Exhibit 10.9
AGREEMENT
BANK OF AMERICA, N.A.
("Seller")
and
AMERICAN FINANCIAL RESOURCE GROUP, LLC
("Purchaser")
DATED: NOVEMBER 22, 2000
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ......................................................... 1
1. DEFINED TERMS ................................................................. 1
2. TERM OF AGREEMENT ............................................................. 3
3. SALE AND PURCHASE OF CLOSED PROPERTIES ........................................ 4
4. CLOSED PROPERTIES - REAL AND PERSONAL ASSETS .................................. 4
5. CLOSED FEE PROPERTIES PRICE; PROCEDURE FOR DETERMINATION ...................... 5
6. ADDITIONAL PURCHASE PRICE PAYMENT ON RESALE OF CLOSED FEE PROPERTIES .......... 6
7. CLOSED LEASEHOLD PROPERTIES; ASSUMPTION PAYMENT ............................... 8
8. SETTLEMENT .................................................................... 10
9. TITLE ......................................................................... 11
10. SERVICE AND MAINTENANCE CONTRACTS ............................................. 13
11. DOCUMENTS TO BE DELIVERED BY SELLER AT SETTLEMENT ............................. 13
12. DOCUMENTS TO BE DELIVERED BY PURCHASER AT SETTLEMENT .......................... 14
13. POSSESSION .................................................................... 15
14. ADJUSTMENTS ................................................................... 15
15. EXPENSES ...................................................................... 16
16. DEFAULT ....................................................................... 16
17. RISK OF LOSS .................................................................. 17
18. BROKERS ....................................................................... 18
19. CLOSED PROPERTIES "AS-IS." .................................................... 18
20. DISCLAIMER .................................................................... 18
21. DUE DILIGENCE PERIOD; PURCHASER'S ACCESS TO CLOSED PROPERTIES ................. 21
22. NOTICES AND ASSESSMENTS: TAX APPEALS .......................................... 23
23. NOTICES ....................................................................... 23
24. NO SURVIVAL ................................................................... 23
25. FURTHER ASSURANCES ............................................................ 23
26. DEPOSIT ....................................................................... 24
27. MISCELLANEOUS ................................................................. 24
28. PURCHASER'S REPRESENTATIONS ................................................... 27
29. SELLER'S REPRESENTATIONS ...................................................... 27
30. INDEMNIFICATION ............................................................... 28
31. CONFIDENTIALITY ............................................................... 29
32. NO OFFER ...................................................................... 29
33. NO LIABILITY .................................................................. 29
-i-
AGREEMENT
THIS AGREEMENT ("Agreement"), made this November 22, 2000, between BANK OF
AMERICA, N.A., a national banking association, having an address at
NC1-007-52-02, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000
("Seller") and AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware limited
liability company, having an address at 0000 Xxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 ("Purchaser").
Preliminary Statement
WHEREAS, Seller owns various properties (individually, a "Fee Property,"
and collectively, the "Fee Properties," as hereinafter described) located in the
Designated Territory (as hereinafter defined); and
WHEREAS, Seller owns various leasehold estates (individually, a "Leasehold
Property" and collectively, the "Leasehold Properties," as hereinafter
described), located in the Designated Territory; and
WHEREAS, Seller desires to sell to Purchaser those Fee Properties that
Seller, in its sole and absolute discretion, has determined or may determine to
be surplus properties and transfer to Purchaser (by way of assignment) those
Leasehold Properties that Seller, in its sole and absolute discretion, has
determined or may determine to be surplus properties on an ongoing basis, and
Purchaser desires to purchase such Fee Properties and assume Seller's leasehold
interests in such Leasehold Properties from Seller on an ongoing basis, all on
the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), Seller and Purchaser, intending
to be legally bound hereby, agree as follows:
1. Defined Terms. The following terms shall have the meanings set forth
below when used in this Agreement:
(a) "Bank Branch Property" means a Fee Property or a Leasehold Property
that is configured to operate, without material modification, as a bank branch
and contains a teller counter, vault, safe deposit boxes (unless removed by
Seller as permitted by Section 3 hereof) and other customary bank branch
installations and equipment. A Fee Property or a Leasehold Property shall not
qualify as a Bank Branch Property unless at least 25% of its gross building area
is used or is readily usable without material modification for direct bank
branch operations.
(b) "Closed Fee Properties" means those surplus Fee Properties within
the Designated Territory (except for "Excluded Properties") that Seller, in
Seller's sole and absolute discretion, has previously closed or determines from
time to time to close and/or dispose of during the term of this Agreement.
(c) "Closed Leasehold Properties" means those surplus Leasehold
Properties within the Designated Territory (except for "Excluded Properties")
that Seller, in Seller's sole and absolute discretion, has previously closed or
determines from time to time to close and/or dispose of during the term of this
Agreement.
(d) "Closed Properties" means those Closed Fee Properties and Closed
Leasehold Properties within the Designated Territory that Seller becomes
obligated to sell and/or assign to Purchaser, and Purchaser becomes obligated to
purchase and/or assume from Seller, during the term of this Agreement. A Fee
Property or a Leasehold Property shall not become a Closed Property unless and
until, if ever, Seller has issued a Closed Property Designation Notice (as
defined below) with respect to the same.
(e) "Closed Property Designation Notice" means a written designation by
Seller of a Fee Property or Leasehold Property as a Closed Property and which
sets forth, at a minimum, (i) the location and street address of the Closed
Property, (ii) whether the Closed Property is a Fee Property or a Leasehold
Property, (iii) whether or not the Closed Property is a Bank Branch Property and
(iv) the actual or anticipated Operations Closing Date (as hereinafter defined)
for the Closed Property or, if Seller desires to continue business operations at
the Closed Property after Settlement (as hereinafter defined) with Purchaser
thereon, Seller's proposed terms and conditions for such continued use and
occupancy.
(f) "Closed Property Notification Date" means as to any Fee Property and
any Leasehold Property the date on which Seller notifies Purchaser of Seller's
designation of such Fee Property or Leasehold Property as a Closed Property by
giving Purchaser a Closed Property Designation Notice with respect to such Fee
Property or Leasehold Property.
(g) "Designated Territory" means Virginia, Maryland, District of
Columbia, North Carolina, South Carolina, Georgia, Tennessee, Florida, Texas,
New Mexico, Illinois, Missouri, Iowa, Arkansas, Oklahoma and Kansas.
(h) "Excluded Properties" means surplus Fee Properties and surplus
Leasehold Properties that are in one or more of the following categories:
(i) properties that Seller is required to dispose of by any
applicable governmental law or regulation;
(ii) properties that Seller elects to dispose of to another
financial institution as an operating bank branch with customer deposits;
(iii) properties that Seller at any time elects (even after
designation as a
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Closed Property) to continue to use itself;
(iv) properties that Seller at any time elects (even after
designation as a Closed Property) to convey or lease to an affiliate of Seller
for use by such affiliate;
(v) properties in which Seller has a leasehold interest with
seven years or less of remaining term, including unexercised renewals;
(vi) properties that Seller elects to convey or lease to someone
other than Purchaser after a Closed Property Designation Notice has been issued
by Seller, provided that (A) such right to designate shall be exercised, if at
all, on or before the 30th day following the Closed Property Notification Date,
(B) Seller may not identify more than two Closed Properties per state in the
Designated Territory in any given calendar year (with any partial calendar years
during which the term of this Agreement shall commence or terminate being
considered as a full calendar year for the purposes of this provision and
provided further that Seller may carry over any unused exclusions from year to
year), (C) Seller shall reimburse Purchaser for Purchaser's actual, reasonable,
out-of-pocket costs and expenses (to the extent documented, to Seller's
reasonable satisfaction, by copies of paid invoices and bills and cancelled
checks) for all title, survey, environmental, structural analysis and other
physical conditions investigative costs incurred by Purchaser with respect to
such Excluded Properties, and (D) copies of any title, survey and other due
diligence reports and evaluations for such Excluded Properties obtained by
Purchaser shall be delivered to Seller, without representation or warranty and
with a disclaimer of reliance;
(vii) Fee Properties or Leasehold Properties that are not Bank
Branch Properties, unless Purchaser, within 15 business days following the
Closed Property Notification Date therefor, notifies Seller in writing of
Purchaser's election to acquire such non-Bank Branch Properties as Closed
Properties (the date on which Purchaser so notifies Seller of Purchaser's
election to acquire a non-Bank Branch Property, the "Purchaser Acceptance
Date"); or
(viii) properties for which Seller has not issued a Closed Property
Designation Notice.
(i) "Operations Closing Date" means the date on which Seller ceases its
business operations at a Closed Property.
2. Term of Agreement. The term of this Agreement shall commence on the date
hereof and shall expire on December 31, 2002. Thereafter, the Term shall
continue on a year to year basis, subject to a right by either party to
terminate this Agreement at any time, without cause, upon 90 days prior written
notice to the other. Either party may terminate this Agreement at any time for
cause in accordance with the provisions contained in Section 16 hereof.
Purchaser shall
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have the right and obligation as herein expressed to acquire all Fee Properties
and Leasehold Properties within the Designated Territory (other than Excluded
Properties) that become Closed Properties prior to the expiration or earlier
termination of the term of this Agreement.
3. Sale and Purchase of Closed Properties. On the terms and conditions
hereinafter provided, Seller shall convey and/or assign to Purchaser, and
Purchaser shall acquire from Seller, Seller's right, title and interest in and
to all Fee Properties and Leasehold Properties (other than Excluded Properties)
that become Closed Fee Properties and Closed Leasehold Properties during the
term of this Agreement, but not thereafter, provided that Purchaser shall not be
obligated to acquire, nor shall Seller be obligated to sell, any (i) Closed
Leasehold Properties withdrawn from this Agreement because Purchaser and Seller
are unable to obtain a required Landlord's Consent (as hereinafter defined) as
expressed in Section 7(c) hereof, (ii) Closed Fee Properties or Closed Leasehold
Properties withdrawn from this Agreement because Seller elects not (or otherwise
fails) to either perform or authorize a Phase II Study (as hereinafter defined)
or remediate an identified environmental condition as expressed in Section 21(b)
below or (iii) Closed Fee Properties withdrawn from this Agreement because
Seller elects not to pay the repair or restoration costs in excess of the
Individual Repair Threshold (as hereinafter defined) as expressed in Section
21(c) hereof. Within 30 days following the Closed Property Notification Date for
a Closed Property, Seller and Purchaser shall execute an addendum to this
Agreement, identifying the subject property and confirming the Closed Property
Notification Date, Operations Closing Date, Settlement Date (as hereinafter
defined) and such other dates and periods of time as may be readily determined
once the Closed Property Notification Date has been established and, as to each
Bank Branch Property, whether or not Seller intends to remove the safe deposit
boxes from such Bank Branch Property at or prior to Settlement and whether or
not Seller desires to impose a Permanent Use Restriction (as hereinafter
defined) and the applicable term thereof. The Addendum shall be in substantially
the form attached hereto as Exhibit A. Failure or refusal by either party to
execute the Addendum shall not affect or modify any of the rights and
obligations of the parties as provided in this Agreement. Purchaser acknowledges
that Seller has no obligation to designate a minimum number of Closed Properties
during the term of this Agreement.
4. Closed Properties - Real and Personal Assets.
(a) The term "Closed Property" shall mean Seller's fee or leasehold
interest in all those certain identified tracts or parcels of land ("Parcels")
with the buildings ("Buildings"), and all other improvements erected on the
Parcels and fixtures and equipment attached thereto, including, without
limitation, the existing teller counters, drive-through facilities and
equipment, safe deposit boxes (unless removed by Seller as permitted by Section
3 hereof), bank vaults and the wiring for the security systems, and all
building, plans, licenses and permits to the extent transferrable, and
warranties and guaranties to the extent transferable, together with all rights,
privileges, tenements, hereditaments, rights of way, easements, appendages and
appurtenances of such land. Excluded as part of a Closed Property are the
following: (a) the Automated Teller Machine ("ATM") machines connected to or
located within the Buildings or situated as freestanding structures on the
Parcels, (b) alarms and security equipment, telecommunication
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equipment, computers, computer terminals and computer equipment, supplies,
documents, records, cash, coin and signage (including pylons, but excluding
pylon base poles and foundations), (c) any office equipment (whether leased or
owned) located in the Buildings including, without limitation, furniture,
furnishings and artwork, and (d) any personal property belonging to any tenant
occupying any portion of the Closed Property.
(b) Prior to the Settlement Date for each Closed Fee Property, Seller
and Purchaser shall identify any and all fixtures, equipment and other personal
property included as part of such Closed Fee Property (collectively, "Personal
Property") and allocate a portion of the Purchase Price (as hereinafter defined)
for such Closed Fee Property to the value of the Personal Property. If the
parties cannot agree upon an appropriate allocation, they shall retain Price
Waterhouse Consulting or another qualified consultant agreed to by Seller and
Purchaser to advise them as to the proper allocation of the Purchase Price. The
cost of the allocation and valuation report shall be divided equally by Seller
and Purchaser.
(c) If so requested by Seller, Purchaser shall permit Seller to install,
maintain and operate, at Seller's sole cost and expense (but without the payment
of any rent, fees or other charges, other than the cost of electricity and other
utilities, if any, consumed by Seller in connection with its ATM operations), an
ATM at each Closed Property from and after the Settlement Date therefor so long
as the same does not materially interfere, in Purchaser's sole discretion, with
Purchaser's alteration, renovation or use of the Closed Property and/or is not
objected to by any person to whom Purchaser sells, leases or subleases the
Closed Property in such person's sole discretion. Seller's rights, and
Purchaser's obligations, under this Section 4(c) shall end upon the expiration
or sooner termination of the term of this Agreement.
5. Closed Fee Properties Price; Procedure for Determination. The purchase
price ("Purchase Price") of each Closed Fee Property shall be 97% of the Fair
Market Value ("FMV") of such property, established by an appraisal valuation
("Appraisal") made as described below by Price Waterhouse Coopers or such other
qualified, independent appraiser agreed to by Seller and Purchaser (the
"Appraiser"). The Appraisal shall be certified to Seller and Purchaser and shall
be in substantially the form attached hereto as Exhibit B. The cost of the
Appraisal shall be paid by Seller.
(a) The FMV of a Closed Fee Property that is a Bank Branch Property
shall be determined by an Appraiser instructed to value such Closed Fee Property
for both its (i) continued bank use and (ii) highest and best use other than
continued bank use, except that for a Bank Branch Property that is also a Deed
Restricted Property (as hereinafter defined), the Appraiser shall be instructed
to value such Deed Restricted Property only pursuant to clause (ii) above. The
continued bank use valuation described in clause (i) above shall be adjusted to
take into account the temporary loss of use and income during the Dark Period
(as hereinafter defined), if any. The highest and best use other than continued
bank use valuation described in clause (ii) above shall be adjusted to take into
account a cost factor, if any, for conversion of the existing building and other
improvements to non-bank use, provided, however, in no event shall the cost of
conversion include the complete
5
demolition of the existing building or the construction of a new building. For
Deed Restricted Properties, the valuation described in clause (ii) above also
shall be adjusted to take into account the effect on valuation, if any,
resulting from the imposition of the Permanent Use Restrictions. Except for Deed
Restricted Properties for which there is only one valuation, the FMV of a Closed
Fee Property that is a Bank Branch Property shall equal the average of the two
above described valuations.
(b) The FMV of a Closed Fee Property that is not a Bank Branch Property
shall be determined by an Appraiser instructed to value such Closed Fee Property
for its highest and best use. If the Appraiser determines that the highest and
best use is other than the current use, the valuation shall be adjusted to take
into account a cost factor, if any, for conversion of the existing building and
other improvements to such use.
(c) Within ten days following the Closed Property Notification Date for
a Closed Fee Property (or ten days following the Purchaser's Acceptance Date for
a Closed Fee Property that is not a Bank Branch Property), Purchaser shall
select an Appraiser in accordance with this Section 5 and order the Appraisal
for such property. Promptly following its receipt of same, Purchaser shall
submit an original of the completed Appraisal to Seller. If Purchaser fails to
select an Appraiser within such ten day period, Seller may, at any time
thereafter, select the Appraiser.
(d) Purchaser and Seller shall each have a period of 30 days following
Seller's receipt of the Appraisal to either reject or approve the FVM of the
Closed Fee Property as set forth in the Appraisal. If either party rejects the
FMV of the Closed Fee Property as set forth in an Appraisal, such party shall
during such 30 day period order, at its own expense, a re-appraisal
("Re-Appraisal") of the affected Closed Fee Property using the same methodology
and assumptions as required to be used for the Appraisal. If there is a
disparity between the Re-Appraisal and the Appraisal by an amount greater than
10% of the Appraisal, then the average of the two appraisals will prevail;
otherwise, the original appraised value will be considered as the FMV. If both
parties reject the value, then both parties shall within the 30 day period,
agree on and select a single appraiser to conduct the Re-Appraisal and the
expense of such Re-Appraisal shall be paid for in equal shares by the parties.
The Re-Appraisal amount shall be the final appraised value for such Closed Fee
Property.
6. Additional Purchase Price Payment on Resale of Closed Fee Properties.
Subject to the limitations hereinafter expressed, if Purchaser sells or enters
into a long term lease on a Closed Fee Property within two years following the
Settlement Date therefor (such two year period, the "Resale Period"), Purchaser
shall be obligated to promptly notify Seller and to pay to Seller a supplemental
purchase price payment for such Closed Fee Property ("Additional Purchase Price
Payment"), calculated as follows.
(a) If a Closed Fee Property is sold during the Resale Period for a Net
Adjusted Resale Price (as hereinafter defined) that is 130% or more of the Gross
Adjusted Purchase Price (as
6
hereinafter defined) paid by Purchaser to Seller for such Closed Fee Property,
Purchaser shall pay to Seller at the closing of such sale an Additional Purchase
Price Payment equal to 1/3 of the amount by which the Net Adjusted Resale Price
exceeds the Gross Adjusted Purchase Price for such Closed Fee Property.
(b) If a Closed Fee Property is leased during the Resale Period for a
net annual rental that is 12% or more of the Gross Adjusted Purchase Price paid
by Purchaser to Seller for such Closed Fee Property, Purchaser shall pay to
Seller at rent commencement under the lease an Additional Purchase Price Payment
equal to the lesser of (i) 10% of the FMV for such Closed Fee Property or (ii)
the product of (A) the net annual rental paid to Purchaser for such Closed Fee
Property minus 12% of the Gross Adjusted Purchase Price multiplied by (B) the
number of years (excluding renewals) in the initial term(s) of the lease(s)
entered into by Purchaser for such Closed Fee Property.
(c) "Gross Adjusted Purchase Price" shall mean the Purchase Price for a
Closed Fee Property decreased by the amount of any credits actually received by
Purchaser for structural or environmental conditions and increased by
Purchaser's actual, out-of-pocket due diligence and closing costs, including,
without limitation, title, survey, environmental, structural evaluation and
realty transfer tax costs, plus Purchaser's actual, out-of-pocket post-closing
expenditures for owning, operating, managing, leasing or selling the Closed Fee
Property, including, without limitation, all debt service (excluding principal
payments), real estate taxes, repairs (including capital repairs), improvements
(including tenant improvements), insurance and brokerage costs with respect to
such Closed Fee Property (but only until the date of closing for Closed Fee
Properties that are sold and only until the rent commencement date for Closed
Fee Properties that are leased), decreased by the amount of any rent and other
charges collected from tenants. "Net Adjusted Resale Price" shall mean the
purchase price for the sale of a Closed Fee Property decreased by the amount of
any credits and adjustments given the buyer and further decreased by the amount
of any brokerage commissions, realty transfer taxes and other normal and
customary closing charges paid by Purchaser as seller in connection therewith.
(d) Notwithstanding the foregoing, (i) if Seller is qualified to receive
an Additional Purchase Price Payment for both a sale and a lease of a single
Closed Fee Property as described above, Seller shall receive the greater of the
two Additional Purchase Price Payments, but not both, (ii) Seller shall not be
entitled to receive any Additional Purchase Price Payment for any lease of a
Closed Fee Property with an initial term of 60 months or less (unless and until
the tenant, by renewal, extension of term or otherwise, actually leases the
Closed Fee Property for more than 60 months) or which is subject to termination
by the tenant thereunder within the first 60 months of the term (unless and
until such termination right is no longer effective) and (iii) Seller shall not
be entitled to receive any Additional Purchase Price Payments with respect to
any sales or lease agreements entered into by Purchaser following the earlier to
occur of (A) the expiration of the Resale Period or (B) if this Agreement is
terminated by Seller (other than for cause), the last day of the term of this
Agreement. The provisions of this Section 6 shall survive the expiration or
earlier
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termination of this Agreement and the Settlement for each Closed Fee Property
and delivery of the Deed.
7. Closed Leasehold Properties; Assumption Payment. The liabilities for
each Closed Leasehold Property shall be transferred as set forth below:
(a) Within ten days following the Closed Property Notification Date for
a Closed Leasehold Property (or ten days following the Purchaser's Acceptance
Date for a Closed Leasehold Property that is not a Bank Branch Property), Seller
shall deliver to Purchaser a lease abstract (if available), a copy of the lease
and copies of any agreements, correspondence or other documents relating to the
Closed Leasehold Property that are in the possession or control of Seller.
(b) Within 30 days following the Closed Property Notification Date for a
Closed Leasehold Property (or ten days following the Purchaser's Acceptance Date
for a Closed Leasehold Property that is not a Bank Branch Property), Purchaser
and Seller shall mutually agree upon amount of the lease liability for the
Closed Leasehold Property, including, without limitation, all base rent, real
estate taxes, operating expenses and other amounts payable to the landlord of
each Closed Leasehold Property as rent or additional rent thereunder, but
excluding charges for utilities, after hours services and supplemental services
that are separately itemized and billed (such aggregate amount, the "Liability")
for the period commencing on the Settlement Date for such property and ending on
the last day of the existing term of the lease for such Closed Leasehold
Property, without giving effect to any unexercised renewal options (such period,
the "Remaining Lease Term"). In consideration of Purchaser's assumption of the
Liability for the Closed Leasehold Property for the Remaining Lease Term, Seller
shall pay to Purchaser at Settlement for the Closed Leasehold Property an amount
equal to 25% of the Liability for such property (such amount being referred to
as the "Discount") as follows. If Settlement for one or more Closed Fee
Properties occurs on the same Settlement Date as one or more Closed Leasehold
Properties, Purchaser shall receive a credit against the aggregate Purchase
Price for the Closed Fee Properties equal to the aggregate Discount for the
Closed Leasehold Properties having the same Settlement Date. If there are no
Settlements for Closed Fee Properties on the Settlement Date for the Closed
Leasehold Properties, or if the aggregate Discount for the Closed Leasehold
Properties exceeds the aggregate Purchase Price for the Closed Fee Properties,
Seller shall pay the excess of the Discount over the aggregate Purchase Price to
Purchaser at Settlement for the Closed Leased Properties by wire transfer of
funds to an account designated by Seller.
(c) Prior to the Settlement Date for a Closed Leasehold Property,
Purchaser shall use commercially reasonable efforts (but at no cost to Seller or
Purchaser) to obtain from the landlord of the Closed Leasehold Property (i) the
landlord's consent, if required under the lease, to Seller's assignment of the
lease to Purchaser, (ii) the landlord's consent, if required under the lease, to
Purchaser's further assignment or subleasing of the Closed Leasehold Property to
a third party user and (iii) the landlord's agreement, if required under the
lease, that Purchaser's indefinite cessation of operations at the Closed
Leasehold Property pending recommencement of same by a third party user will not
be a default under the lease (such consents and agreements being referred to
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collectively as the "Landlord's Consent"). Purchaser also may, if desired by
Purchaser, obtain an estoppel from the landlord stating that the underlying
lease is in full force and effect and that Seller as tenant is not in default
thereunder ("Landlord's Estoppel").
(d) Purchaser shall from time to time keep Seller advised regarding the
status of Purchaser's efforts to obtain the required Landlord's Consents. If by
the anticipated Settlement Date for a Closed Leasehold Property Purchaser has
not obtained the required Landlord's Consent for such Closed Leasehold Property,
Purchaser shall so notify Seller and indicate whether or not Purchaser needs
additional time to obtain the required Landlord's Consent. If Purchaser
indicates that it needs additional time to obtain the required Landlord's
Consent, the Settlement Date for such Closed Leasehold Property automatically
shall be extended for a period of 30 days. If Purchaser indicates that it does
not want additional time, or requests additional time but does not obtain the
required Landlord's Consent prior to the extended Settlement Date, the
Settlement Date for such Closed Leasehold Property automatically shall be
extended for a further period of 30 days to afford Seller time to obtain the
required Landlord's Consent, unless Seller notifies Purchaser of Seller's
election to withdraw the Closed Leasehold Property from this Agreement. If
during such 30 day period Seller is able to obtain a Landlord's Consent (at no
cost to Seller or Purchaser) from the landlord for a Closed Leasehold Property
that Purchaser was unable to obtain, the Discount for such Closed Leasehold
Property shall be reduced from 25% of the Liability to 17.5% of the Liability
for such Closed Leasehold Property. If Seller is not able to obtain the required
Landlord's Consent during such 30 day period, either Seller or Purchaser may at
any time thereafter withdraw the Closed Leasehold Property from this Agreement.
In the event of a withdrawal of a Closed Leasehold Property, Purchaser shall be
solely responsible for all of its due diligence and investigation costs and
other expenses incurred in connection therewith.
(e) If by the Settlement Date for a Closed Leasehold Property Purchaser
has not obtained a written release ("Seller Release") of Seller from all of
Seller's obligations as "Tenant" under the lease at the Closed Leasehold
Property, Purchaser shall deliver to Seller, one or more of the following at
Purchaser's election (but subject to Seller's approval, not to be unreasonably
withheld): (i) cash; or (ii) an irrevocable letter of credit issued by a
domestic bank reasonably acceptable to Seller; or (iii) a pledge and assignment
of money market, mutual fund or similar accounts acceptable to Seller or
certificates of deposit or other instruments of reasonable liquidity acceptable
to Seller, pursuant to pledge and assignment agreements and related UCC-1
financing statements satisfactory to Seller, in an amount ("Secured Liability
Amount") equal to 12 months' Liability determined pursuant to Section 7(b)
above. The Secured Liability Amount for a Closed Leasehold Property shall be
annually adjusted on or before January 15 of each calendar year based upon the
rents to be in effect under the lease for the Closed Leasehold Property for the
12-month period commencing January 1 of such year. Upon the earlier to occur of
(i) the expiration or earlier termination of the lease for a Closed Leasehold
Property or (ii) if and when Purchaser obtains a Seller Release for the Closed
Leasehold Property, then the amount of the Secured Liability Amount shall be
correspondingly reduced. If the Security Liability Amount is funded by a letter
of credit, such letter of credit shall be in substantially the form attached
hereto as Exhibit C-1; if the Secured Liability Amount is funded by a pledge and
assignment of accounts, certificates of deposit or other instruments, such
pledge and assignment agreement (together with related UCC-1 Financing
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Statements) shall be in substantially the form attached hereto as Exhibit C-2.
Purchaser shall pay all costs associated with the letter of credit and for the
filing of the UCC-1 Financing Statements. The provisions of this subparagraph
(e) shall survive the expiration or earlier termination of this Agreement. The
Secured Liability Amount posted by Purchaser for each Closed Leasehold Property
shall secure the liability and obligations of Purchaser under all Closed
Leasehold Properties hereunder.
(f) Seller shall hold and apply the Secured Liability Amount as security
for Purchaser's timely and complete performance of its obligations under the
leases assumed for the Closed Leasehold Properties, as follows:
(i) Seller may draw on the Secured Liability Amount upon the
happening of any of the following events:
(A) If from and after the Settlement Date, the landlord of a
Closed Leasehold Property has made demand on Seller for payment of rent and/or
other sums due from and after such Settlement Date under the lease for such
Closed Leasehold Property and/or has made demand on Seller for performance of
any of the covenants to be performed by the tenant under such lease from and
after such Settlement Date, in which event, Seller may draw on the Secured
Liability Amount without limit, in part or in whole, to the extent necessary, in
Seller's reasonable judgment, to satisfy the demand provided that before doing
so, Seller gives Purchaser 15 days' prior written notice of its intention to so
draw and during, such 15 day period Purchaser fails to provide Seller with
satisfactory evidence of payment of all monetary sums demanded and, if
applicable, written confirmation from the landlord under the lease of full
compliance with all non-monetary demands; or
(B) If Purchaser fails to deliver to Seller a replacement
instrument/security of Secured Liability Amount in proper form and amount at
least 15 days prior to the expiry date of the then current Secured Liability
Amount.
(g) In the event the Secured Liability Account is insufficient to
satisfy in full any liability of Seller under the lease for such Closed
Leasehold Property, Purchaser shall remain fully liable to Seller for any such
deficiency and shall pay the same to Seller on demand. The provisions of this
subparagraph (g) shall survive the expiration or earlier termination of this
Agreement and the Settlement for each Closed Leasehold Property and delivery of
the Lease Assignment and Assumption Agreement.
8. Settlement. The transfer of ownership of a Closed Fee Property and/or
the assignment and assumption of financial liability for a Closed Leasehold
Property ("Settlement") shall occur on the date ("Settlement Date") that is 30
days following the expiration of the Due Diligence Period (as hereinafter
defined) or, if later to occur and applicable, 30 days following
10
the Operations Closing Date for such Closed Property (subject to extension of
Settlement for specified Closed Properties pursuant to Sections 7(d), 9(e) and
21(b) hereof). All Settlements shall occur at the office of Xxxxxx, Xxxxx &
Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Pennsylvania, or at such other
place as Seller and Purchaser may mutually agree, commencing at 10:00 AM on the
Settlement Date.
9. Title.
(a) As to each Closed Fee Property, the title conveyed shall be good and
indefeasible and such as will be insured by any reputable title insurance
company at regular rates, free and clear of all liens, judgments and similar
encumbrances, subject however to:
(i) the state of facts shown on an accurate survey of the Closed
Fee Property, other than a matter which would constitute an Objection (as
hereinafter defined) that Purchaser does not waive pursuant to Section 9(c)
below;
(ii) zoning regulations, municipal building restrictions and all
other laws, ordinances, regulations and restrictions of any duly constituted
public authority enacted prior to the Settlement Date;
(iii) grants to governmental entities or to utility and/or power
companies, the right of the public in sidewalks and abutting public
rights-of-way, and easements given to the public for water course maintenance,
slope rights or sight rights;
(iv) the lien of current taxes and assessments not yet due and
payable;
(v) special taxes and assessments becoming a lien on or after the
Settlement Date;
(vi) if applicable, tenant leases, and any other leases of the
Closed Fee Property entered into with Purchaser's consent pursuant to Section
10(b) below;
(vii) standard exceptions set forth in the form of title insurance
policy of the title insurance company selected by Purchaser; and
(viii) any other matter which would constitute an Objection (as
hereinafter defined) that Purchaser waives pursuant to Section 9(c) below,
provided that with respect to any Monetary Objection (as hereinafter defined)
against Seller, same shall not constitute an Objection if
11
a title insurance company authorized to do business in the state in which the
affected Closed Fee Property is located agrees that it will insure title free of
such Monetary Objection or with affirmative insurance against the enforcement of
such Monetary Objection against the affected Closed Fee Property, and such
removal or affirmative coverage does not require Purchaser to defend an action
brought on any such judgment.
(b) The term "Objection" shall mean any matter shown on the survey
obtained by Purchaser or which would be shown on a current survey or any
covenant, easement, restriction or other title defect or encumbrance (including
any lien), other than the matters referred to in Section 9(a) above, which
renders title to the Closed Fee Property either unmarketable or uninsurable at
regular rates, materially reduces the value of the Closed Fee Property or
impairs or restricts its use for the uses contemplated by the Appraisal.
(c) As to each Closed Fee Property, Purchaser shall order, at
Purchaser's expense, a title commitment from a title insurance company
authorized to do business in the state in which such Closed Fee Property is
located and, if so desired by Purchaser, a survey. Purchaser shall deliver to
Seller a copy of the title commitment and, if applicable, survey for such Closed
Fee Property no later than 30 days after the date on which the FMV of the Closed
Fee Property is determined. Prior to the end of the Due Diligence Period for the
Closed Fee Property, Purchaser shall give written notice of any Objection
("Title Objection Notice") to Seller. Purchaser shall be deemed to have waived
any Objection existing on the last day of the Due Diligence Period and not
specified in such notice.
(d) Seller shall have no obligation to bring any action or
proceeding or otherwise to incur any expense or liability (contingent or
otherwise) to remedy an Objection; provided, however, that if an Objection is a
monetary lien, judgment or encumbrance of an ascertainable amount (a "Monetary
Objection"), Seller shall be obligated at or prior to the Settlement Date, to
cause such Monetary Objection to be satisfied or to cause the title insurance
company to insure title free of such Monetary Objection or with affirmative
insurance against the enforcement of such Monetary Objection by delivery of an
acceptable indemnity. If Seller is unable to convey title to a Closed Fee
Property in accordance with this Agreement or does not elect to remedy an
Objection (other than a Monetary Objection), Purchaser may elect either (i) to
accept such title as Seller is able to convey at Settlement, without any
reduction of the Purchase Price or any credit or allowance on account thereof or
any other claim against Seller, or (ii) to terminate this Agreement as to such
Closed Fee Property. Such election shall be made by Purchaser within ten days
after written notice from Seller to Purchaser stating that Seller is unable to
convey title in accordance with this Agreement or does not elect to remedy an
Objection (other than a Monetary Objection), such notice from Seller to be given
within ten days after its receipt of the Title Objection Notice, in which event
this Agreement shall be null and void as to such Closed Fee Property and the
parties shall have no further liabilities or obligations hereunder with respect
to that Closed Fee Property only, but in all other respects this Agreement shall
continue in full force and effect as to all of the other Closed Properties.
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(e) Although Seller is not obligated to do so, Seller shall have the
right to remedy any Objection with respect to a Closed Fee Property on written
notice given to Purchaser within ten days after Seller's receipt of the Title
Objection Notice. For the purpose of remedying an Objection, Seller shall have
the right to one or more adjournments of the Settlement for such Closed Fee
Property for an aggregate period not to exceed 45 days. If Seller fails to
remedy the Objection prior to the adjourned Settlement, the provisions of
Section 9(d) above shall be applicable, and Seller shall be deemed to have
elected not to remedy the Objection.
(f) The sale includes whatever right, title and interest Seller has in
and to the equipment and fixtures presently on each Closed Fee Property which
are appurtenant to or used in the operation thereof (subject to the exclusions
set forth in Section 4 above). Seller makes no representations as to the
quality, kind or condition thereof, and Purchaser agrees to take the same
"WHERE-IS" and "AS-IS."
10. Service and Maintenance Contracts.
(a) Seller has entered into certain maintenance and service contracts
for certain of the Closed Properties, all of which shall be terminated at or
prior to the Settlement for each such Closed Property. Seller shall indemnify,
defend and hold Purchaser harmless from and against all claims for payment by
such contractors for services with respect to such Closed Property rendered
prior to the date of the Settlement for such Closed Property. The foregoing
provisions of this Section 10(a) shall survive the Settlement for such Closed
Property and delivery of the Deed (as hereinafter defined) or Assignment (as
hereinafter defined), as applicable.
(b) Seller hereby agrees that from and after the Closed Property
Notification Date Seller shall not enter into any leases of or contracts for any
Closed Property, the term of which leases or contracts extend beyond the
Settlement for such property without Purchaser's prior written consent, which
consent may be given or withheld in Purchaser's sole discretion.
11. Documents to be Delivered by Seller at Settlement. At Settlement on each
Closed Property, Seller shall deliver to Purchaser:
(a) for each Closed Fee Property, the customary form of special or
limited warranty deed (such that Seller shall only warrant for claims arising
by, through or under Seller, but none others) for the state for which the Closed
Fee Property is located (collectively, the "Deeds") shall be duly executed by
Seller, be in form for recordation, be accompanied by completed realty transfer
tax forms, if required, and, for Deed Restricted Properties, contain the
required Permanent Use Restrictions;
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(b) for each Closed Property, an assignment and assumption of lease in
the form attached hereto as Exhibit D ("Assignment"), pursuant to which Seller
shall assign and Purchaser shall assume Seller's interest as lessor in any
leases or subleases for each Closed Property;
(c) xxxx of sale in the form attached hereto as Exhibit E ("Xxxx of
Sale"), pursuant to which Seller shall sell and transfer the personal property
at each Closed Property subject to this Agreement to Purchaser;
(d) for each Closed Leasehold Property, an assignment and assumption of
lease in the form attached hereto as Exhibit F ("Lease Assignment and Assumption
Agreement") pursuant to which Seller shall assign and Purchaser shall assume
Seller's interest as lessee under the lease for such Closed Leasehold Property;
(e) a closing statement showing the applicable Settlement adjustments,
duly executed by Seller;
(f) FIRPTA affidavit in the form attached hereto as Exhibit G and the
customary form of mechanic's lien and possession affidavit, each duly executed
by Seller, together with such documents and other evidence as is reasonably
required by Purchaser's title insurance company to establish that Seller is
authorized to execute the closing documents;
(g) a Certificate of Seller in the form attached hereto as Exhibit H,
confirming the truth, accuracy and completeness of the representations and
warranties of Section 29 hereof with respect to Seller;
(h) a certified copy of the Bylaws adopted by the Board of Directors of
Seller confirming the authority of certain officers to execute documents and a
certified statement of incumbency of the officer of Seller executing the
documents described in this Section 11; and
(i) originals, to the extent in Seller's possession, of surveys,
permits, licenses, leases, subleases, warranties and guarantees covered by this
Agreement.
12. Documents to be Delivered by Purchaser at Settlement. At Settlement on
each Closed Property, Purchaser shall deliver to Seller:
(a) the Purchase Price for each Closed Fee Property as described in
Section 5, as adjusted pursuant to Sections 14, 15, 17 and 21(c), by wire
transfer of immediately available funds;
14
(b) for each Closed Property, the Assignment described in Section 11(b)
above duly executed by Purchaser;
(c) for each Closed Leasehold Property, the applicable Lease Assignment
and Assumption Agreement described in Section 11(d) above duly executed by
Purchaser;
(d) for each Closed Leasehold Property for which Purchaser was able to
obtain same, the Landlord's Consent and for each Closed Leasehold Property for
which Purchaser was able to obtain same, the Seller Release, each as described
in Sections 7(c) and 7(e);
(e) for each Closed Leasehold Property for which Purchaser was not able
to obtain the Seller Release, the Secured Liability Amount described in Sections
7(e);
(f) for each Closed Leasehold Property for which Purchaser was able to
obtain same, the Landlord's Estoppel described in Section 7(c);
(g) a closing statement showing the applicable Settlement adjustments,
duly executed by Purchaser; and
(h) a Certificate of Purchaser or Purchaser's permitted assignee, in the
form attached hereto as Exhibit H, confirming the truth, accuracy and
completeness of the representations and warranties of Section 28 hereof with
respect to Purchaser or such assignee, as applicable, and duly executed by
Purchaser or Purchaser's permitted assignee.
13. Possession. At Settlement on each Closed Property, Seller shall give
Purchaser possession of the Closed Property, free and clear of all tenants
except for existing tenant leases and such other permitted leases pursuant to
Section 10(b) and the rights of Seller under Section 4(c), if applicable.
14. Adjustments. At each Settlement, Purchaser and Seller shall adjust for
real estate taxes and assessments on the Closed Property, municipal water and
sewer charges, fuel, utility charges, rent, and lease liabilities, such
adjustments to be calculated as of 11:59 PM on the day immediately preceding
Settlement. In addition, Seller shall account to and turn over to Purchaser any
and all security deposits paid by existing tenants of the Closed Property (where
Seller is landlord), and Purchaser shall reimburse Seller for any and all
security deposits held by landlords under leases for Closed Leasehold Properties
(where Seller is tenant). Prior to the Settlement, Seller shall have paid all
service providers under the service and maintenance contracts for the Closed
Property for services rendered up to the day prior to the Settlement. If the
Settlement shall occur before the tax rate or assessed valuation of the subject
Closed Property is fixed for the then-current year, the apportionment of real
estate taxes for the year of Settlement shall be upon the basis of the
15
most recent tax bills and the tax rate for the most recent tax year applied to
the latest assessed valuation. There shall be no post-Settlement reconciliations
or reprorations.
15. Expenses. At each Settlement, Purchaser and Seller shall divide the
realty transfer taxes applicable to the conveyance of the Closed Fee Property,
if any, according to local custom for the state in which the Closed Fee Property
is located. Purchaser shall pay all escrow and closing charges of the settlement
or closing agent. Seller shall pay any recording fees for the satisfaction of
any mortgages, liens or judgments affecting the Closed Property and Purchaser
shall pay all recording fees in connection with the conveyances of the Closed
Fee Properties and assignments of the leasehold interests in the Closed
Leasehold Properties. Each party shall bear all other fees, charges and expenses
incurred by it, without contribution from the other, in connection with this
transaction.
16. Default.
(a) If Seller materially breaches this Agreement prior to or at any
Settlement, and if such default continues for more than ten business days
following written notice thereof to Seller, the sole liability of Seller shall
be and the sole remedy of Purchaser shall be limited to either (i) payment to
Purchaser, as liquidated damages, for each Closed Property for which Settlement
has not occurred and for which Purchaser has performed some or all of its
investigations pursuant to Sections 9 and 21, the sum equal to Purchaser's
actual, reasonable out-of-pocket costs and expenses incurred subsequent to the
date of this Agreement (to the extent documented to Seller's reasonable
satisfaction by copies of paid invoices and bills and canceled checks) for
title, survey and other due diligence reports and evaluations, whereupon
Purchaser shall deliver to Seller complete copies (with all appendices and
exhibits) of all (interim drafts as well as final reports, if any) due diligence
reports, evaluations, investigations, surveys and title searches in Purchaser's
possession or control (without representation or warranty and with a disclaimer
of reliance), and this Agreement shall become null and void and the parties
shall have no further liabilities or obligations hereunder; or (ii) a suit by
Purchaser for specific performance only.
(b) If Purchaser materially breaches this Agreement prior to or at any
Settlement, and if such default continues for more than ten business days
following written notice thereof to Purchaser, Seller shall be entitled to
terminate this Agreement (either in its entirety or, at Seller's election, only
as to the Closed Properties for which Settlement did not occur as a result of
Purchaser's breach) and to receive out of the Deposit (as hereinafter defined)
liquidated damages in an amount equal to 10% of the Purchase Price for each
Closed Fee Property and 10% of the Discount for each Closed Leasehold Property
on which Purchaser fails to make Settlement, provided that (i) except as
provided in subsection (d) below, in no event shall the amount of Purchaser's
liability hereunder exceed, in the aggregate, the amount of the Deposit and (ii)
notwithstanding an election by Seller to terminate this Agreement in its
entirety as a result a material breach hereof by Purchaser, Purchaser shall
nevertheless remain entitled and obligated to complete Settlement on all Closed
Properties that become Closed Properties prior to the date of such termination
and Seller shall only be entitled to receive liquidated damages as aforesaid for
Closed
16
Properties if, as and when Purchaser fails to complete Settlement thereon as
required hereby. In addition to the foregoing, in the event of a termination of
this Agreement in its entirety by Seller following a material breach of this
Agreement by Purchaser, Seller shall be entitled to receive out of the Deposit
(but only to the extent such funds are available) additional liquidated damages
in the amount of $250,000.00 over and above the aforesaid liquidated damages for
each Closed Property. In addition, Purchaser shall deliver to Seller complete
copies (with all appendices and exhibits) of all (interim drafts as well as
final reports, if any) due diligence reports, evaluations, investigations,
surveys and title searches in Purchaser's possession or control (without
representation or warranty and with a disclaimer of reliance). The provisions of
this subparagraph (b) shall survive the expiration or earlier termination of
this Agreement. The parties acknowledge that the aforesaid liquidated damages
are reasonable and do not constitute a penalty and are being agreed upon due to
the difficulty of calculating the actual amount of damages that Seller might
sustain in the event of a default by Purchaser and termination of this
Agreement.
(c) Notwithstanding anything to the contrary contained in Section 16(a),
in the event Seller's breach is caused by or arises out of regulatory issues,
Seller shall have no liability whatsoever to Purchaser; this Agreement shall
become null and void as to such affected Closed Properties only, and the parties
shall have no further liabilities or obligations hereunder with respect to such
affected Closed Properties; and this Agreement shall continue to be effective as
to the remaining Closed Properties.
(d) Notwithstanding anything to the contrary contained in Section 16(b),
there shall be no limitation on Purchaser's liability under Sections 7(g) and
27(i) of this Agreement or under any Lease Assignment and Assumption Agreement
with respect to a Closed Leasehold Property, and Seller may recover from
Purchaser any amounts due thereunder that are not fully covered by the Deposit
or the Secured Liability Amount.
17. Risk of Loss. If a condemnation proceeding is instituted against a
Closed Property or any portion thereof, or if a Closed Property is substantially
damaged by fire or other casualty, prior to Settlement, Purchaser may terminate
this Agreement as to such Closed Property upon written notice to Seller,
whereupon the parties shall have no further liabilities or obligations hereunder
with respect to such Closed Property, but this Agreement shall continue in full
force and effect as to the remaining Closed Properties. If Purchaser does not so
terminate this Agreement as to a Closed Property in the case of condemnation or
substantial damage by fire or other casualty, or if in the case of fire or other
casualty to a Closed Property there is less than substantial damage, then in
each of such cases, this Agreement shall continue to be effective as to such
Closed Property, and Seller shall assign to Purchaser at Settlement all of
Seller's right to receive any award for such condemnation or insurance proceeds
as a result of such damage (as the case may be), together with all of Seller's
rights to litigate such claim and to negotiate a settlement with the condemning
authority or the insurance carrier; provided, however, to the extent Seller
self-insures (including a deductible or any under-insured amount) against a
casualty, then the Purchase Price for the affected Closed Fee Property shall be
adjusted to reflect a credit in favor of Purchaser for the amount of such
under-insured amount. For purposes of this Section, a Closed Property shall be
deemed to have
17
been "substantially damaged" if such damage occurs at a Closed Fee Property or a
Closed Leasehold Property that Seller is responsible to restore and such
restoration either will require more than 120 days to complete or will cost in
excess of 25% of the Purchase Price of such Closed Fee Property. If the damage
occurs at a Closed Leasehold Property that the landlord is responsible to
restore, such Closed Leasehold Property shall be deemed to have been
"substantially damaged" if the landlord elects to terminate the lease in lieu of
restoration or elects to restore, but such restoration will require more than
120 days to complete. Seller agrees to maintain its current property insurance
policies on the Closed Properties during the pendency of this Agreement.
18. Brokers. Each party represents and warrants to the other that it has not
dealt with any real estate broker, agent or finder in connection with this
Agreement. The parties agree to indemnify and hold one another harmless based
upon their actions and dealings from any claims or causes of action concerning
brokerage or finder's fees or commissions. If any claim against Seller is
asserted by any person, firm or corporation claiming a commission and/or
finder's fee with respect to the transactions contemplated by this Agreement,
and resulting from any act, representation or promise of Purchaser, Purchaser
shall indemnify, defend and save harmless Seller from such claim resulting from
any act, representation or promise of Purchaser. If any claim against Purchaser
is asserted by any person, firm or corporation claiming a commission and/or a
finder's fee with respect to the transactions contemplated by this Agreement,
and resulting from any act, representation or promise of Seller, Seller shall
indemnify, defend and save harmless Purchaser from such claim resulting form any
act, representation or promise of Seller. The terms of this Section 18 shall
survive the Settlement on each Closed Property and the delivery of the Deed or
Assignment, as applicable, and shall survive the expiration or earlier
termination of this Agreement.
19. Closed Properties "AS-IS." Purchaser either (a) has heretofore inspected
each of the Closed Properties, or caused an inspection thereof to be made on
Purchaser's behalf, or (b) will have done so prior to the end of the Due
Diligence Period (as hereinafter defined) or (c) will have waived its right to
do so as hereinbelow set forth, so that, by the end of the Due Diligence Period
(as hereinafter defined), Purchaser shall be (or shall have had the opportunity
to become) acquainted with the condition of the Closed Properties and the
improvements located therein. Purchaser agrees to take the Closed Properties
"AS-IS," "WHERE-IS," and in their present condition, subject to reasonable use,
wear and tear, and (subject to Section 17 above) damage by fire and other
casualties, and (subject to Section 17 above) due to a taking by condemnation or
eminent domain, between the date hereof and the Settlement on each of the Closed
Properties. Until the Settlement, Seller agrees to maintain each Closed Fee
Property in its present condition, reasonable wear and tear excepted, and to
likewise maintain each Closed Leasehold Property but only to the extent it has
responsibility therefor under the lease for such Closed Leasehold Property.
20. Disclaimer.
(A) PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
(OTHER THAN THE WARRANTY OF TITLE AS SET
18
OUT IN THE DEED), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF ANY CLOSED PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE
SUITABILITY OF THE CLOSED PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER OR ANYONE ELSE MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE
CLOSED PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF ANY CLOSED PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO ANY CLOSED PROPERTY; (G) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY CLOSED PROPERTY; OR (H) ANY
OTHER MATTER WITH RESPECT TO ANY CLOSED PROPERTY, AND SPECIFICALLY, THAT SELLER
HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION, ZONING OR
LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE
EXISTENCE IN OR ON ANY CLOSED PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED
BELOW). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT EACH CLOSED PROPERTY, PURCHASER IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF EACH CLOSED PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR
TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO EACH CLOSED PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO EACH CLOSED PROPERTY, OR THE OPERATION THEREOF,
FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS
WITH ALL FAULTS. ALL PROVISIONS OF THIS ARTICLE SHALL SURVIVE SETTLEMENT OR THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT WITHOUT SETTLEMENT, AS
APPLICABLE.
(B) "Hazardous Materials" shall mean any substance which is or contains
(i) any "hazardous substance" as now or hereafter defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. (S)9601 et. seq.) "CERCLA") or any regulations promulgated under or
pursuant to CERCLA; (ii) any "hazardous waste" as now or
19
hereafter defined in the Resource Conservation and Recovery Act, as amended (42
U.S.C. (S) 6901 et seq.) ("RCRA") or regulations promulgated under or pursuant
to RCRA; (iii) any substance regulated by the Toxic Substances Control Act, as
amended (15 U.S.C. (S) 2601 et seq.); (iv) gasoline, diesel fuel, or other
petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any
form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii)
radon gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under Environmental
Requirements (as hereinafter defined) or the common law, or any other applicable
laws relating to each Closed Property. Hazardous Materials shall include,
without limitation, any substance, the presence of which on each Closed
Property, (A) requires reporting, investigation or remediation under
Environmental Requirements; (B) causes or threatens to cause a nuisance on the
Closed Property or adjacent property or poses or threatens to pose a hazard to
the health or safety of persons on the Closed Property or adjacent property; or
(C) which, if it emanated or migrated from the Closed Property, could constitute
a trespass.
(C) "Environmental Requirements" shall mean all laws, ordinances,
statutes, codes, rules, regulations, agreements, judgments, orders, and decrees,
now or hereafter enacted, promulgated, or amended, of the United States, the
states, the counties, the cities, or any other political subdivisions in which
the Closed Property is located, and any other political subdivision, agency or
instrumentality exercising jurisdiction over the owner of the Closed Property,
the Closed Property or the use of the Closed Property, relating to pollution,
the protection or regulation of human health, natural resources, or the
environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface, water, ground water or soil).
(D) Purchaser acknowledges that, subject to the termination rights set
forth in Section 21(b), Purchaser shall accept all Closed Properties (including
all improvements located thereon) at Settlement in their AS IS physical
condition WITH ALL FAULTS, including, without limitation, with the presence of
Hazardous Materials thereon or therein. Purchaser, on behalf of itself and its
successors and assigns, hereby waives, releases, acquits and forever discharges
Seller its current and former officers, directors, shareholders, employees,
agents, attorneys, representatives, and any other persons acting on behalf of
Seller and the successors and assigns of any of the preceding, of and from any
and all claims, actions, causes of action, demands, rights, damages, costs,
expenses or compensation whatsoever, direct and indirect, known or unknown,
foreseen or unforeseen, which Purchaser or its successors or assigns now has or
which may arise in the future on account of or in any way related to or in
connection with any past, present, or future physical characteristic or
condition of each Closed Property or the improvements thereon, including,
without limitation, any Hazardous Materials in, at, on, under or related to the
Closed Property or the improvements thereon or any violation or potential
violation of any Environmental Requirement applicable thereto and further
including, without limitation, any claim for contribution or indemnification
arising under any Environmental Requirements, common law or otherwise.
Notwithstanding anything to the contrary set forth herein, this release shall
survive the Settlement and the expiration or earlier termination of this
Agreement.
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21. Due Diligence Period; Purchaser's Access to Closed Properties. As to
each Closed Property, Purchaser shall have a period of 75 days from and after
the Closed Property Notification Date (or 75 days following the Purchaser's
Acceptance Date for Closed Properties that are not Bank Branch Properties) ("Due
Diligence Period") to perform such due diligence review and analysis of the
Closed Property as Purchaser deems necessary including, without limitation, to
investigate, review, survey and physically inspect the Closed Property, to
obtain a title search and survey, to conduct Phase I environmental studies and
engineering studies of each Closed Property as described below and, with respect
to a Closed Leasehold Property, to review the lease.
(a) During the Due Diligence Period for each Closed Property, as same
may be extended with respect to such Closed Property pursuant to Sections 21(b)
and (c) hereof, Purchaser, its employees and agents, at Purchaser's sole cost
and expense, shall have the right to enter upon such Closed Property to inspect
such Closed Property. Purchaser shall give Seller prior written notice of its
entry upon the Closed Property and shall coordinate such entry and inspection
with Seller so that the entry is at a mutually convenient time. Prior to each
such entry, Purchaser shall provide certificates of insurance to Seller
evidencing liability insurance in the minimum amount of $2,000,000.00 combined
per occurrence limit carried by Purchaser and/or Purchaser's agents in order to
insure any loss arising out of or in connection with entry upon the Closed
Property. The aforesaid insurance shall be issued by an insurance company
licensed in the state where the Closed Property is located and said insurance
company shall be acceptable to Seller. Upon completion of any inspections,
Purchaser, shall restore the Closed Property to the condition in which it
existed prior to said inspections. Purchaser shall and hereby does indemnify,
defend, and save harmless Seller from and against any and all claims arising out
of the entry on and inspection of each and every Closed Property by Purchaser
and/or Purchaser's employees and agents, including, without limitation, Seller's
attorneys' fees and costs. Notwithstanding anything contained in this Agreement
to the contrary, the terms of this subsection shall survive (i) Settlement on
such Closed Property and the delivery of the Deed or Assignment, as applicable,
(ii) the termination of this Agreement as to such Closed Property and (iii) the
expiration or earlier termination of this Agreement.
(b) Prior to the expiration of the Due Diligence Period for each Closed
Property, if Purchaser's environmental consultant, based on records and other
documentation obtained during its Phase I environmental investigation ("Phase I
Study"), determines that a Phase II environmental study ("Phase II Study") is
necessary with respect to such Closed Property, Purchaser shall give to Seller
written notice thereof, together with a complete copy of the Phase I Study and a
reasonably detailed explanation of the reasons therefor from Purchaser's
environmental consultant. Within ten days after receipt of such notice, Seller,
at its sole election, shall either (i) obtain the Phase II Study at Seller's
sole cost and expense, (ii) permit Purchaser to obtain a Phase II Study at
Seller's sole cost and expense, which shall be conducted by an environmental
consultant satisfactory to Seller in its reasonable judgment pursuant to a scope
of study satisfactory to Seller in its reasonable judgment; or (iii) withdraw
the Closed Property from this Agreement, and in the latter event, this Agreement
shall terminate and be null and void as to such withdrawn Closed Property, but
shall continue in full force and effect as to the remaining Closed Properties.
Unless Seller notifies Purchaser during such ten-day period of Seller's election
to obtain (or to permit Purchaser to obtain) a Phase II Study, Seller shall be
deemed to have elected to withdraw the Closed Property from this Agreement as
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expressed in clause (iii) above. If Seller or Purchaser obtains a Phase II Study
for such Closed Property, as provided above, and if the Phase II Study
identifies one or more environmental conditions requiring remediation, then,
within ten days after Seller delivers the Phase II Study to Purchaser, or
Purchaser delivers the Phase II Study to Seller, as applicable, Seller, at its
sole election, shall either (i) agree to remediate and xxxxx the disclosed
environmental condition(s) at Seller's sole cost and expense in conformity with
all applicable Environmental Requirements or (ii) withdraw the Closed Property
from this Agreement, and in the latter event, this Agreement shall terminate and
be null and void as to such withdrawn Closed Property, but shall continue in
full force and effect as to the remaining Closed Properties. Unless Seller
notifies Purchaser during such ten-day period of Seller's election to remediate
and xxxxx the disclosed environmental condition(s), Seller shall be deemed to
have elected to withdraw the Closed Property from this Agreement as expressed in
clause (ii) above. Unless the Closed Property is withdrawn from this Agreement
by Seller as aforesaid, the Due Diligence Period and Settlement automatically
shall be extended for such time as is necessary for Seller or Purchaser, as
applicable, to complete the environmental investigations and remediations
described above. In the event of a withdrawal of a Closed Property pursuant to
this subparagraph or a termination of this Agreement as provided herein as to
such Closed Property, Purchaser shall be solely responsible for all of
Purchaser's due diligence and investigation costs and expenses.
(c) Prior to the expiration of the Due Diligence Period for each Closed
Fee Property, if Purchaser's consultant, based on physical inspection, records
and other documentation obtained during its physical conditions investigation,
determines that the Closed Fee Property requires repairs to the structural
and/or mechanical systems of the Building that under generally accepted
accounting principles (i.e., "GAAP") would be categorized as a capital
expenditure and if the reasonably estimated cost of same exceeds $10,000.00
("Individual Repair Threshold"), Purchaser shall give written notice thereof and
a copy of the consultant's reports to Seller. Within ten days after receipt of
such notice and the report, Seller shall, at its sole election, by written
notice to Purchaser, either (i) subject to the provisions of the following
sentence of this Section 21(c), agree to allow a credit against the Purchase
Price for such Closed Fee Property in the reasonably estimated cost of such
capital repairs in excess of the Individual Repair Threshold or (ii) withdraw
such Closed Fee Property from this Agreement, and in the latter event, this
Agreement shall terminate as to such withdrawn Closed Fee Property, but shall
continue in full force and effect as to the remaining Closed Properties. If the
reasonably estimated cost of such capital repairs for a Closed Fee Property is
less than the Individual Repair Threshold, Purchaser and Seller shall proceed to
the Settlement with respect to each such Closed Fee Property, with no abatement
of the Purchase Price for same. In the event of a withdrawal of a Closed Fee
Property pursuant to this subparagraph or a termination of this Agreement as
provided herein as to such Closed Fee Property, Purchaser shall be solely
responsible for all of Purchaser's due diligence and investigation costs and
expenses.
(d) Within 15 days following the Closed Property Notification Date (or
15 days following the Purchaser's Acceptance Date for each Closed Property that
is not a Bank Branch Property), for each Closed Property, Seller shall make
available to Purchaser for inspection and copying at Purchaser's expense all
documents and records relating to the Closed Property which to Seller's best
knowledge, Seller has in its possession, such documents to be made available to
22
Purchaser at the location or locations where such documents are kept in the
ordinary course of Seller's business.
22. Notices and Assessments: Tax Appeals.
(a) Seller shall (i) comply with the requirements of any and all notices
relating to each Closed Property which may be issued by municipal or other
public authorities prior to the date of this Agreement and (ii) pay for all work
and improvements done or ordered to be done prior to the date of this Agreement
by any such authority which results in the imposition of a confirmed lien
against a Closed Property prior to Settlement. If Settlement takes place as to
such Closed Property, all other requirements and notices shall be complied with
by Purchaser and all other work or improvements done or ordered done shall be
performed and paid for Purchaser.
(b) Seller agrees that from and after each Closed Property Notification
Date it will not file any real estate tax assessment appeal with respect to any
Closed Property prior to Settlement on such Closed Property without Purchaser's
prior written consent.
23. Notices. All notices hereunder shall be in writing and shall be deemed
to have been properly given if personally delivered, sent via facsimile or sent
by private overnight express carrier, such as Federal Express, next business day
delivery, charges prepaid, addressed to Seller at Bank of America,
NC1-007-52-02, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000,
Attention: Xxxxxx Xxxxxxxxx, facsimile number (000) 000-0000; with a copy to
Bank of America, N.A., TX1-492-68-01, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Xxxxxxx Xxxx, Esquire, facsimile number (000) 000-0000; addressed to
Purchaser at 0000 Xxx Xxxxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx. Xxxxxxxx
Xxxxxxxx, facsimile number (000) 000-0000; with a copy to Xxxxxx, Xxxxx Xxxxxxx
LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx Xx.,
Esquire, facsimile number (000) 000-0000. Notices by the parties may be given on
their behalf by their respective counsel. Notice shall be deemed to have been
given upon the date of delivery, if personally delivered, or sent via facsimile
or one business day after the date of deposit if sent by private overnight
express carrier, next business day delivery.
24. No Survival. Except as otherwise provided, none of the provisions of
this Agreement shall survive any Settlement and delivery of any of the Deeds or
Assignments, as applicable.
25. Further Assurances. From time to time and at the request of either
Seller or Purchaser (whether before, at or after the Settlement for a Closed
Property), the other party shall execute, acknowledge and deliver such other and
further documents as the requesting party may reasonably request to effectuate
the provisions of this Agreement. The provisions of this Section 25 shall
survive the expiration or earlier termination of this Agreement.
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26. Deposit.
(a) As of the date hereof, Purchaser has deposited as security for the
performance of Purchaser's obligations hereunder the sum of $250,000.00
("Initial Deposit") to be held in escrow and disbursed as herein provided. In
addition, within three business days following the establishment of the Purchase
Price for a Closed Fee Property as expressed in Section 5 hereof, Purchaser
shall deposit as further security for the performance of Purchaser's obligations
hereunder an amount equal to 10% of the Purchase Price for such Closed Fee
Property (each such amount, a "Supplemental Deposit" and, together with the
Initial Deposit, the "Deposit"), provided that no Supplemental Deposit shall be
due or payable when or to the extent that the funding of such Supplemental
Deposit would cause the aggregate amount of the Supplemental Deposit to be more
than $750,000.00. As and when either (i) Settlement occurs on a Closed Fee
Property or (ii) a Closed Fee Property is withdrawn from this Agreement as
expressed in Sections 21(b) or (c) hereof, the aggregate amount of the
Supplemental Deposits shall be recomputed to equal the lesser of (i) 10% of the
aggregate amount of the Purchase Prices for all Closed Fee Properties for which
Settlement has not yet occurred or (ii) $750,000.00.
(b) At Purchaser's election, but subject to Seller's reasonable
approval, the form of the Deposit shall be one of the following: (i) cash
deposited with Commonwealth Land Title Insurance Company ("Escrow Agent") to be
held and disbursed by the Escrow Agent pursuant to the terms and conditions of
this Agreement and the escrow provisions set forth in Exhibit J-1 attached
hereto; (ii) an irrevocable letter of credit issued by a domestic bank
reasonably acceptable to Seller and substantially in the form attached hereto as
Exhibit J-2; or (iii) a pledge and assignment of money market, mutual fund or
similar accounts reasonably acceptable to Seller or certificates of deposit or
other instruments of reasonable liquidity issued by a domestic bank reasonably
acceptable to Seller, which pledge and assignment agreements shall be
substantially in the form attached hereto as Exhibit K-3. The Deposit shall be
in addition to, and separate from, the collateral tendered by Purchaser to
secure the Secured Liability Amount under Section 7(e).
(c) The interest earned (if any) on the Deposit shall be part of the
Deposit. Provided Purchaser is not in default hereunder, the interest earned on
the Deposit shall be paid to the Purchaser on each one-year anniversary date of
this Agreement. The Deposit shall be paid to the Seller as provided in Section
16(b) if the Purchaser defaults or if the Seller terminates this Agreement for
cause as provided in Section 2 and Section 16(b). On the last to occur of (i)
the date of expiration or earlier termination of this Agreement, (ii) the
Settlement Date for the last of the Closed Properties subject to this Agreement
or (iii) the expiration of the Dark Period for the last of the Closed Properties
subject to this Agreement, the Deposit shall be paid to the Purchaser.
(d) If the Deposit is in the form of a letter of credit, the Seller also
may draw on the letter of credit if the Purchaser fails to deliver to the Seller
a replacement letter of credit or replacement instrument/security in proper form
and amount at least 15 days prior to the expiry date of the then current letter
of credit.
27. Miscellaneous.
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(a) This Agreement shall not be recorded in the office for the recording
of deeds or in any other office or place of public record. Prior to Settlement,
this Agreement shall not be deemed or construed to give Purchaser any equitable
ownership of, or title to, any Closed Property, Fee Property or Leasehold
Property.
(b) This Agreement and the exhibits attached hereto contain the entire
agreement between Seller and Purchaser and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind or nature whatsoever. This Agreement may be modified only
by an agreement in writing between the parties hereto.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal and legal representatives,
successors and permitted assigns; provided, however, that Purchaser shall not
assign or otherwise transfer this Agreement without the prior written consent of
Seller, which Seller may grant or deny in its sole discretion. Notwithstanding
anything to the contrary in the preceding sentence, Purchaser, may, with
Seller's prior written consent, not to be unreasonably withheld, assign this
Agreement in its entirety to a partnership, limited liability company or
corporation which is an "Affiliate" of Purchaser and in which Xxxxxxxx Xxxxxxxx
is the principal. Purchaser's request for consent to the assignment to an
Affiliate must be accompanied by evidence satisfactory to Seller of the
relationship among Purchaser, such Affiliate, and Xxxxxxxx Xxxxxxxx. For
purposes hereof, the term "Affiliate" shall mean a partnership, limited
liability company, or corporation that is owned by or is under common control
and ownership with, Purchaser. In no event shall any assignment of this
Agreement relieve Purchaser named herein from liability hereunder.
(d) This Agreement shall be governed and construed in accordance with
the laws of the State of North Carolina.
(e) Whenever in this Agreement a period of time is stated as a number of
days, it shall be construed to mean calendar days; provided, however, that when
any period of time so stated would end upon a Saturday, Sunday, or legal
holiday, such period shall be deemed to end upon the next day following which is
not a Saturday, Sunday or legal holiday.
(f) The date and time for the performance of all obligations hereunder
shall be deemed to be of the essence of this Agreement.
(g) If any term or provision of this Agreement shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement shall not be affected
and each such remaining provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(h) This Agreement may be executed in two or more counterparts, each of
which
25
shall be deemed to be an original, but all of which taken together shall
constitute one and the same instrument. The date of this Agreement shall be the
date of Seller's execution hereof.
(i) Each Closed Property shall be subject to Seller's requirement that
neither Purchaser nor any of Purchaser's Responsible Parties (as hereinafter
defined) shall display any on-site signage advertising a banking facility or
open for business or conduct any on-site operations as a banking facility on any
Closed Property for the period equal to the lesser of (i) six months following
the Settlement Date or (ii) any such shorter period as may from time to time be
required by Seller (such lesser period, the "Dark Period"), provided that with
respect to Closed Leasehold Properties, all such requirements shall be suspended
to the extent inconsistent with and subject to the limitations, if any,
presented by so-called "continuous operations" clauses contained in the leases
for such Closed Leasehold Properties. If Purchaser or any of Purchaser's
Responsible Parties violates the foregoing Dark Period restrictions at a Closed
Property, Purchaser shall pay to Seller and Seller shall be entitled to receive
out of the Deposit liquidated damages in an amount equal to $5,000.00 for each
day that such violation continues at such Closed Property and, in the event that
Purchaser or any of Purchaser's Responsible Parties violates the Dark Period
restrictions at more than one Closed Property, the $5,000.00 per day liquidated
damages amount shall apply to each Closed Property at such violation exists. The
foregoing Dark Period restriction shall survive Settlement on each Closed
Property, shall survive the expiration or earlier termination of this Agreement
and shall constitute a covenant running with the Closed Property for the benefit
of Seller and its successors and assigns. Purchaser shall be responsible to
advise its transferees, tenants, licensees, subsidiaries, affiliates,
successors, assigns and other occupants (herein collectively referred to as
"Purchaser's Responsible Parties") of the Closed Property of this restriction.
The parties acknowledge that the aforesaid liquidated damages are reasonable and
do not constitute a penalty and are being agreed upon due to the difficulty of
calculating the actual amount of damages that Seller might sustain in the event
of a violation of any of the Dark Period restriction. Seller shall notify
Purchaser promptly following Seller becoming aware that Purchaser or any of
Purchaser's Responsible Parties is in violation the Dark Period restrictions,
provided that the notice and cure provisions contained in Section 16(b) shall
not apply to violations of the Dark Period restrictions.
(j) Any other provision of this Agreement to the contrary
notwithstanding, Seller may from time to time elect to convey Closed Fee
Properties to Purchaser subject to the express condition that such Closed Fee
Properties not be used for a specified period (not to exceed 30 years following
the Settlement Date )as a "financial institution" ("Permanent Use Restriction"),
provided that (A) such right to impose Permanent Use Restrictions shall be
exercised, if at all, on or before the 30/th/ day following the Closed Property
Notification Date for such Closed Fee Property, (B) Seller may not impose
Permanent Use Restrictions on more than 15% (rounded to the nearest whole
number) of the Closed Fee Properties identified at any one time on a Closed
Property Designation Notice and (C) the FMV for all Closed Fee Properties
subject to Permanent Use Restrictions shall be determined by single valuation as
expressed in Section 5(a) hereof. The Permanent Use Restrictions shall be in a
form attached hereto as Exhibit K and survive Settlement on the Closed Fee
Property, shall constitute a covenant running with the Closed Fee Property for
the benefit of Seller and its successors and assigns and shall be set forth in
the Deed for the Closed Fee Property.
26
28. Purchaser's Representations. Purchaser (and, if applicable, Purchaser's
Affiliate) represents to Seller, which representations shall be true, correct
and complete as of each Settlement Date hereunder and which shall survive each
Settlement, as follows:
(a) Purchaser is, and at the Settlement shall be, a corporation (or
limited liability company, or limited partnership, as applicable) duly
organized, validly existing, and in good standing under the laws of the state of
formation, and as of each Settlement, with full power and authority to conduct
its business affairs in the state where the Closed Property is located.
(b) The execution, delivery and performance of this Agreement, in
accordance with its terms, do not violate Purchaser's articles of incorporation,
by-laws, or any contract, agreement, commitment, order, judgment or decree to
which Purchaser is a party or by which it is bound.
(c) The execution and delivery of this Agreement and the performance by
Purchaser of its obligations hereunder have been duly authorized by all required
action of Purchaser and the officers of Purchaser in full compliance with the
provisions of Purchaser's articles of incorporation and by-laws. The person
executing this Agreement on behalf of Purchaser is duly authorized to do so.
(d) Purchaser has the right, power and authority to make and perform its
obligations under this Agreement and this Agreement is a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
(e) Purchaser executing this Agreement is wholly owned and controlled by
Xxxxxxxx Xxxxxxxx.
29. Seller's Representations. Seller represents to Purchaser, which
representations shall be true, correct and complete as of each Settlement Date
hereunder and which shall survive each Settlement, as follows:
(a) Seller is, and at the Settlement shall be, a national banking
association, duly organized and validly existing, with full power and authority
to conduct its business affairs in the state in which the Closed Property is
located.
(b) The execution, delivery and performance of this Agreement by Seller,
in accordance with its terms, do not violate Seller's articles of incorporation,
by-laws, or any contract, agreement, commitment, order, judgment or decree to
which Seller is a party or by which it is bound (except for the potential
violation of the terms of a lease for a Closed Leasehold Property as a result of
a transfer to Purchaser without the Landlord's consent or the operation of the
Dark Period).
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(c) The execution and delivery of this Agreement and the performance by
Seller of its obligations hereunder have been duly authorized by all required
action of Seller and the officers of Seller in full compliance with the
provisions of Seller's articles of incorporation and by-laws. The person
executing this Agreement on behalf of Seller is duly authorized to do so.
(d) Seller has the right, power and authority to make and perform its
obligations under this Agreement and this Agreement is a valid and binding
obligation of Seller enforceable against Seller in accordance with its terms.
30. Indemnification. With respect to and following the Settlement on each
Closed Property.
(a) Purchaser shall indemnify and hold Seller harmless from and against
all claims, lawsuits, costs (including reasonable counsel fees), losses, damages
and liabilities that arise out of or relate to (i) the presence of any Hazardous
Materials in, on or at a Closed Property (or any improvements) at the time of
Settlement, but only to the extent that the presence of such Hazardous Materials
were disclosed in a Phase I Study or Phase II Study obtained by either Seller of
Purchaser, (ii) transactions or operations at the Closed Property on and after
the Settlement Date or (iii) any breach by Purchaser of any representation,
warranty or covenant of Purchaser contained in this Agreement that survives the
Settlement. If any claim or lawsuit is made or commenced as to which Seller
proposes to demand such indemnification, it shall notify Purchaser with
reasonable promptness; provided, however, that any failure of Seller to notify
Purchaser shall not relieve Purchaser from its obligations hereunder, except to
the extent Purchaser is actually prejudiced by such failure to give notice.
Purchaser shall have the option of defending such claim or lawsuit with counsel
of its own choosing at its own cost and expense and such counsel shall, to the
extent consistent with its professional responsibilities, cooperate with Seller
and any counsel designated by Seller. Purchaser shall be liable for any
settlement of any claim or lawsuit against Seller made with Purchaser's written
consent, which consent shall not be unreasonably withheld.
(b) Seller shall indemnify and hold Purchaser harmless from and against
all claims, lawsuits, costs (including reasonable counsel fees), losses, damages
and liabilities that arise out of or relate to (i) transactions or operations at
the Closed Property before the Settlement Date, but specifically excluding any
matter relating to the physical condition of the Closed Property or the presence
of any Hazardous Materials in, on or at a Closed Property (or any improvements)
at the time of Settlement, and (ii) any breach by Seller of any representation,
warranty or covenant of Seller contained in this Agreement that survives the
Settlement. If any claim or lawsuit is made or commenced as to which Purchaser
proposes to demand such indemnification, it shall notify Seller with reasonable
promptness; provided, however, that any failure of Purchaser to notify Seller
shall not relieve Seller from its obligations hereunder, except to the extent
that Seller is actually prejudiced by such failure to give notice. Seller shall
have the option of defending such claim or lawsuit with counsel of its own
choosing at its own cost and expense and such counsel shall, to the extent
consistent with its professional responsibilities, cooperate with Purchaser and
any counsel designated by Purchaser. Seller shall be liable for any settlement
of any claim or lawsuit against
28
Purchaser made with Seller's written consent, which consent shall not be
unreasonably withheld.
31. Confidentiality.
(a) Purchaser agrees that this Agreement and any and all information
obtained by Purchaser, its agents, representatives and employees, in connection
with any examinations and inspections of the Closed Properties will be held in
strict confidence by Purchaser and its agents, representatives and employees and
will not be disclosed to anyone other than Purchaser's investors and its and
their professional advisers on a "need to know " basis, without the prior
written consent of Seller. No news release, public or private announcement,
denial or confirmation relating to this Agreement or any part of the
transactions contemplated herein shall be made without the prior written consent
of Seller. In the event this Agreement is terminated prior to the Settlement on
a Closed Property, Purchaser will return to Seller any documents and other
materials received from Seller with respect to such Closed Property. Purchaser
shall indemnify, defend and hold Seller harmless from any loss, damages, costs
or expenses (including reasonable attorney's fees) arising as a result of
Purchaser's breach of this Section 31.
(b) Notwithstanding anything to the contrary contained in Section 31(a)
above, from and after the 31st day after the Closed Property Notification Date
(or 31 days following the Purchaser's Acceptance Date for each Closed Property
that is not a Bank Branch Property), for a Closed Property, Purchaser may market
such Closed Property to Purchaser's contacts (including persons who Purchaser
believes may be interested in using such Closed Property and persons, including
brokers, who may have contacts and relationships with such users), but in doing
so, shall not publicly market or advertise or promote in any manner the
availability of such Closed Property for sale, lease or other disposition.
32. No Offer. This Agreement shall neither be deemed an offer to sell nor
shall it bind, obligate or be effective against Seller unless and until (a) the
Agreement has been approved in writing by Seller's appropriate management
authority and (b) this Agreement has been fully executed by Seller and Purchaser
and an executed copy is delivered to Seller.
33. No Liability. No individual officers, directors, shareholders, agents or
representatives of Seller or of Purchaser shall have any personal liability
under this Agreement, either for the observance or performance of such party's
rights, duties or obligations hereunder, or for the default of such party to
observe and perform its obligations hereunder, or under any document executed in
connection with the transactions contemplated hereby, or otherwise.
29
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
SELLER
BANK OF AMERICA, N.A.
By:__________________________________________
Xxxxxx Xxxxxxxxx, Senior Vice President
Date of Execution:_________________
PURCHASER
AMERICAN FINANCIAL RESOURCE GROUP, LLC
By:__________________________________________
Xxxxxxxx Xxxxxxxx, Manager
Date of Execution:_________________
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LIST OF EXHIBITS/1/
Exhibit A Form of Addendum
Exhibit B Form of Appraisal
Exhibit C-1 Form of Letter of Credit for Secured Liability
Exhibit C-2 Form of Pledge Agreement for Secured Liability
Exhibit D Form of Lease Assignment and Assumption Agreement with Seller
as Lessor
Exhibit E Form of Xxxx of Sale
Exhibit F Form of Lease Assignment and Assumption Agreement with Seller
as Lessee
Exhibit G FIRPTA Affidavit
Exhibit H Seller's Certificate of Representations and Warranties
Exhibit I Purchaser's Certificate of Representations and Warranties
Exhibit J-1 Escrow Instructions
Exhibit J-2 Form of Letter of Credit for Deposit
Exhibit J-3 Form of Pledge Agreement for Deposit
Exhibit K Form of Permanent Use Restrictions
__________________________
NOTE: All Exhibits not attached and initialed upon execution of this Agreement
shall be prepared, agreed upon, initialed and attached to this Agreement within
ten business days after the date of this Agreement. Should the parties be unable
to agree upon the form of all Exhibits within the aforesaid time, either party
shall have the right to terminate this Agreement by written notice to the other.
31
