associated with such Lease; and (b) assume all of Seller's obligations as
landlord thereunder with respect to the payment of tenant improvements and
brokerage commissions after Closing. Failure of Buyer to consent, or to
expressly withhold its consent in writing stating with specificity the
reasonable basis of its objection, within three (3) business days after written
request by Seller for such consent, to any Lease submitted by Seller to Buyer
after the Approval Date, or the unreasonable refusal by Buyer to grant its
consent to any Lease or lease amendment submitted by Seller to Buyer after the
Approval Date, shall be deemed to constitute consent.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Seller represents and warrants to Buyer as follows:
8.1.1 Seller is an insurance company, duly
organized, validly existing, and in good standing under the laws of the
Commonwealth of Massachusetts and the state in which the Property is located.
8.1.2 Subject to Section 9.2 hereof, Seller has
all requisite power and authority to execute and deliver this Agreement and to
carry out its obligations hereunder and the transactions contemplated hereby.
This Agreement has been, and the documents contemplated hereby will be, duly
executed and delivered by Seller and constitute Seller's legal, valid, and
binding obligation enforceable against Seller in accordance with its terms. The
consummation by Seller of the sale of the Property is not in violation of or in
conflict with, nor does it constitute a default under any term or provision of,
the organizational documents of Seller, or any of the terms of any agreement or
instrument to which Seller is a party, or by which Seller is bound, or any
provision of any applicable law, ordinance, rule, or regulation of any
governmental
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authority or any provision of any applicable order, judgment, or decree of any
court, arbitrator, or governmental authority.
8.2 Buyer represents and warrants to Seller as follows:
8.2.1 Buyer is a limited liability company, duly
organized, validly existing, and in good standing under the laws of Delaware and
the state in which the Property is located.
8.2.2 Buyer has all requisite power and authority
to execute and deliver this Agreement and to carry out its obligations hereunder
and the transactions contemplated hereby. This Agreement has been, and the
documents contemplated hereby will be, duly executed and delivered by Buyer and
constitute its legal, valid, and binding obligation enforceable against it in
accordance with its terms, and the consummation and performance by Buyer of the
transactions contemplated herein will not result in a violation of or be in
conflict with or constitute a default under any term or provision of the
organizational documents of Buyer, or any of the terms of provisions of any
agreement or instrument to which it is a party, or by which it is bound, or of
any term of any applicable law, ordinance, rule or regulation of any
governmental authority or of any term of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.3 The above-stated representations and warranties will
survive the Closing for a period of three (3) months, before the expiration of
which the party claiming a breach must have filed an action in a court of
competent jurisdiction, and any representation and warranty not specified in
such action shall expire. Any such claim shall be limited to actual damages
(specifically including reasonable attorneys' fees and expenses and court costs)
suffered by the claiming party (specifically excluding consequential, punitive,
or other damages), and in no event shall the aggregate of such damages exceed
$100,000.00. Buyer acknowledges that Seller has maintained no employees at the
Property and that the Property has during Seller's ownership thereof always been
managed by a third-party manager, and that Seller has relied upon such manager
for knowledge and notice.
9. CONDITIONS PRECEDENT.
9.1 REPRESENTATIONS AND WARRANTIES. Each party's
obligation to close hereunder shall be conditioned upon the truth in all
material respects as of the Date of Closing of the other party's representations
and warranties set forth in Section 8 hereof. If on the Date of Closing a
representation and warranty is not true, and such representation and warranty
either was not true on the date of this Agreement, or was true on the Date of
this Agreement but has become untrue as a result of a breach of this Agreement
by the party making the representation hereunder, the other party may either
seek its remedy pursuant to Section 18 hereof, waive this condition and proceed
to Closing, or terminate this Agreement by notice to the representing party. If
on the Date of Closing a representation and warranty is not true, and such
representation and warranty was true on the date of this Agreement and has
become untrue not as a result of a breach of this Agreement by the representing
party, the other party may either waive this condition and proceed to Closing or
terminate this Agreement by notice to
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the representing party. Upon the representing party's receipt of notice of
termination pursuant to this Section 9.1, the Deposit shall be refunded and this
Agreement shall terminate, and neither party shall be liable to the other for
damages or otherwise except as otherwise expressly provided herein.
9.2 SELLER'S APPROVALS. Seller's obligation to close
hereunder shall be conditioned upon the approval of this transaction by Seller's
internal committees. If on or before the Approval Date Seller has not notified
Buyer that such approval has been granted, such approval shall be deemed not to
have been granted, and the Deposit shall be refunded and this Agreement shall
terminate, and neither party shall be liable to the other for damages or
otherwise except as otherwise expressly provided herein. If Seller's internal
committees do not grant their approval, Seller shall reimburse Buyer for its due
diligence costs up to the amount of $50,000.00 in total upon presentation of
evidence of payment.
9.3 ADDITIONAL CONDITIONS TO BUYER'S PERFORMANCE. In
addition to the condition set forth in Section 9.1, this Purchase Agreement and
Buyer's obligations hereunder are conditioned, for the sole benefit of Buyer,
upon the following:
A. TITLE AND SECURITY. The Title Commitment and
Survey shall have been found acceptable, or been made acceptable, in accordance
with Paragraph 5.3 above. On or before the Approval Date the Title Company shall
have issued to Buyer an ALTA Owner's Title Insurance Policy (without a
creditor's rights exception) in the full amount of the Purchase Price, showing
fee simple title to the Real Property vested in Buyer in the condition required
herein, with extended coverage over all general exceptions to the policy and
with such other coverages and endorsements (including without limitation
endorsements for zoning, contiguity, appurtenant easements, access, subdivision
and the so-called "Fairway" endorsement) as either Buyer or its lender may
require; provided, however, that said Owner's Title Policy shall not in any way
vitiate the covenants in the deed to be given by Seller to Buyer hereunder. If
at the Closing Date the Title Company is unable to deliver the title insurance
policy pursuant to the Title Commitment due to an intervening lien or defect of
title, Seller shall have the opportunity to cure said lien or defect, or to
terminate the Agreement. If the Agreement is terminated pursuant to this section
9.3.A, the Deposit shall be refunded to Buyer, and this Agreement shall be null
and void and of no further force and effect.
B. CONDITION OF REAL PROPERTY AND TENANCIES.
There shall be, as of the Closing Date, no material adverse change in the
physical condition of the Real Property and no "Material Occupancy Change." For
purposes hereof, the term "Material Occupancy Change" shall mean a reduction in
the total amount of rented square footage within the buildings which constitute
part of the Property by more than five percent (5%) of the amount of such square
footage which, as of the Approval Date, has been under lease with tenants.
C. SUBORDINATION AGREEMENTS AND ESTOPPEL
LETTERS. Buyer shall have received at least seven (7) days prior to the Closing
Date, (i) from tenants occupying 90% of the leased square footage of the
Property, a subordination agreement agreeing to subordinate said tenant's
interest under its lease to the lien of
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the mortgage to be given to Buyer's lender and (ii) from tenants occupying in
the aggregate at least seventy-five percent (75%) of the leased square footage
of the buildings which constitute part of the property, an estoppel letter
setting forth the date of said tenant's lease, the monthly rent currently in
effect, the amount of any security deposits or other deposits paid in connection
with its lease, and a statement that said tenant has no claims, defenses or
rights of setoff against Seller, both of which shall be satisfactory as to form
and substance to Buyer, in its reasonable discretion.
10. ADJUSTMENTS AND PRORATIONS.
10.1 All taxes, including, without limitation, real estate
taxes and personal property taxes, collected rents, charges for utilities,
including water, sewer, and fuel oil, and for utility services, maintenance
services, maintenance and service contracts, all operating costs and expenses,
and all other income, costs, and charges of every kind which in any manner
relate to the operation of the Property (but not including insurance premiums)
shall be prorated to the Date of Closing, except that if Seller does not receive
the Purchase Price (by receipt of wired funds or by receipt in hand of an
official bank cashier's check) by noon, E.S.T., on the Date of Closing, all
prorations shall be made as of the following business day. If the amount of said
taxes, assessments, or rents is not known on the Date of Closing, they shall be
apportioned on the basis of the amounts for the preceding year, with a
reapportionment as soon as the new amounts can be ascertained. If such taxes and
assessments shall thereafter be reduced by abatement, the amount of such
abatement, less the reasonable cost of obtaining the same, shall be apportioned
between the parties, provided that neither party shall be obligated to institute
or prosecute proceedings for an abatement unless otherwise agreed. Buyer shall
be responsible for the payment of any assessments or notice of assessments made
after the date of execution hereof for any public improvement, provided Buyer
takes title hereunder. With respect to security deposits, if any, made by
tenants at the Property and actually received in hand by Seller, Buyer shall
receive credit therefor. Any deposits on utilities paid by Seller shall be
returned to Seller. The foregoing provisions of this Section 10.1 shall not
apply to any taxes, assessments, or other payments which are directly payable by
tenants under their leases or reimbursable by such tenants to the owner of the
Property, as landlord, under their leases. On the Date of Closing, Seller shall
deliver to Buyer all inventories of supplies on hand at the Property owned by
Seller, if any, at no additional cost to Buyer.
10.2 POST-CLOSING COLLECTIONS. Buyer shall use reasonable
efforts during the twelve (12) month period immediately following the Closing to
collect and promptly remit to Seller rents or other amounts due Seller for the
period prior to Closing. Buyer shall apply all rents or other amounts received
by Buyer, first for the account of Buyer for amounts currently due to Buyer;
second to reimburse Buyer for costs and attorneys' fees; third to Seller for any
and all amounts due Seller for periods prior to Closing; and the balance to be
retained by Buyer. Buyer shall not be obligated to initiate any lawsuit against
tenants to collect unpaid rents applicable to the period prior to Closing.
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11. CLOSING DOCUMENTS.
11.1 SELLER'S DELIVERIES. Conditioned upon performance by
Buyer hereunder, Seller shall execute and deliver to Buyer at Closing the
following documents ("Seller's Closing Documents"):
11.1.1 DEED. a special warranty deed conveying
marketable title to the Land and the Improvements subject to the Permitted
Exceptions;
11.1.2 XXXX OF SALE. a xxxx of sale, assigning and
transferring to Buyer all of the right, title, and interest of Seller in and to
the Personal Property;
11.1.3 ASSIGNMENT OF LEASES. (i) the Leases which
are still in effect as of Closing and any new Leases entered into pursuant to
Section 7.3 (ii) a current listing of any tenant security deposits and prepaid
rents held by Seller with respect to the Property; and (iii) an assignment of
such Leases and security deposits, which will include an indemnification by
Seller of Buyer for all landlord obligations accruing prior to the Date of
Closing;
11.1.4 ASSIGNMENT OF CONTRACTS. (i) copies of all
Contracts relating to the Property which Buyer has elected to assume or which
are not terminable by Seller on or before the Date of Closing; and (ii) an
assignment of such Contracts, which will include an indemnification by Seller of
Buyer for all owner obligations accruing prior to the Date of Closing;
11.1.5 NON-FOREIGN CERTIFICATE. a certification
that Seller is not a non-resident alien (a foreign corporation, partnership,
trust, or estate as defined in the Internal Revenue Code and Treasury
Regulations promulgated thereunder);
11.1.6 ASSIGNMENT OF WARRANTIES AND GUARANTIES. an
assignment of all transferable warranties and guaranties then in effect, if any,
with respect to the Improvements or any repairs or renovations to such
Improvements and the Personal Property being conveyed hereunder;
11.1.7 BOOKS AND RECORDS. all books and records
held at the Property by or for the account of Seller (other than any privileged,
proprietary or confidential records), including without limitation plans and
specifications and lease applications, as available and
11.1.8 OWNER'S AFFIDAVIT. an owner's affidavit and
such other similar documents as are reasonably required from Seller pursuant to
the Title Commitment as a condition precedent to the issuance of an owner's
title insurance policy pursuant to the terms thereof.
11.2 BUYER'S DELIVERIES. Conditioned upon performance by
Seller hereunder, Buyer shall execute and deliver to Seller at Closing the
following documents ("Buyer's Closing Documents"):
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11.2.1 ASSUMPTION OF LEASES. an assumption of the
Leases and security deposits, which will include an indemnification by Buyer of
Seller for all landlord obligations accruing on or after the Date of Closing and
an indemnification by Seller of Buyer for all landlord obligations accruing
prior to the Date of Closing; and
11.2.2 ASSUMPTION OF SERVICE CONTRACTS. an
assumption of the Contracts which Buyer has elected to assume, which will
include an indemnification by Buyer of Seller for all owner obligations accruing
on or after the Date of Closing.
11.3 OTHER CLOSING DOCUMENTS. Each party shall deliver to
the other party or the Title Company such duly executed and acknowledged or
verified certificates, affidavits, and other usual closing documents respecting
the power and authority to perform the obligations hereunder and as to the due
authorization thereof by the appropriate corporate, partnership, or other
representatives acting for it, as counsel for the other party or the Title
Company may reasonably request.
11.4 CLOSING DOCUMENTS. Seller's Closing Documents,
Buyer's Closing Documents and the documents to be delivered pursuant to Section
11.3 hereof shall hereinafter be referred to as the "Closing Documents".
12. COSTS. Buyer shall pay all settlement expenses, except as set
forth in the following sentence, in connection with the transfer of the
Property, including, but not limited to, personal property sales taxes, if any,
recording fees, Buyer's attorneys' fees, the costs of obtaining a binder or
commitment from a title insurance company, the premium for Buyer's title
insurance policy, the cost of the Survey, and all other costs and expenses
incidental to or in connection with closing this transaction. Seller shall pay
the real estate transfer taxes and the attorneys' fees, if any, incurred by
Seller in connection with this transaction, and the Broker's commission, but
only if, as, and when the transaction contemplated hereby is fully consummated
and the deed is recorded and the full consideration therefor has been received
by Seller.
13. CASUALTY OR CONDEMNATION. In the event that prior to the Date
of Closing either the Improvements are damaged or destroyed, in whole or in
part, by fire or other cause, or any portion of the Land or the Improvements
becomes the subject of a condemnation proceeding by a public or quasi-public
authority having the power of eminent domain, then either (a) the parties shall
proceed with the transaction contemplated herein, in which event Buyer shall be
entitled to receive any insurance proceeds or condemnation awards, including the
payment of any deductible, or (b) in the event such damage, destruction, or
condemnation involves, in the reasonable estimation of Seller, a loss in an
amount in excess of $500,000.00, or loss of all or a material portion of access
to the Property, either party, at its option, may terminate this Agreement by
notice to the other within ten (10) days of Buyer's receipt of Seller's notice
of such damage or proceeding, in which case the Deposit shall be refunded, and
thereafter neither party shall have any further obligation or liability to the
other by virtue of this Agreement, except as otherwise expressly provided
herein.
14. INSURANCE. Seller shall not be obligated to assign to Buyer
any fire, hazard, or liability insurance policies which it holds respecting the
Property, and Seller
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shall have the right to any and all refunds or rebates resulting from the
termination of such policies.
15. BROKER'S COMMISSION. Buyer and Seller each hereby warrants and
represents to the other that it has dealt with no broker or finder in connection
with this transaction except Welsh Companies ("the Broker"), and that it is not
affiliated with the Broker in any way. Buyer and Seller each hereby agrees to
indemnify and hold the other harmless from and against any and all claims for
brokerage or finder's fees or other similar commissions or compensation made by
any and all other brokers or finders claiming to have dealt with the
indemnifying party in connection with this Agreement or the consummation of the
transaction contemplated hereby. The obligations in this Section shall survive
the Closing or the termination of this Agreement for any reason, including
without limitation pursuant to Section 5.3.2, 9.1, or 13 hereof.
16. SELLER'S PERFORMANCE. The acceptance of Seller's Closing
Documents by Buyer shall be deemed to be a full performance and discharge of
every agreement and obligation of Seller herein contained and expressed, except
such as are, by the terms hereof, to be performed after the delivery of said
instruments.
17. RECORDING PROHIBITED. This Agreement shall not be recorded in
any Registry of Deeds or other office or place of public record. If Buyer shall
record this Agreement or cause or permit the same to be recorded, Seller may, at
its option, elect to treat such act as a default by Buyer under this Agreement.
18. REMEDIES.
18.1 If Seller defaults under this Agreement, Buyer's sole
remedy, at law or in equity, shall be one of either (a) the return of the
Deposit to Buyer, whereupon the obligations of Seller under this Agreement shall
terminate; or (b) the right to obtain specific performance of Seller's
obligation to convey the Property pursuant to this Agreement, provided that in
no event shall Seller be obliged to undertake any of the following: (i) change
the condition of the Property or restore the same after any fire or casualty;
(ii) expend money or post a bond to remove or insure over a title defect or
encumbrance or to correct any matter shown on a survey of the Property; (iii)
secure any permit, approval, or consent with respect to the Property or Seller's
conveyance, or (iv) cure defects objected to by Buyer pursuant to Section 5.3.1
hereof. In no event shall any officer, director, employee, agent, or
representative of Seller have any personal liability in connection with this
Agreement or transaction.
18.2 If Buyer defaults under this Agreement, the sole
remedy of Seller shall be to retain the Deposit, which sum the parties fix and
settle as liquidated damages for such default of Buyer.
18.3 Nothing in this Section 18 shall limit the express
provisions of this Agreement obligating one party hereto to indemnify the other
or to restore the Property, including without limitation Sections 6.2 and 24
hereof.
18.4 In any action to enforce the provisions of this
Agreement, the prevailing party shall be entitled to an award of its attorneys'
fees and costs.
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19. ASSIGNMENT. This Agreement may not be assigned by Buyer
without the express written consent of Seller, which consent Seller may in its
sole discretion withhold, except that Buyer may, without Seller's consent,
assign this Agreement to a limited partnership of which Buyer (or a principal of
Buyer) or any parent or any wholly owned subsidiary of Buyer is the sole general
partner or holds a majority of the ownership interest, or to a limited liability
company of which Buyer (or a principal of Buyer) or any parent or any wholly
owned subsidiary of Buyer is the sole manager or holds a majority of the
ownership interest. No such assignment shall operate to relieve Buyer from any
obligation hereunder.
20. WAIVER. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding breach
of any other agreement or provision herein contained. No extension of time for
the performance of any obligation or act shall be deemed an extension of time
for the performance of any other obligation or act.
21. TIME. It is agreed that time is of the essence of this
Agreement.
22. GOVERNING LAW. This Agreement shall be construed under the
laws of the state in which the Property is located.
23. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and sent by overnight delivery service (such as
Federal Express), in which case notice shall be deemed given on the day after
the date sent, or by personal delivery, in which case notice shall be deemed
given on the date received, or by certified mail, in which case notice shall be
deemed given three (3) days after the date sent, or by fax (with copy by
overnight delivery service), in which case notice shall be deemed given on the
date sent, to the appropriate address indicated below or at such other place or
places as either Buyer or Seller may, from time to time, respectively, designate
in a written notice given to the other in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: File No. ______________
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000 or 3866
Telephone No.: (000) 000-0000
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With Copy To: Xxxx Xxxxxxx Life Insurance Company
Law Department (T-50)
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: File No. _________________________
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000 or 9269
Telephone No.: (000) 000-0000
To Buyer: Mission Mountain LLC
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
______________________________________
Fax No.: _____________________________
Telephone No.: _______________________
With Copy To: Xxxxxx X. Xxxx
Winthrop & Weinstine
3200 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Fax No.: _____________________________
Telephone No.: 000-000-0000
24. CONFIDENTIALITY. Buyer shall not disclose the financial and
economic terms and conditions of the transaction contemplated herein except as
may be necessary in the ordinary course of its business. All press releases or
other dissemination of information to the media, or responses to requests from
the media, for information relating to the transaction contemplated herein shall
be subject to the prior written approval of Seller; provided that, following the
Closing, Seller's approval shall not be unreasonably withheld or delayed. The
obligations in this Section 24 shall survive the Closing or termination of this
Agreement for any reason.
25. ENTIRE AGREEMENT. This instrument, executed in duplicate, sets
forth the entire agreement between the parties and may not be canceled,
modified, or amended except by a written instrument executed by both Seller and
Buyer.
26. COUNTERPARTS. This Agreement may be executed and delivered in
any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same
instrument.
-15-
16
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: XXXX XXXXXXX REALTY EQUITIES, INC.,
a Massachusetts corporation
BY:
------------------------------------
------------------------------------
(name) (title)
BUYER:
MISSION MOUNTAIN, LLC
BY:
----------------------------------------
----------------------------------------
(name) (title)
EXHIBITS:
1.1.1 - Legal Description
1.1.6 - Schedule of Leases
1.1.7 - Schedule of Contracts
-16-
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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into this 24th day of July, 2000, by and between XXXX
XXXXXXX REALTY INCOME-II LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("Seller") and WELSHINVEST ACQUISITIONS, LLC, a Delaware limited
liability company formerly known as Mission Mountain, LLC ("Buyer").
WHEREAS, Seller and Buyer previously have entered into that certain
Purchase and Sale Agreement dated June 9, 2000 (the "Purchase Agreement")
relating to certain real property named Park Square Shopping Center located in
Brooklyn Park, Minnesota; and
WHEREAS, pursuant to Section 5.3.1 of the Purchase Agreement, the
"Approval Date" is July 24, 2000; and
WHEREAS, the parties have agreed to extend both the Approval Date and
the "Date of Closing" (as defined in the Purchase Agreement) by two (2) weeks.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby amend the
Purchase Agreement as follows:
1. EXTENSION OF APPROVAL DATE. The Approval Date under the
Purchase Agreement is hereby extended to August 7, 2000.
2. EXTENSION OF DATE OF CLOSING. The Date of Closing shall be
August 29, 2000, unless Buyer and Seller shall otherwise agree in writing.
3. REPRESENTATIONS AND WARRANTIES. Section 8.1.1 of the Purchase
Agreement is hereby amended by deleting the words "an insurance company" in the
first line thereof and by substituting therefor the words "a limited
partnership."
4. EFFECT ON PURCHASE AGREEMENT. Except to the extent revised
hereby, all of the terms and conditions of the Purchase Agreement shall continue
in full force and effect.
5. COUNTERPART EXECUTION; EFFECTIVENESS. This Amendment may be
executed in counterparts, each of which shall be deemed an original but all of
which, taken together, shall constitute one and the same instrument.
18
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above stated.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: XXXX XXXXXXX REALTY EQUITIES, INC.,
a Massachusetts corporation
By:
------------------------------------------------
Its: President
BUYER
WELSHINVEST ACQUISITIONS, LLC
By
-----------------------------------------------------
Its -------------------------------------------------
2
19
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into effective as of the 7th day of August, 2000, by and
between XXXX XXXXXXX REALTY INCOME-II LIMITED PARTNERSHIP, a Massachusetts
limited partnership ("Seller") and WELSHINVEST ACQUISITIONS, LLC, a Delaware
limited liability company ("Buyer").
WHEREAS, Seller and Buyer previously entered into that certain Purchase
and Sale Agreement dated June 9, 2000 relating to certain real property commonly
known as the Park Square Shopping Center located in Brooklyn Park, Minnesota, as
amended by a certain First Amendment to Purchase and Sale Agreement dated July
24, 2000 between Buyer and Seller (collectively, the "Purchase Agreement"); and
WHEREAS, pursuant to the above-referenced First Amendment to Purchase
and Sale Agreement, the "Approval Date" was extended to August 7, 2000; and
WHEREAS, the parties wish to further extend the Approval Date to August
11, 2000.
NOW, THEREFORE, in consideration of the Recitals, which are hereby made
a part hereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. EXTENSION OF APPROVAL DATE. The Approval Date under the
Purchase Agreement is hereby extended to August 11, 2000.
2. CLOSING DATE. The Date of Closing under the Purchase Agreement
shall remain August 29, 2000, unless Buyer and Seller otherwise agree in
writing.
3. EFFECT ON PURCHASE AGREEMENT. Except as otherwise expressly
amended hereby, all of the terms and conditions of the Purchase Agreement shall
continue in full force and effect.
4. COUNTERPART. This Second Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
20
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above stated.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: XXXX XXXXXXX REALTY EQUITIES, INC.,
a Massachusetts corporation
By:
------------------------------------------------
Its: President
BUYER
WELSHINVEST ACQUISITIONS, LLC
By
-----------------------------------------------------
Its -------------------------------------------------
2
21
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into effective as of the 10th day of August, 2000, by and
between XXXX XXXXXXX REALTY INCOME-II LIMITED PARTNERSHIP, a Massachusetts
limited partnership ("Seller") and WELSHINVEST ACQUISITIONS, LLC, a Delaware
limited liability company ("Buyer").
WHEREAS, Seller and Buyer previously entered into that certain Purchase
and Sale Agreement dated June 9, 2000 relating to certain real property commonly
known as the Park Square Shopping Center located in Brooklyn Park, Minnesota, as
amended by (i) a certain First Amendment to Purchase and Sale Agreement dated
July 24, 2000, and (ii) a certain Second Amendment to Purchase and Sale
Agreement dated as of August 7, 2000, each by and between Buyer and Seller
(collectively, the "Purchase Agreement"); and
WHEREAS, pursuant to the above-referenced Second Amendment to Purchase
and Sale Agreement, the "Approval Date" was extended to August 11, 2000; and
WHEREAS, the parties wish to further extend the Approval Date to August
16 2000.
NOW, THEREFORE, in consideration of the Recitals, which are hereby made
a part hereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. EXTENSION OF APPROVAL DATE. The Approval Date under the
Purchase Agreement is hereby extended to August 16, 2000.
2. CLOSING DATE. The Date of Closing under the Purchase Agreement
shall remain August 29, 2000, unless Buyer and Seller otherwise agree in
writing.
3. EFFECT ON PURCHASE AGREEMENT. Except as otherwise expressly
amended hereby, all of the terms and conditions of the Purchase Agreement shall
continue in full force and effect.
4. COUNTERPART. This Third Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
22
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above stated.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: XXXX XXXXXXX REALTY EQUITIES, INC.,
a Massachusetts corporation
By:
------------------------------------------------
Its: Vice President
BUYER
WELSHINVEST ACQUISITIONS, LLC
By
-----------------------------------------------------
Its
-------------------------------------------------
2
23
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into effective as of the 16th day of August, 2000, by and
between XXXX XXXXXXX REALTY INCOME-II LIMITED PARTNERSHIP, a Massachusetts
limited partnership ("Seller") and WELSHINVEST ACQUISITIONS, LLC, a Delaware
limited liability company ("Buyer").
WHEREAS, Seller and Buyer previously entered into that certain Purchase
and Sale Agreement dated June 9, 2000 relating to certain real property common
known as the Park Square Shopping Center located in Brooklyn Park, Minnesota, as
amended by (i) a certain First Amendment to Purchase and Sale Agreement dated
July 24, 2000, (ii) a certain Second Amendment to Purchase and Sale Agreement
dated as of August 7, 2000, and (iii) a certain Third Amendment to Purchase and
Sale Agreement dated as of August 10, 2000, each by and between Buyer and Seller
(collectively, the "Purchase Agreement"); and
WHEREAS, the parties desire to amend the Purchase Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. REDUCTION OF PURCHASE PRICE. The Purchase Price under the
Purchase Agreement is hereby reduced from $8,025,000.00 to $6,500,000.00.
Hereafter, all references in the Purchase Agreement to the "Purchase Price"
shall be deemed to mean the Purchase Price as herein amended.
2. TITLE AND SURVEY. Provided that Seller delivers to Buyer at
closing the following: (a) an affidavit sufficient to enable Chicago Title
Insurance Company to delete the standard exceptions set forth at Item Nos. 2, 3
(except for tenants under unrecorded leases), 4, 5 and 6 of Schedule B of the
title commitment (File No. 2498452); (b) a statement from Seller that to its
actual knowledge, either the City of Brooklyn Park has not required the
connection of the water pipes on Parcel A with the water pipes on Parcel B
pursuant to Easement Document No. 5251491, or if Seller has actual knowledge
that the City of Brooklyn Park has required such a connection, that there are no
outstanding costs related to such connection; (c) a statement from the Seller
that, to its actual knowledge, it has received no notices of default in the
performance of any obligations under Easement Document No. 5582918; Buyer hereby
waives its objections to title and survey made pursuant to the Purchase
Agreement.
24
3. CONDITION OF REAL PROPERTY AND TENANCIES. Buyer acknowledges
that the physical condition of the Property is satisfactory to Buyer as of the
date of this Amendment. Subparagraph 9.3B of the Purchase Agreement is hereby
amended so that as amended said subparagraph shall read as follows:
"There shall be, as of the Closing Date, no material adverse change in
the physical condition of the Real Property from its condition as of
the Approval Date, and no "Material Occupancy Change." For purposes
hereof, the term "Material Occupancy Change" shall mean a reduction in
the total amount of rented square footage within the buildings which
constitute part of the Property by more than five percent (5%) of the
amount of such square footage which, as of the Approval Date, has been
under lease with tenants. Provided Closing occurs on or before August
29, 2000, a "Material Occupancy Change" shall be determined without
reference to the square footage covered by the Rainbow Foods and
Fashion Bug leases."
4. CLOSING DATE. The Date of Closing under the Purchase Agreement
shall remain August 29, 2000, unless Buyer and Seller otherwise agree in
writing.
5. DEFINITIONS. Unless otherwise defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Purchase
Agreement.
6. EFFECT ON PURCHASE AGREEMENT. Except as otherwise expressly
amended hereby, all of the terms and conditions of the Purchase Agreement and
shall continue in full force and effect.
7. COUNTERPART. This Fourth Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which,
taken together, shall constitute one and the same instrument.
2
25
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above stated.
SELLER:
XXXX XXXXXXX REALTY INCOME FUND-II LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: XXXX XXXXXXX REALTY EQUITIES, INC.,
a Massachusetts corporation
By:
------------------------------------------------
Its: Vice President
BUYER
WELSHINVEST ACQUISITIONS, LLC
By
-----------------------------------------------------
Its -------------------------------------------------
3
