Exhibit 10.11
PURCHASE AND SALE AGREEMENT
BETWEEN
PREFCO FIVE LIMITED PARTNERSHIP,
A CONNECTICUT LIMITED PARTNERSHIP
("PREFCO")
AND
AMERICAN FINANCIAL RESOURCE GROUP, LLC
A DELAWARE LIMITED LIABILITY COMPANY
("PURCHASER"),
PREFCO V HOLDINGS LLC,
A CONNECTICUT LIMITED LIABILITY COMPANY
("GENERAL PARTNER"),
AND PITNEY XXXXX REAL ESTATE FINANCING CORPORATION,
A DELAWARE CORPORATION
("LIMITED PARTNER")
February ___, 2002
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the ____
day of February, 2002 between PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut
limited partnership (successor in interest to PREFCO V Limited Partnership,
"Prefco"), AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware limited liability
company (together with any of its assignees, "Purchaser"), and PREFCO V HOLDINGS
LLC, a Connecticut limited liability company (the "General Partner") and PITNEY
XXXXX REAL ESTATE FINANCING CORPORATION, a Delaware corporation (the "Limited
Partner", and, together with the General Partner, the "Partners").
Preliminary Statement
WHEREAS, Prefco is the owner (i) of an estate for years (the "Estate for
Years") expiring on August 31, 2010 (the "Estate for Years Expiration Date") in
those certain parcels of land more particularly described in Exhibits A-1
through A-85 annexed hereto and made a part hereof (the "Land"), and (ii) in fee
of (a) all buildings, improvements and structures now or hereafter located on
the Land (the "Improvements") and (b) certain equipment and fixtures attached
thereto (the Estate for Years, Option Rights (defined below), Improvements,
equipment, and fixtures are hereinafter collectively referred to as the
"Property"); and
WHEREAS, Carolina-Relco Limited Partnership, a Connecticut limited
partnership ("Remainderman"), is the fee owner of the Land, subject to the
Estate for Years; and
WHEREAS, the Property is subject to the terms and conditions of that
certain lease (the "Lease") between Prefco, as landlord, and First Union
Corporation and First Union National Bank, successor in interest by merger or
otherwise, as tenant ("Lessee"), as more fully described in Exhibit B annexed
hereto and made a part hereof; and
WHEREAS, the Land and the Property are encumbered by that certain mortgage
described in Exhibit C annexed hereto and made a part hereof (which mortgage,
together with the promissory notes secured thereby and any related loan
documents, are together called the "Mortgage"); and
WHEREAS, Prefco, Remainderman and Lessee are parties to that certain
agreement (the "Tripartite Agreement") dated as of July 31, 1990 setting forth
the understanding among the parties with respect to certain rights of the lessee
under the Lease relating to the purchase of the Property and the Land and
certain other matters; and
WHEREAS, Prefco desires to convey all of its right, title and interest in
and to the Property, and Purchaser desires to purchase all of Prefco's interest
in the Property; and
WHEREAS, the Purchaser and PREFCO may, at the option of either party,
structure the transaction contemplated hereby as a purchase and sale of all of
the partnership interests in Prefco (the "Partnership Interests"), in which
event each Partner would convey all of its right, title and interest in and to
the Partnership Interests held by it to Purchaser.
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NOW, THEREFORE, for and in consideration of the premises and the mutual
representations, warranties and covenants contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Prefco, Partners and Purchaser hereby agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and subject to
the terms and conditions of this Agreement, Prefco shall sell, assign and
convey, and Purchaser or its assignee shall purchase, the Property on the terms
and conditions provided in this Agreement.
2. Closing Documents. On the Closing Date and subject to the terms and
conditions of this Agreement, Prefco, Partners and Purchaser shall enter into
the Closing Documents to which they are a party.
3. Purchase Price. Purchaser shall pay, and Prefco shall accept, as the
purchase price (the "Purchase Price") for the Property, in addition to
Purchaser's acquiring the Property subject to the Mortgage (or Purchaser
prepaying all or any part of the loan as evidenced by those certain Series A
9.70% Secured Note Due 2000, Series B 9.91% Secured Note Due 2004, Series C
10.01% Secured Note Due 2007, Series D 10.01% Secured Note Due 2010, Series E
10.42% Secured Note Due 2010, Series F 10.55% Secured Note due 2010 (the
"Notes"), which Notes are secured by the Mortgage, as more fully set forth
below), the amount of Fifty Two Million One Hundred Thousand and 00/100 Dollars
($52,100,000.00), as increased or decreased pursuant to the provisions of
Sections 7 and 13 hereof, which Purchase Price shall be paid by Purchaser as
follows:
(i) simultaneously with the execution of this Agreement, Purchaser
shall deposit with the Title Company (as defined is Section 7 (ii) hereof), as
escrow agent (the "Escrow Agent"), the sum of Two Hundred Fifty Thousand and
00/100 Dollars ($250,000.00) (together with any interest earned thereon, the
"Deposit");
(ii) simultaneously with Purchaser's satisfaction or waiver of the
conditions precedent set forth in Section 7 hereof, Purchaser shall deposit with
Escrow Agent the sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00), which amount will be added to and become part of the Deposit; and
(iii) At Closing, Purchaser shall pay or shall cause the Escrow Agent
to pay to Prefco (or its designees) the Deposit ($500,000.00 plus accrued
interest thereon) plus the balance of the Purchase Price in the amount of Fifty
One Million Six Hundred Thousand and 00/100 Dollars ($51,600,000.00)(as
increased or decreased pursuant to the provisions of Sections 7 and 13 hereof)
in immediately available funds by wire transfer to accounts designated by
Prefco. Purchaser acknowledges that the Property is subject to the Mortgage and
that the Purchase Price shall not be diminished or otherwise reduced by reason
thereof, including, without limitation, reductions by reason of the pay off of
all or any part of the existing financing, prepayment penalties, or otherwise
(whether Purchaser elects to prepay all or any part of the loan as evidenced by
the Notes and secured by the Mortgage).
4. Deposit; Escrow Terms. The Deposit shall be deposited by Escrow Agent in
an interest bearing account and the interest shall be payable to whichever party
is entitled to
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receive the Deposit. The parties acknowledge that Escrow Agent is holding the
Deposit and interest thereon solely as a stakeholder at their request and for
their convenience, that Escrow Agent shall not be deemed to be the agent of
either party in carrying out its role as Escrow Agent hereunder, and that Escrow
Agent shall not be liable to either party for any act or omission on its part
unless taken or suffered in bad faith or in willful disregard of this Agreement
or involving its gross negligence. Prefco and Purchaser shall jointly and
severally indemnify and hold Escrow Agent harmless from and against any and all
claims, liabilities and expenses (including reasonable attorneys' fees and
disbursements and court costs) which Escrow Agent may incur in connection with
any dispute over the distribution of the Deposit, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith or in willful
disregard of this Agreement or involving Escrow Agent's gross negligence. Escrow
Agent may act or not act in its role as escrow agent hereunder in full reliance
upon and with the advice of counsel which it may select and shall be fully
protected in so acting or not acting. Escrow Agent has acknowledged its
agreement to act as escrow agent in accordance with this Agreement by signing in
the place indicated on the signature page of this Agreement. Escrow Agent may at
any time discharge its duties hereunder by depositing the Deposit with a court
of competent jurisdiction. If the Closing occurs, the Deposit shall be applied
toward the Purchase Price and paid to Prefco or the Partners, as applicable. If
the Closing does not occur for any reason other than a Purchaser's default, then
the Deposit shall be returned to Purchaser.
5. "As-Is". Purchaser accepts the Property "AS-IS," "WHERE IS," with
all faults and defects as of the date hereof and the Closing Date. Purchaser
represents that it is relying solely upon its inspection of the Property, if
any, for all purposes whatsoever including, without limitation, the
determination of the character, size (including quantity of acreage), condition
(whether environmental or otherwise), accessibility, compliance with applicable
laws, state of repair and title and zoning, except as expressly set forth in
this Agreement. Purchaser acknowledges that there have been no representations,
warranties, guaranties, statements or information of any kind, express or
implied (including, but not limited to, implied warranties of merchantability
and fitness for a particular purpose), made or furnished to Purchaser by Prefco
or any of its employees or agents, except as expressly set forth in this
Agreement. This Section 5 shall survive the termination of this Agreement or the
Closing.
6. Environmental. Prefco makes no representations or warranties to
Purchaser that the Property is now or will be through the Closing Date in
compliance with applicable federal, state, regional, county or local laws,
statutes, rules, regulations or ordinances, concerning environmental matters or
the environment. Without limitation and in furtherance of the foregoing, it is
expressly agreed between Purchaser and Prefco that the Land and Improvements are
being transferred to and accepted by Purchaser pursuant to this Agreement in
their present, strict "AS IS, WHERE IS" environmental condition as of the
Closing Date and with all environmental faults, including without limitation any
environmental defects involving hazardous materials in, on, under or emanating
from the Land or Improvements, whether latent or patent, disclosed or
undisclosed, asserted or unasserted, known or unknown. Purchaser is not relying
on any environmental representation or environmental warranties of any kind
whatsoever, express or implied, from Prefco as to any matter concerning the
environmental condition or environmental quality (surface or subsurface) of the
Land and Improvements and hereby expressly and unconditionally waives and
releases any and all implied warranties relevant to the
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environmental condition and/or environmental quality of the same. Nothing set
forth in any other section of this Agreement shall be interpreted or construed
to be a representation or warranty relating to compliance with environmental,
health and safety matters. This Section 6 shall survive the termination of this
Agreement or the Closing.
7. Approvals and Conditions; Indemnity.
(a) The obligations of Prefco and Purchaser under this Agreement shall
be subject to and contingent upon timely satisfaction of the following
conditions, which conditions, if not satisfied or waived as hereinafter
provided, shall entitle Prefco or Purchaser, as the case may be, to terminate
this Agreement in accordance with (and within the time periods set forth in)
this Section 7:
(i) Review of Documentation Relating to the Property; Physical
Inspection of the Land and Improvements. Prefco has heretofore
provided Purchaser with copies of all documentation concerning
the Property which is in Prefco's possession or control,
including without limitation, any existing title policies
covering Prefco's interest in the Land and Improvements, the
Lease, the Mortgage, the Tripartite Agreement and that certain
Option Agreement dated as of July 31, 1990 between Investment
Partners Leasing Corporation and Prefco (the "Option Agreement").
In addition, Prefco covenants and agrees to send Lessee the
letter in the form attached hereto as Exhibit G, and to use
commercially reasonable efforts in obtaining the materials
requested therein; provided, however, that such commercially
reasonable efforts shall not be construed to require Prefco to
threaten or initiate litigation, grant any concession or pay any
consideration. Prefco shall continue to cooperate with Purchaser
in providing information and documents to assist in Purchaser's
investigation of the Property. Purchaser may, at Purchaser's sole
risk and expense, undertake such physical inspection of the Land
and Improvements as Purchaser deems necessary or appropriate
subject to the rights of Lessee under the Lease.
Notwithstanding any other provisions contained in this Agreement
to the contrary, Purchaser understands and agrees that any
on-site inspections of the Property shall be conducted in
accordance with the provisions of the Lease. Purchaser agrees to
indemnify against and hold Prefco harmless from any claims by
third parties for liabilities, costs, expenses (including
reasonable attorney's fees), damages or injuries arising out of
or resulting from the inspection by Purchaser or its agents, and
notwithstanding anything to the contrary in this Agreement, such
obligation to indemnify and hold Prefco harmless shall survive
Closing or any termination of this Agreement. All on-site
inspections shall occur at any reasonable time during normal
business hours, upon the giving of reasonable notice, if the
inspecting parties take precautions not to unreasonably
inconvenience Tenant or any persons occupying the Property in
accordance with the Lease, and are accompanied by an employee or
other representative of
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Tenant at all times during such entry or inspection.
Notwithstanding anything contained in the foregoing to the
contrary, Purchaser understands and agrees that it may be
excluded from inspecting areas of the Property designated as
security areas by Tenant, including, without limitation, vaults,
modular vaults and automatic teller machines. Without limitation
of the foregoing, Prefco agrees to afford Purchaser and a
reasonable number of its authorized agents, at reasonable, the
right to communicate with Lessee, any subtenants of Lessee (with
the permission of Lessee), and Remainderman, provided that Prefco
shall be entitled to have a representative present, whether in
person or by telephone, as the case may be, during any such
communications between Purchaser and such parties.
Upon the termination of this Agreement in accordance with its
terms, Purchaser shall keep confidential all such information and
if requested by Prefco, shall furnish to Prefco copies of the
written reports, summaries, analyses or results of all such
inspections, which Prefco may use or may disclose to any
potential purchaser of the Property. Purchaser shall pay in full,
prior to delinquency, all bills and invoices for labor and
material of any kind arising from the inspection of the Land and
Improvements. If there is any damage to or disturbance of any
portion of the Land and Improvements in connection with any
inspection thereof, Purchaser shall restore such portion of the
Land and Improvements as nearly as practicable to its original
condition prior to such damage or disturbance including, without
limitation, damage to landscaping or trees.
Purchaser shall have sixty (60) days from the date hereof (the
"Inspection Period") within which it may, at its sole cost and
expense, review the documentation (including, without limitation,
the Option Agreement, Lease and Tripartite Agreement) and the
physical and environmental condition of the Land and
Improvements. Purchaser shall have until the end of the
Inspection Period to disapprove of the documentation and/or the
physical and environmental condition of the Land and Improvements
and to terminate this Agreement by delivering a written notice (a
"Termination Notice") to Prefco on or before the expiration of
the Inspection Period, with time being of the essence with
respect to Purchaser's obligation to deliver such notice. If for
any reason whatsoever Purchaser determines, in its sole
discretion, that the Property, the documentation or any aspect
thereof is unsuitable for Purchaser's acquisition, Purchaser
shall have the right to terminate this Agreement by delivering
said Termination Notice to Prefco prior to the expiration of the
Inspection Period, and if Purchaser gives such notice of
termination within the Inspection Period, this Agreement shall
terminate, and the provisions of Section 7(b) shall control. If
Purchaser decides to go forward with the purchase at or prior to
the end of the Inspection Period, it will deliver written notice
(an "Approval Notice") to Prefco to that effect. If Prefco does
not receive an Approval Notice or a Termination Notice from
Purchaser before the end of
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the Inspection Period, with time being of the essence, Purchaser
shall be deemed to have disapproved of the documentation and the
physical and environmental condition of the Land and Improvements
and all other matters relating thereto, and Purchaser shall be
considered to have delivered a Termination Notice in accordance
with the provisions hereof.
The provisions of this Section 7(a)(i) shall survive termination
of this Agreement or Closing.
(ii) Approval of Title and Survey. Upon execution of this
Agreement, Purchaser shall be entitled, but shall not be
required, to order (A) a commitment for an owner's policy of
title insurance (the "Commitment") issued by a title company
selected by Purchaser and approved by Prefco (the "Title
Company") pursuant to which the Title Company commits to issue an
owner's policy of title insurance in such amounts as are
reasonably requested by Purchaser (the "Title Policy") and (B) a
survey of the Land (the "Survey") in form acceptable to Purchaser
and the Title Company (in the event Purchaser elects to obtain
title insurance). The costs of the Title Policy (together with
any endorsements requested by Purchaser) and Survey shall be paid
by Purchaser. During the Inspection Period, Purchaser shall have
the opportunity to review the condition of title and survey. At
any time prior to the expiration of the Inspection Period,
Purchaser may disapprove the Survey and the title exceptions, by
delivering written notice (a "Disapproval Notice") to Prefco
stating with particularity the exceptions which Purchaser
disapproves and the reasons for such disapproval. Time is of the
essence with respect to Purchaser's obligation to deliver such
Disapproval Notice. Prefco, at its option, shall have fifteen
(15) days, from and after delivery of Purchaser's Disapproval
Notice, to agree to undertake to cause the surveyor or the Title
Company, as the case may be, to remove such objectionable
exceptions. Purchaser acknowledges that Prefco shall not be
obligated to undertake to cause the Title Company to remove any
of the title exceptions. If Prefco agrees to undertake to remove
any objectionable exceptions, Prefco will use diligent efforts to
cause the removal of such exceptions within thirty (30) days
after it agrees to such undertaking, provided however that the
Scheduled Closing Date may be adjourned by Prefco, if necessary,
for an additional period of sixty (60) days to remove such
objectionable exceptions (provided that Prefco is diligently
pursuing such removal). If Prefco does not agree to undertake to
remove such exceptions or shall fail to remove such objectionable
exceptions within such time, Purchaser may (a) elect to waive its
objections and close on the Closing Date, (b) terminate this
Agreement by delivering a Termination Notice to Prefco within
three (3) business days after Prefco's failure to remove such
exceptions, or (c) terminate this Agreement by delivering a
Termination Notice to Prefco within three (3) business days after
Prefco's failure to remove such exceptions with respect to the
particular property for which it sent a
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Disapproval Notice; provided, however, that Purchaser shall not
be permitted to terminate this Agreement with respect to a
particular property or properties for which it sent a Disapproval
Notice which, individually or in the aggregate, constitute
greater than five percent (5.0%) of the equity value of all
Properties. In the event Purchaser elects option (c) as set forth
in the immediately preceding sentence, Purchaser shall be
entitled to receive a credit in its favor against the Purchase
Price in respect of due diligence expenses, such due diligence
expenses not to exceed Five Thousand and 00/100 Dollars
($5,000.00) for each property that Purchaser has terminated this
Agreement with respect to in accordance with the foregoing
provisions. Notwithstanding the foregoing, Purchaser shall not be
entitled to any such reimbursement if the transaction
contemplated by this Agreement does not close for any reason
whatsoever, and shall not be entitled to any such reimbursement
in an amount greater than Fifty Thousand and 00/100 Dollars
($50,000.00). Purchaser's failure to respond within such three
(3) business day period shall be deemed an election to terminate
this Agreement, and the provisions of Section 7(b) shall control.
In the event Prefco does not receive a Disapproval Notice from
Purchaser prior to the end of the Inspection Period, with time
being of the essence, Purchaser shall be deemed to have approved
the Survey and the condition of title as set forth in the
Commitment through the last day of the Inspection Period. Any
title exceptions or survey exceptions not objected to by
Purchaser or otherwise waived and accepted by Purchaser shall be
deemed "Permitted Exceptions" to the conveyance to Purchaser by
Prefco.
Purchaser may, at or prior to Closing, notify Prefco in writing
(the "Gap Notice") of any objections to title: (a) raised by the
Title Company between the expiration of the Inspection Period and
the Closing; and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the expiration of the
Inspection Period. If Purchaser sends a Gap Notice to Prefco,
Purchaser and Prefco shall have the same rights and obligations
with respect to such notice as apply to a Disapproval Notice in
accordance with the provisions of this Section 7(a)(ii).
In addition to and without limiting the foregoing, Purchaser
shall verbally inform Prefco not more than thirty (30) nor less
than twenty (20) days after the date hereof, and from time to
time thereafter at Prefco's reasonable request, of the status of
Purchaser's document review (including without limitation title
and survey) and Property inspection pursuant to this Section 7,
including a statement of those items and/or documents which
Purchaser is still reviewing and/or inspecting with respect to
the Property.
(b) Effect of Termination. If this Agreement is terminated pursuant
to this Section 7, the Deposit shall be refunded to Purchaser and Purchaser
shall return to Prefco or destroy on behalf of Prefco all documents delivered by
Prefco to Purchaser pursuant to this Agreement. Upon completion of all of the
foregoing, this Agreement shall be deemed terminated
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and no party shall have any further rights against or obligations to the other
parties hereunder, except as to those obligations which are expressly stated to
survive the termination of this Agreement.
(c) Indemnity. Purchaser shall indemnify and hold harmless Prefco from and
against any and all liability, loss, cost and expense (including, without
limitation, reasonable attorneys' fees and disbursements) arising from any
action by Purchaser or any of its agents, employees or contractors in connection
with any entry onto the Land and Improvements and/or any physical inspection of
the same. This provision shall survive the termination of this Agreement or the
Closing.
8. Costs; Prorations. Except as otherwise provided by this Agreement, each
party shall pay the out-of-pocket costs and expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby. Subject
to the terms and provisions of this Agreement, in the event Purchaser elects to
prepay some or all of the loan as evidenced by the Notes and secured by the
Mortgage, any costs incurred in connection with the prepayment of all or any
part of said loan, as evidenced by the Notes and secured by the Mortgage and
payable to the holder thereof shall be paid by Purchaser upon demand, whether or
not this Closing shall occur. There shall be no apportionments, except for any
rent under the Lease in excess of debt service on the Mortgage, which excess
will be pro-rated from the immediately preceding rent and debt service payment
date to and including the Closing Date (all other expenses being the
responsibility of the Lessee under the Lease both before and after the Closing
Date).
9. Remedies on Default.
(i) Default by Purchaser. In the event that Closing fails to occur by
reason of a default by Purchaser, Prefco shall be entitled, as its sole remedy,
to terminate this Agreement and receive the Deposit as liquidated damages for
default under this Agreement; it being agreed between the parties hereto that
the actual damages to Prefco in the event of such default are impractical to
ascertain and the amount of the Deposit is a reasonable estimate thereof.
(ii) Default by Prefco. In the event that Prefco or any Partner
defaults in the performance of its obligations under this Agreement for any
reason other than Purchaser's default, Purchaser shall be entitled to (a)
terminate this Agreement and receive the return of the Deposit, or (b) seek
specific performance of this Agreement by Prefco or the Partners.
Notwithstanding the foregoing, in the event that all of the closing conditions
set forth in this Agreement have been satisfied, including, without limitation,
those set forth in Section 13 hereof, and thereafter Prefco or any Partner
willfully defaults in the performance of this Agreement, Purchaser shall be
permitted to pursue an action for damages against Prefco and the Partners
relative to such willful default, but such damages shall in no event exceed the
lesser of Purchaser's actual reasonable out of pocket expenses or the sum of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). Purchaser acknowledges
and agrees that in no event shall Prefco's or any Partner's liability pursuant
to this Section 9(ii) exceed the lesser of Purchaser's actual reasonable out of
pocket expenses or the sum or Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00). As a condition precedent to Purchaser's right to pursue an action
for damages as set forth above, Purchaser shall be ready, willing and able to
perform all of its
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covenants and obligations to be performed or delivered on or before the Closing
including, without limitation, delivery of the balance of the Purchase Price. If
Purchaser fails to satisfy such requirements, Prefco shall be entitled to an
immediate dismissal of any action for damages and an immediate removal of any
lis pendens affecting the Property.
10. Insurance; Casualty or Condemnation. If any portion of the
Improvements are materially damaged or destroyed by fire or other casualty prior
to the Closing, or in the event Prefco shall receive notice of any taking or any
threatened taking of all or any material portion of the Land or Improvements,
this Agreement shall nevertheless remain in full force and effect, without any
adjournment of the Closing Date and without any adjustment of the Purchase
Price. Prefco and each Partner shall assign all of its rights in and to any
interest it may have to the proceeds payable by any party to Prefco or the
Partner, if any, as a result of such casualty or condemnation affecting the Land
or Improvements, as applicable.
11. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Prefco as of the date hereof as follows,
which representations, warranties and covenants shall be deemed to have been
made again as of the Closing:
(a) Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of Delaware and is
duly qualified as a foreign entity in each jurisdiction where the
nature of its business or the character of its properties
requires such qualification;
(b) Purchaser has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of
the Closing Documents (as hereinafter defined) and to perform its
obligations under this Agreement and each of the Closing
Documents; and the individual executing this Agreement on behalf
of Purchaser hereby represents and warrants that he, she or it
has the capacity set forth on the signature page hereof with full
power and authority to bind Purchaser to the terms hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Purchaser and constitutes a legal,
valid and binding obligation of Purchaser enforceable against it
in accordance with its terms except as the enforcement may be
limited by (i) the effect of the laws and judicial decisions of
the State of Delaware, (ii) the discretion of any court or
governmental or public body, authority, bureau or agency before
which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally;
(d) to the best of Purchaser's knowledge, no consent, license,
approval or authorization of, or filing, registration or
declaration with, or exemption by, any governmental or public
body, authority, bureau or agency is required in connection with
the execution, delivery or performance by Purchaser of this
Agreement and all of the other Closing Documents, other
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than those which have been obtained;
(e) Purchaser's execution, delivery and performance of this Agreement
and the other Closing Documents does not and will not violate (i)
Purchaser's certificate of formation, operating agreement or the
terms of any security issued by it, or (ii) to the best of
Purchaser's knowledge, any law, governmental regulation,
judgment, order, writ, injunction or decree applicable to
Purchaser in any manner which will materially adversely affect
Purchasers ability to perform its obligations hereunder, (iii)
provided that all necessary consents are obtained, do not and
will not constitute a default or event of default under any
instrument, contract, agreement, lease or other undertaking to
which Purchaser is a party or by which it or any of its
properties may be subject or bound in a manner which will
materially adversely affect its ability to perform the same, or
(iv) do not result and will not result in the creation or
imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property, except as permitted by the
Closing Documents;
(f) to the best of Purchaser's knowledge without any inquiry, there
is no action, suit or proceeding pending or to the best of
Purchaser's knowledge, threatened against or affecting Purchaser
in any court, or by or before any federal, state, municipal or
other governmental department, commission, board, bureau or
instrumentality which would have any effect on Purchaser's
ability to execute and perform its obligations under this
Agreement;
(g) Purchaser has not dealt with any broker, agent or finder in
connection with the transaction contemplated by this Agreement.
To the extent Purchaser engages a broker in connection with
obtaining financing for the acquisition of the Property, the
obligations with respect to such broker in connection with such
financing shall be the responsibility of Purchaser. Purchaser
shall indemnify and hold harmless Prefco from and against any
cost, expense (including without limitation reasonable attorneys'
fees and disbursements), claim, liability or damage arising out
of any claim or demand by any broker, consultant, finder or
similar agent claiming to have dealt with Purchaser in connection
with this Agreement and the transaction contemplated hereby;
(h) Purchaser and each of Purchaser's assignees, if any, shall comply
with all the requirements, representations, covenants and
negative covenants, as the same may be amended from time to time,
contained in the Lease, the Tripartite Agreement and the Option
Agreement (the foregoing documents are hereinafter collectively
referred to as the "Operative Documents");
(i) Purchaser has not filed any voluntary petition in bankruptcy or
been adjudicated a bankrupt or insolvent, or filed any petition
or answer seeking any reorganization, liquidation, dissolution or
similar or other relief for
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debtors, or sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator or liquidator
for all or any substantial part of its properties; and
(j) the making, execution and delivery of this Agreement by Purchaser
has been induced by no representations, warranties, covenants or
agreements other than those expressly set forth in this
Agreement.
12. Representations, Warranties and Covenants of Prefco. Prefco
represents, warrants and covenants to Purchaser as of the date hereof as
follows, which representations, warranties and covenants shall be deemed to have
been made again as of the Closing:
(a) Prefco has all requisite power and authority to carry on its
business and to perform its obligations under this Agreement and
each of the other Closing Documents;
(b) Prefco is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Connecticut
and has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of
the other Closing Documents; and the individual executing this
Agreement on behalf of Prefco hereby represents and warrants that
he, she or it has the capacity set forth on the signature page
hereof with full power and authority to bind Prefco to the terms
hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Prefco and constitutes a legal,
valid and binding obligation of Prefco enforceable against it in
accordance with its terms except as the enforcement may be
limited by (i) the effect of the laws and judicial decisions of
the State of Connecticut, (ii) the discretion of any court or
governmental or public body, authority, bureau or agency before
which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally;
(d) to the best of Prefco's knowledge, no consent, license, approval
or authorization of, or filing, registration or declaration with,
or exemption or other action by, any governmental or public body,
authority, bureau or agency is required in connection with the
execution, delivery or performance by Prefco of this Agreement or
the transactions herein contemplated or the Closing Documents to
which it is a party other than those which have been obtained;
(e) Prefco's performance, execution and delivery of this Agreement
and the other Closing Documents (i) do not and will not violate
(x) Prefco's limited partnership agreement or the terms of any
security issued by it, or (y) to the best of Prefco's knowledge,
any law, governmental regulation, judgment, order, writ,
injunction or decree applicable to Prefco in any
11
manner which will materially adversely affect Prefco's ability to
perform its obligations hereunder, (ii) provided that all
necessary consents are obtained (including, without limitation,
consents of the registered owners of the Notes and any other
applicable party), do not and will not violate the provisions of,
or constitute a default or an event of default under the
Mortgage, (iii) provided that all necessary consents are
obtained, do not and will not constitute a default or an event of
default under any instrument, contract, agreement, lease or other
undertaking to which Prefco is a party or by which any of its
properties may be subject or bound in a manner which will
materially adversely effect its ability to perform the same; or
(iv) do not result and will not result in the creation or
imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property pursuant to such agreement
or instrument, except as permitted by the Closing Documents;
(f) to the best of Prefco's knowledge without any inquiry, there is
no action, suit or proceeding pending or threatened against or
affecting Prefco or the Property in any court, or by or before
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would
have any effect on Prefco's ability to execute and perform its
obligations under this Agreement;
(g) Prefco is not a "foreign person" as defined in Section 1445 of
the Internal Revenue Code;
(h) Prefco has not filed any voluntary petition in bankruptcy or been
adjudicated a bankrupt or insolvent, or filed any petition or
answer seeking any reorganization, liquidation, dissolution or
similar relief under any federal bankruptcy or insolvency laws,
or other relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver,
conservator or liquidator of all or any substantial part of its
properties or interest in the Land or the Property;
(i) Prefco has not dealt with any broker in the negotiations of the
transactions contemplated by this Agreement. Prefco shall
indemnify and hold harmless Purchaser from and against any cost,
expense (including without limitation reasonable attorneys' fees
and disbursements), claim, liability or damage arising out of any
claim or demand by any broker, consultant, finder or similar
agent claiming to have dealt with Prefco in connection with this
Agreement and the transaction contemplated hereby;
(j) to Prefco's actual knowledge, the Lease is in full force and
effect and has not been modified, except by that certain
Agreement Re: Modification of Lease, dated November 27, 1995,
that certain Modification Agreement dated as of September 30,
1992, that certain Modification Agreement dated as of January 22,
1996, and that certain Modification Agreement dated as of
December 20, 1999, and Prefco has no actual knowledge of
12
any current material default in the performance of the
obligations of any party under the Lease;
(k) after the date hereof and prior to the Closing, except as
required under the Lease, Prefco shall not sell or otherwise
transfer without Purchaser's consent any part of the Property, or
any interest therein (provided, however, that Purchaser
acknowledges Prefco is permitted to enter into negotiations for
the sale of the Property, and, at such time, Purchaser shall
deliver its consent to Prefco (without delay) to enter into such
negotiations);
(l) after the date hereof and prior to the Closing, except as
required under the Lease, Prefco shall not enter into or approve
any new leases and/or subleases of the Land and Improvements, or
amend, modify or extend the Lease, without the prior written
consent of Purchaser (which consent shall not be unreasonably
withheld or delayed), except as required pursuant to the terms
and conditions of the Lease;
(m) to the best of Prefco's knowledge, Prefco is the owner of the
Estate for Years in the Land, and, to the best of Prefco's
knowledge, is the fee owner of the Improvements and Property, all
of which are subject to the Permitted Exceptions. Notwithstanding
the foregoing, Prefco makes no representations, warranties or
covenants with respect to any title matters, it being expressly
agreed that Purchaser is relying solely on title insurance
commitments issued by the Title Company with respect to such
matters;
(n) the making, execution and delivery of this Agreement by Prefco
has been induced by no representations, warranties, covenants or
agreements other than those expressly set forth in this
Agreement; and
(o) to the best of Prefco's knowledge, Prefco has not received any
written condemnation notice with respect to the Property, except
that (a) Prefco was requested to donate certain property and
grant an easement to the Gwinnett County Department of
Transportation of Georgia with respect to certain property
located at 0000 X. Xxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx and 0000
Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx, and (b) Prefco was
recently contacted by the Georgia Department of Transportation
with respect to a road widening project with respect to property
located at __________________________, the details of which are
as of yet unknown.
13. Closing; Conditions to Closing.
(a) Closing. As used herein, "Closing" shall mean the closing of the
transactions contemplated herein on the Closing Date (as hereinafter defined).
Either party shall have the option, exercisable by such party by delivery of
written notice to the other party and the Partners within five (5) days prior to
the Closing Date (the "Equity Purchase Notice"), to restructure the transaction
contemplated hereby as a purchase and sale of all of the outstanding Partnership
13
Interests in Prefco ("Equity Purchase"). In the event either party exercises
such option, the parties hereto hereby agree that this Agreement shall
automatically be amended as set forth on Exhibit I hereto; provided, however,
that if either party objects to consummating the transaction as an Equity
Purchase, which such objection must be exercised, if at all, by providing
written notice of such objection to the other party and the Partners within one
(1) day of the receipt of the Equity Purchase Notice (the "Equity Purchase
Objection Notice"), then such Equity Purchase Objection Notice shall be deemed
void, and the transaction shall proceed as previously contemplated subject to
the provisions of this Agreement, with each party bearing one-half (1/2) of any
transfer taxes required pursuant to applicable law. The Closing shall take place
through an escrow with the Title Company with the closing documents and actions
not previously delivered or taken to be delivered to the Title Company or taken
on or before the Closing Date in New York, New York at the offices of Prefco's
attorneys, as specified by Prefco. The Closing Date shall be on or before April
30, 2002 (the "Scheduled Closing Date") (the Scheduled Closing Date, as
adjourned from time to time as provided for more fully below shall be the
"Closing Date"). At any time after the expiration of the Inspection Period and
prior to the Scheduled Closing Date, Purchaser may adjourn the Scheduled Closing
Date as hereinafter provided. Purchaser may adjourn the Scheduled Closing Date
for a period of up to thirty (30) days (the "First Adjournment Option") by
delivering written notice of such adjournment to Prefco on or before the
Scheduled Closing Date. In the event Purchaser exercises the First Adjournment
Option, Purchaser may further adjourn the adjourned Closing Date for an
additional period of up to thirty (30) days (the "Second Adjournment Option") by
delivering written notice of the exercise of such Second Adjournment Option to
Prefco, provided, that in no event may the Closing be extended to a date which
is later than June 28, 2002, 2002. In the event Purchaser exercises the First
Adjournment Option, the Purchase Price shall be increased in the amount of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) and, in the event
Purchaser exercises the Second Adjournment Option, the Purchase Price shall be
increased in the additional amount of Two Hundred Fifty Thousand and 00/100
Dollars ($250,000.00).
(b) Conditions to Closing (Purchaser). Purchaser's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Prefco shall deliver an estoppel certificate to Purchaser from
Lessee in the form attached hereto as Exhibit D.
(ii) Prefco shall deliver an estoppel certificate to Purchaser from
Prefco in the form attached hereto as Exhibit H.
(iii) The Lessee and any third parties enjoying a right of first
refusal or other similar rights to purchase the Property, if any, shall have
waived said rights. This condition may not be waived by Prefco or Purchaser.
(iv) In the event Purchaser elects to assume the obligations under
the Mortgage, Purchaser shall have obtained the right to assume such Mortgage
from the
14
beneficiaries holding the Mortgage or, if Purchaser elects to prepay all or any
part of the obligations evidenced by the Notes and secured by the Mortgage,
Purchaser shall have obtained the requisite consent to make such prepayment from
all necessary parties.
(v) Purchaser shall have reached a separate agreement with
Remainderman, on terms mutually acceptable to Purchaser and Remainderman, for
the purchase of said Remainderman's fee interest in the Land. Prefco shall only
be required to use commercially reasonable efforts in assisting Purchaser in
such negotiations, and such commercially reasonable efforts shall not, without
limitation, be construed to require Prefco to grant any concession or pay any
consideration
(vi) Prefco shall have obtained any consents identified in Section
12(e) hereof.
(vii) All of the representations and warranties of Prefco contained
in this Agreement shall be true and correct as of the date of Closing and Prefco
shall have performed and satisfied all agreements, covenants and conditions it
is required to perform and satisfy under this Agreement prior to or at Closing,
or, in the event this Agreement is restructured as an Equity Purchase, all of
the representations and warranties of Prefco and the Partners contained in this
Agreement shall be true and correct as of the date of Closing and Prefco and the
Partners shall have performed and satisfied all agreements, covenants and
conditions that they are required perform and satisfy under this Agreement prior
to or at Closing.
(viii) Purchaser shall have received fully executed copies of the
Closing Documents.
(c) Conditions to Closing (Prefco). Prefco's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Prefco shall be able to obtain an estoppel certificate from
Lessee in the form attached hereto as Exhibit D.
(ii) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct as of the date of Closing
and Purchaser shall have performed and satisfied all agreements, covenants and
conditions it is required to perform and satisfy under this Agreement prior to
or at Closing.
(iii) Purchaser shall have paid the Purchase Price as set forth in
Section 3.
(iv) Prefco shall have received fully executed copies of the Closing
Documents.
(d) Failure of Conditions to Closing. In the event one or more of the
conditions to Closing described in Section 13(b) hereof is not satisfied or
waived on or before the Closing, and the failure of such conditions to be
satisfied is not a result of a default by Prefco, Partners or
15
Purchaser, then Purchaser shall have the right to terminate this Agreement and
the escrow created hereby by giving written notice of termination to Prefco. In
the event one or more of the conditions to Closing described in Section 13(c)
hereof are not satisfied or waived on or before the Closing, and the failure of
such conditions to be satisfied is not a result of a default by Prefco, Partners
or Purchaser, then Prefco shall have the right to terminate this Agreement and
the escrow created hereby by giving written notice of termination to Purchaser.
14. Documents to be Delivered at Closing. At or prior to Closing, the
following documents, certificates, opinions and agreements (the "Closing
Documents"), in form and substance satisfactory to Prefco and Purchaser shall be
executed and/or delivered by the respective parties thereto:
(i) Special Warranty Deed to the Estate for Years in Land and fee
simple in Improvements (in substantially the form attached
hereto as Exhibit E-1 with respect to the parcels located in
North Carolina and in substantially the form attached hereto as
Exhibit E-2 with respect to the parcels located in Florida),
and Limited Warranty Deed to the Estate for Years in Land and
fees simple in Improvements (in substantially the form attached
hereto as Exhibit E-3 with respect to the parcels located in
Georgia), unless the transaction is structured as an Equity
Purchase, in which case the foregoing shall not be required;
(ii) an Assignment and Assumption Agreement (in substantially the
form attached hereto as Exhibit F), unless the transaction is
restructured as an Equity Purchase, in which case the foregoing
shall not be required;
(iii) appropriate resolutions and consents of Prefco and/or the
Partners (or evidence that such consent is not required);
(iv) Secretary's certificates and corporate resolutions of Purchaser
and Prefco and/or the Partners;
(v) Incumbency certificates of Prefco and/or the Partners and
Purchaser;
(vi) Good standing certificates of Prefco and/or the Partners and
Purchaser;
(vii) Transfer Tax Affidavits/Forms, if any, unless the transaction
is restructured as an Equity Purchase, in which case the
foregoing shall not be required;
(viii) "Nonforeign" Person Certificates from Prefco pursuant to Treas.
Reg. 1.1445-2T(b)(2), unless the transaction is restructured as
an Equity Purchase, in which case the foregoing shall not be
required;
(ix) any other documents required to transfer to Purchaser all
right, title, and interest of Prefco in, to, or in any way
arising out of or connected with the Property or the Operative
Documents, and, in the event the transaction is
16
restructured as an Equity Purchase, any other documents
required to transfer to Purchaser all right, title, and
interest of the Partners in, to, or in any way arising out of
or connected with the Partnership Interests;
(x) Title affidavits and any other documents reasonably required by
the Title Company;
(xi) Proof as to the waiver and/or lapse of all rights of first
refusal and/or first offer, if any;
(xii) a certificate by each of Prefco and Purchaser (and the Partners
in the event that the transaction is restructured as an Equity
Purchase) to the effect that their respective representations
and warranties contained herein are true and correct as of the
Closing; and
(xiii) Any other documents required pursuant to this Agreement or
reasonably requested by the Title Company.
15. Purchaser's Assignees. Purchaser, at Purchaser's sole cost and
expense, may designate separate assignees to acquire title to the Property, or
in the event that the transaction is restructured as an Equity Purchase, the
Partnership Interests. In the event Purchaser elects to take title to the
Property subject to the Mortgage, any assignment of this Agreement or
Purchaser's rights hereunder shall be subject to the terms of the Mortgage
pertaining to transfers. In the event Purchaser elects to prepay all or any part
of the loan as evidenced by the Notes and secured by the Mortgage, any such
prepayment shall be subject to the terms of the Mortgage and any other
conditions required by the registered owners of such Notes or other applicable
party.
16. Notices. All notices, offers, acceptances, rejections,
consents, requests and other communications hereunder shall be in writing and
shall be deemed to have been given (i) when delivered in person or (ii) when
sent by telecopier (with receipt confirmed) or (iii) on receipt after being sent
by express mail or delivery service guaranteeing overnight delivery, provided
that in the case of clause (ii) a copy is mailed by first class registered or
certified mail, postage prepaid, return receipt requested, in each case
addressed as follows:
As to Prefco and/or Partners: c/o Pitney Xxxxx Credit Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
As to Purchaser: American Financial Resource Group, LLC
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address as either party shall furnish to the other
party in writing.
17. Entire Agreement. This Agreement contains the entire agreement
between Prefco, Partners and Purchaser with respect to the purchase and sale
contemplated hereby and supersedes any prior agreements with respect thereto.
18. Further Acts. Each party, upon the request of the other, agrees to
perform such further acts and to execute and deliver such other documents as are
reasonably necessary to carry out the provisions of this Agreement.
19. Survival of Obligations. The representations, warranties and
indemnities of the parties hereto as set forth in this Agreement shall, except
as otherwise provided in this Agreement, survive the termination of this
Agreement, and shall survive the Closing and the execution, delivery and
recording of the agreements, certificates, instruments and other documents
referred to herein.
20. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
18
22. Governing Law; Consent to Jurisdiction and Venue. This Agreement shall
be construed and interpreted in accordance with the laws of the State of
Connecticut. Prefco, Partners and Purchaser agree that all disputes arising out
of or relating to this Agreement and all actions to enforce this Agreement shall
be exclusively adjudicated in the state courts of Connecticut or the federal
courts sitting in Connecticut or having appellate jurisdiction with respect
thereto and Prefco, Partners and Purchaser hereby irrevocably submit to the
jurisdiction of such courts in any suit, action or proceeding arising out of or
relating to this Agreement or in any action to enforce this Agreement. So far as
is permitted under applicable law, this consent to personal jurisdiction shall
be self-operative and no further instrument or action, other than service of
process as required by law, shall be necessary in order to confer jurisdiction
upon the person of Prefco, Partners or Purchaser in any such court.
23. Exhibits. All of the Exhibits annexed hereto are incorporated herein by
reference and form part of this Agreement.
24. Miscellaneous. In the event that any provision of this Agreement shall
be determined to be void or unenforceable, such determination shall not affect
the remaining provisions of this Agreement; and this Agreement shall not be
construed against the party preparing it but shall be construed as if both
parties prepared this Agreement.
25. Third Parties. This Agreement shall not be deemed to confer in favor of
any third parties any rights whatsoever as third-party beneficiaries, the
parties hereto intending by the provisions hereof to confer no such benefits or
status.
26. Jury Waiver. PREFCO, PARTNERS AND PURCHASER WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTER-CLAIM FILED BY EITHER PARTY (AND THEIR RESPECTIVE NOMINEES, DESIGNEES,
AND ASSIGNEES), WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THIS
AGREEMENT OR THE SALE OF THE PROPERTY OR ANY ACTS OR OMISSIONS OF ANY SUCH
PERSON, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
THIS SECTION 27 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING.
27. Successors and Assigns. Subject to the provisions of Section 16 hereof,
this Agreement shall be binding upon and inure to the benefit of each of the
parties hereto and their respective permitted transferees, successors and
assigns.
28. No Joint Venture. Notwithstanding anything to the contrary contained
herein, this Agreement shall not be deemed or construed to make the parties
hereto partners or joint venturers, or to render either party liable for any of
the debts or obligations of the other, it being the intention of the parties to
merely create the relationship of seller and purchaser with respect to the
Property to be conveyed as contemplated hereby.
29. Confidentiality. Each party agrees to maintain in confidence the
dealings, negotiations and agreements of the parties with respect to this
Agreement and the transaction contemplated hereby, and neither of them shall
make any disclosure of any information regarding
19
those matters (except to their members, officers, directors, employees,
accountants, lenders, attorneys, consultants, appropriate governmental
personnel, and others who have a need for that information and who agree to
comply with this provision, and except as to any information which is a matter
of public record or provided in connection with applicable governmental
proceedings), (a) unless both Prefco and Purchaser otherwise agree in writing,
or (b) except as may be necessary in order to comply with applicable law after
consultation with legal counsel.
30. Saturdays, Sundays or Holidays. In the event that any of the dates
specified in this Agreement shall fall on a Saturday, Sunday or a holiday, then
the date of such action shall be deemed to be extended to the next business day.
31. Section Headings. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
32. Section 1031 Exchange. Purchaser and Prefco agree to execute any
documents necessary for Prefco to effectuate the transfer of the subject
property as reasonably requested by Prefco, including, without limitation, an
assignment of any purchase agreement to a "qualified intermediary" as defined in
Treas. Reg. 1.103(k) - 1(g)(4) if requested by such qualified intermediary in
order for said party to be able to effectuate a "like kind exchange" pursuant to
Internal Revenue Code Section 1031 and the regulations promulgated thereunder,
provided that such actions by Prefco have no material adverse impact on
Purchaser.
33. Cooperation. Prefco, Partners and Purchaser hereby agree to cooperate
with each other in providing all information, documents and other materials
within their reasonable control necessary to assist Purchaser in the
investigation of the Property and Prefco as contemplated by this Agreement.
Purchaser agrees to reasonably cooperate with Prefco and Partners in order to
minimize any transfer taxes and similar taxes imposed on Prefco or Partners in
connection with the transaction, including without limitation, as provided
above, structuring the transaction as a sale of Partnership Interests in Prefco,
provided that Purchaser shall not be required to take any action which will
increase the risks or the costs of the transaction to Purchaser.
34. Interim Covenants. From and after the date hereof and up to and
including the Closing Date or the termination of this Agreement, Prefco and
Partners shall promptly deliver (to the extent actually received by Prefco or
the Partners) to Purchaser copies of written default notices, notices of
lawsuits (including, without limitation, condemnation proceedings), and notices
of violations affecting the Property, Prefco or the Partnership Interests. In
addition, Prefco and the Partners shall deliver (to the extent actually received
by Prefco or the Partners) to Purchaser copies of written default notices,
notices of lawsuits (including, without limitation, condemnation proceedings),
and notices of violations affecting the Property, Prefco or the Partnership
Interests which are now in the possession of Prefco or Partners.
[the remainder of the page is intentionally blank]
20
IN WITNESS WHEREOF, Prefco and Purchaser have caused this
Agreement to be executed, under seal, by their respective signatories thereunto
duly authorized.
PREFCO:
PREFCO FIVE LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its general partner
By: Harlow Aircraft Inc., sole member
By: ___________________________________
Name: _____________________________
Title: ____________________________
PARTNERS:
PREFCO V HOLDINGS LLC, a Connecticut limited
liability company
By: Harlow Aircraft Inc., sole member
By: ___________________________________
Name: _____________________________
Title: ____________________________
PITNEY XXXXX REAL ESTATE FINANCING
CORPORATION, a Delaware corporation
By: __________________________________
Name: ____________________________
Title: ___________________________
21
PURCHASER:
AMERICAN FINANCIAL RESOURCE GROUP, LLC,
a Delaware limited liability company
By: _____________________________________
Name: _______________________________
Title: ______________________________
22
ESCROW AGENT:
By: _____________________________
Name: _______________________
Title: ______________________
23
EXHIBITS A-1 THROUGH A-85
[legal descriptions to be inserted]
EXHIBIT B
Lease
That certain Lease dated July 31, 1990 between First Union Corporation and
First Union National Bank (successor in interest by merger or otherwise), as
lessee, and PREFCO Five Limited Partnership (successor in interest to PREFCO V
Limited Partnership), as lessor, as amended by that certain Agreement Re:
Modification of Lease, dated November 27, 1995, that certain Modification
Agreement dated as of September 30, 1992, that certain Modification Agreement
dated as of January 22, 1996, and that certain Modification Agreement dated as
of December 20, 1999.
EXHIBIT C
Mortgage
That certain Trust Indenture, Deed of Trust and Security Agreement made by
PREFCO V Limited Partnership, a Connecticut Limited Partnership (now known as
Prefco Five Limited Partnership) and Carolina-Relco Limited Partnership, as
grantors, to the Chase Manhattan Bank (National Association) (now known as XX
Xxxxxx Xxxxx Bank) as corporate trustee and Xxxxxxx X. Xxxxxxxxxx (now Xxxxxx X.
Deck) as individual trustee, jointly as the trustees, and the Registered Owners
of Notes, as beneficiaries.
EXHIBIT D
First Union Corporation and First Union National Bank Estoppel Certificate
To: American Financial Resource Group, LLC ("American Financial")
Re: Lease dated July 31, 1990, as amended by that certain Agreement Re:
Modification of Lease dated November 27, 1995, that certain
Modification Agreement dated as of September 30, 1992, that certain
Modification Agreement dated as of January 22, 1996, and that
certain Modification Agreement dated as of December 20, 1999
(collectively "Lease")
Landlord: PREFCO Five Limited Partnership, a Connecticut limited partnership,
successor in interest to PREFCO V Limited Partnership
Tenant: First Union Corporation and First Union National Bank, successor in
interest by merger or otherwise
Premises: See Exhibits "A-1 through A-85" attached hereto and incorporated
herein by reference
Ladies and Gentlemen:
The undersigned is the tenant ("Tenant") pursuant to the Lease. Tenant
understands that Landlord and American Financial have entered into that certain
Purchase and Sale Agreement dated ____________, 2002, and further understands
that American Financial is relying on the statements made by it in this Estoppel
Certificate. Tenant hereby certifies, represents and warrants to American
Financial as follows as of the date set forth below:
1. A true, correct and complete copy of the Lease is attached hereto as
Exhibit B which is incorporated herein by this reference. The Lease has not
been amended, modified, supplemented or superseded in any manner
whatsoever, except as specifically stated above. The Lease constitutes a
complete statement of the agreements, covenants, terms and conditions of
Landlord and Tenant with respect to the letting of the Premises, and there
are no other agreements or understandings between Landlord and Tenant with
respect to the Premises or the Lease, except for that certain Option
Agreement, Option and Subordination Agreement, Tripartite Agreement, and
Assignment of Lease, copies of which are attached hereto as Exhibit C.
2. The term of the Lease commenced on July 31, 1990 and will end on August 31,
2010.
3. The Lease is in full force and effect and has not been terminated with
respect to the Premises.
4. To the best of Tenant's knowledge, there are no defaults under the Lease
(i) in the payment of rent or any other amounts due under the Lease or (ii)
in the observance or performance of
-27-
any other agreement, covenant, term or condition to be observed or
performed by Landlord or Tenant. Tenant has no knowledge of any state of
facts or events that, with the passage of time or the giving of notice, or
both, would constitute a default by Landlord or Tenant.
5. Tenant has paid all installments of: (i) Basic Rent (as defined in the
Lease) that is payable to Landlord through the month of _________, and (ii)
Additional Rent (as defined in the Lease) that is payable to Landlord, if
any, through the month of ________________.
6. To the best of Tenant's knowledge, all conditions under the Lease to be
performed by Landlord have been completed to its satisfaction. To the best
of Tenant's knowledge, there is no work to be performed by Tenant that has
not been completed, and there are no defects or deficiencies that may
entitle Landlord to cancel the Lease or to receive any other benefit or
relief. Tenant has no knowledge that the Premises are not in compliance
with any federal, state or local law, statute, rule, regulation, code or
ordinance applicable to the Premises. Tenant has not received notice of any
"casualty" (as defined in the Lease) or of a pending or threatened
"condemnation" (as defined in the Lease) with respect to the Premises.
Tenant has not given Landlord notice that it intends to terminate the Lease
or to provide a substitute parcel with respect to the Premises pursuant to
Paragraph 13 of the Lease.
7. Landlord did not require a security deposit from Tenant under the Lease.
8. The party executing this Estoppel Certificate on behalf of Tenant is fully
authorized and empowered to do so.
9. Tenant is the sole tenant under the Lease and is the sole tenant in
possession of the Premises, or any portion thereof, except as set forth on
Exhibits D-1 through D-___.
[remainder of page intentionally left blank]
-28-
The certifications, representations and warranties herein made shall be
binding upon Tenant, its heirs, legal representatives, successors and assigns,
and shall inure to benefit of American Financial and its respective successors
and assigns.
Dated: __________________, 2002
FIRST UNION CORPORATION
By: ____________________
Name: ______________
Title: _____________
FIRST UNION NATIONAL BANK
By: ____________________
Name: ______________
Title: _____________
-00-
XXXXXXXX X-0 THROUGH A-85 TO EXHIBIT D
[legal descriptions to be attached at Closing]
-30-
EXHIBIT B TO EXHIBIT D
[lease and all amendments/modifications to be attached at Closing]
-31-
EXHIBIT C TO EXHIBIT D
[option agreement, option and subordination agreement, tripartite
agreement and assignment of lease to be attached at Closing]
EXHIBITS D-1 THROUGH D- TO EXHIBIT D
[insert legal descriptions at Closing]
EXHIBIT X-0
[XXXXX XXXXXXXX - XXXX
XXXXXX AND IMPROVEMENTS]
Prepared by and after recording Property No. _______
return to: Street Address:
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________
Parcel Identification No. ___________
Tax Lot Number: ____________
Excise Tax: $_______________
SPECIAL WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership,
successor in interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited
partnership, the address of which is c/o Pitney Xxxxx Credit Corporation, 00
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("Grantor"), in consideration of Ten
and 00/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, have and by these
presents do grant, bargain, sell, and convey to AMERICAN FINANCIAL RESOURCE
GROUP, LLC, a Delaware limited liability company, having its principal place of
business at ______________________ ("Grantee"), an estate for years ("Land
Estate") in that parcel or parcels of land in the County of ________________,
State of North Carolina, more particularly described on Exhibit A attached
hereto and made a part hereof, and in Grantor's right, title, and interest, if
any, in and to all streets and roads abutting the said parcel or parcels and all
easements, privileges, tenements, hereditaments, and appurtenances belonging
unto said parcel or parcels or in anywise appertaining thereto (the "Premises"),
said Land Estate to terminate at the end of August 31, 2010.
TOGETHER WITH all right, title, and interest of Grantor as the fee owner
of, in, and to all buildings and improvements now located on the Premises and
hereafter located or erected thereon, in replacement of existing buildings and
improvements, whether below or above grade level, and all easements, privileges,
tenements, hereditaments, and appurtenances belonging unto said buildings and
improvements or in anywise appertaining thereto (all such buildings and
improvements being collectively referred to as the "Improvements"), which are
intended to be and remain real property, and to become and remain the sole and
exclusive property of Grantee and its successors and assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are described on Exhibit B attached hereto and made a part
hereof.
TO HAVE AND TO HOLD the Land Estate, and all privileges and appurtenances
thereto belonging, unto Grantee and its successors and assigns through and
including August 31, 2010 and to have and to hold the Improvements unto Grantee
and its successors and assigns forever.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, that title
thereto is marketable and free and clear of all encumbrances except as herein
stated and that, except as herein stated, Grantor will warrant and defend the
title against the lawful claims of all persons claiming by, through or under
Grantor.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee all of
Grantor's interest in the Premises and the Improvements [NOTE: ADDITIONAL
LANGUAGE TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS REMAINDER
INTEREST TO GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designation Grantor and Grantee as used herein shall include said
parties, their successors and assigns, and shall include singular, plural,
masculine, feminine or neuter as required by context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor has caused this deed to be executed and its
seal to be hereto affixed and attested by its officers hereunto duly authorized,
as of the ____ day of _____________, 2002.
GRANTOR:
PREFCO FIVE LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its general
partner
By: Harlow Aircraft Inc., sole member
By: ___________________________
Name: ____________________
Title: ____________________
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of _______________, 2002 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
______________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-1
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-1
[to be added at Closing as set forth in Title Policy]
EXHIBIT E-2
[FLORIDA - LAND
ESTATE AND IMPROVEMENTS]
Prepared by and after recording Property No. _______
return to: Street Address:
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________
Property Appraiser's
Parcel Identification
Number: RE # __________
STATE OF FLORIDA Grantee Tax ID # ________
COUNTY OF _____________
SPECIAL WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
THIS INDENTURE is made as of the ____ day of ______________, 2002, from
PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership, successor in
interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited partnership, the
address of which is c/o Pitney Xxxxx Credit Corporation, 00 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 ("Grantor"), to AMERICAN FINANCIAL RESOURCE GROUP,
LLC, a Delaware limited liability company, having its principal place of
business at ________________________ ("Grantee").
WITNESSETH that Grantor, for and in consideration of the sum or Ten and
00/100 Dollars ($10.00) in hand paid, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby grants,
bargains, and conveys to Grantee an estate for years (the "Land Estate") in the
interest of Grantor in the following (a) that parcel or parcels of land situate,
lying, and being in the County of _____________________, State of Florida, more
particularly described in Exhibit A attached hereto and incorporated herein by
reference, (b) all right, title and interest of Grantor, if any, in and to all
streets and roads abutting the said parcel or parcels and (c) all easements,
privileges, tenements, hereditaments, and appurtenances belonging unto said
parcel or parcels or in anywise appertaining thereto (collectively, the
"Premises"), said estate for years to expire on August 31, 2010.
TOGETHER WITH all of the interest of Grantor as the fee simple owner of,
in, and to all buildings and improvements now located on the Premises, whether
below or above grade
level, and all easements, privileges, tenements, hereditaments, and
appurtenances belonging unto said buildings and improvements or in anywise
appertaining thereto (all such buildings and improvements being collectively
referred to as the "Improvements"), which are intended to be and remain real
property and to become and remain the sole and exclusive property of Grantee and
its successors and assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are set forth on Exhibit B attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Land Estate and all privileges and appurtenances
thereto belonging, unto Grantee and its successors and assigns through and
including August 31, 2010 and to have and to hold the Improvements unto Grantee
and its successors and assigns forever.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, that title
thereto is marketable, and Grantor does hereby specifically warrant the title to
the Land Estate and the Improvements and will defend the same against the lawful
claims of all person claiming by, through, or under Grantor, and no other.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee an estate
for years in the Premises and fee simple title to the Improvements, [NOTE:
ADDITIONAL LANGUAGE TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS
REMAINDER INTEREST TO GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designations Grantor and Grantee as used herein shall include said
parties, their heirs, administrators, executors, successors, and assigns, and
shall include singular, plural, masculine, feminine, or neuter as required by
context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed in
its name by its duly authorized officers and caused its corporate seal to be
hereto affixed the day and year first above written.
GRANTOR:
SIGNED AND SEALED IN PREFCO FIVE LIMITED
THE PRESENCE OF: PARTNERSHIP, a Connecticut limited
Partnership
____________________________
Name:_______________________ By: Prefco V Holdings LLC, a Connecticut
(Type or Print) limited liability company, its general
partner
Name:_______________________ By: Harlow Aircraft Inc., sole member
(Type or Print)
By: ____________________________
Name:_______________________
Title:______________________
[Affix Corporate seal]
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of ___________, 2002 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
_______________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-2
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-2
[to be added at Closing as set forth in Title Policy]
EXHIBIT E-3
[GEORGIA - LAND ESTATE
AND IMPROVEMENTS]
Property Number:_______
Street Address:
__________________
__________________
__________________
Prepared by and after recording
Return to:
___________________
___________________
___________________
___________________
STATE OF GEORGIA
COUNTY OF ____________
LIMITED WARRANTY DEED
(Estate for Years in Land and Fee Simple in Improvements)
THIS INDENTURE is made the ___ day of ____________, 2002 between PREFCO
FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership, successor in
interest to PREFCO V LIMITED PARTNERSHIP, a Connecticut limited partnership
("Grantor"), the address of which is c/o Pitney Xxxxx Credit Corporation, 00
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, to AMERICAN FINANCIAL RESOURCE
GROUP, LLC, a Delaware limited liability company ("Grantee"), having its
principal place of business at_____________________________________.
WITNESSETH that: Grantor, for and in consideration of the sum of Ten and
00/100 Dollars ($10.00) in hand paid at and before the sealing and delivery of
these presents, the receipt and adequacy of which are hereby acknowledged, has
granted, bargained, sold, aliened, conveyed, and confirmed, and by these
presents does grant, bargain, sell, alien, convey, and confirm unto Grantee an
estate for years (the "Land Estate") in that parcel or parcels of land in ______
County, Georgia, more particularly described in Exhibit A attached hereto and
incorporated herein by reference and in Grantor's right, title, and interest, if
any, in and to all streets and roads abutting the said parcel or parcels and all
easements, privileges, tenements, hereditaments, and appurtenances belonging
unto said parcel or parcels or in anywise appertaining thereto (the "Premises"),
said Land Estate to expire
on August 31, 2010.
TOGETHER WITH all right, title, and interest of Grantor as the fee simple
owner of, in, and to all buildings and improvements now located on the Premises
and hereafter located or erected on the Premises in replacement of existing
buildings and improvements, whether below or above grade level, and all
easements, privileges, tenements, hereditaments, and appurtenances belonging
unto said buildings and improvements or in anywise appertaining thereto (all
such buildings and improvements being collectively referred to as the
"Improvements"), which are intended to be and remain real property and to become
and remain the sole and exclusive property of Grantee and its successors and
assigns.
SUBJECT TO only those matters affecting title to the Land Estate and the
Improvements that are set forth on Exhibit B attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Land Estate, with all and singular the rights,
members, privileges, and appurtenances thereof, to the same being, belonging, or
in anywise appertaining, to the only proper use, benefit, and behoof of Grantee
through and including August 31, 2010; and to have and to hold the Improvements,
with all and singular the rights, members, and appurtenances thereof, to the
same being, belonging, or in anyway appertaining, to the only proper use,
benefit, and behoof of Grantee forever in FEE SIMPLE.
And Grantor covenants with Grantee that Grantor is seized of the Land
Estate and the Improvements, has the right to convey the same, title thereto is
marketable, Grantor has done nothing to impair such title as Grantor received,
and Grantor, except as herein stated, will warrant and forever defend the right
and title to the Land Estate and the Improvements unto Grantee against the
claims of all persons owning, holding, or claiming by, through, or under
Grantor.
IT BEING THE INTENT of Grantor and Grantee to convey to Grantee the Land
Estate and the fee simple title in the Improvements [NOTE: ADDITIONAL LANGUAGE
TO BE INCLUDED IN THE EVENT CAROLINA - RELCO SELLS ITS REMAINDER INTEREST TO
GRANTEE PURSUANT TO SEPARATE AGREEMENT].
The designations Grantor and Grantee as used herein shall include said
parties, their heirs, administrators, executors, successors, and assigns, and
shall include singular, plural, masculine, feminine, or neuter as required by
context.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor, by its duly authorized officers, has signed
and sealed this deed the day and year above written.
Signed, sealed, and GRANTOR:
delivered this _____ day
of ___________, 2002 PREFCO FIVE LIMITED
PARTNERSHIP, a Connecticut limited
partnership
____________________
Unofficial Witness By: Prefco V Holdings LLC, a
Connecticut limited liability
company, its general partner
____________________
Notary Public By: Harlow Aircraft Inc., sole
member
[Notarial Stamp or Seal]
By: _______________________
Name:__________________
Title:_________________
My commission expires: Attest:_____________________
Name:________________
Title:_______________
____________________
[Affix Corporate Seal]
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of _______________, 2002 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
___________________________________
Notary Public
EXHIBIT A TO EXHIBIT E-3
[legal descriptions to be attached at Closing]
EXHIBIT B TO EXHIBIT E-3
[to be added at Closing as set forth in Title Policy]
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made
and effective as of this ______ day of ___________, 2002 (the "Closing Date"),
between PREFCO FIVE LIMITED PARTNERSHIP, a Connecticut limited partnership
(successor in interest to PREFCO V Limited Partnership ("Assignor")), and
AMERICAN FINANCIAL RESOURCE GROUP, LLC, a ______________ limited liability
company ("Assignee").
W I T N E S S E T H
WHEREAS, Prefco is the owner (i) of an estate for years (the "Estate
for Years") expiring on August 31, 2010 (the "Estate for Years Expiration Date")
in those certain parcels of land more particularly described in Exhibits A-1
through A-85 annexed hereto and made a part hereof (the "Land"), and (ii) in fee
of (a) all buildings, improvements and structures now or hereafter located on
the Land (the "Improvements") and (b) certain equipment and fixtures attached
thereto (the Estate for Years, Option Rights (defined below), Improvements,
equipment, and fixtures are hereinafter collectively referred to as the
"Property"); and
WHEREAS, Carolina-Relco Limited Partnership, a Connecticut limited
partnership ("Remainderman"), is the fee owner of the Land, subject to the
Estate for Years; and
WHEREAS, Assignor has options, pursuant to the Option and
Subordination Agreement (the "Option Agreement") dated as of July 31, 1990,
between Assignor, as optionee, and Remainderman, as optionor, including without
limitation (i) the option to lease the Land for a period beyond the Estate for
Years Expiration Date, (ii) the option to purchase the Land, and (iii) the
option to refinance the Property (which options are together called the "Option
Rights"); and
WHEREAS, the Land and the Improvements are subject to the terms and
conditions of that certain lease (the "Lease") between Assignor, as landlord,
and First Union Corporation and First Union National Bank, successor in interest
by merger or otherwise to First Union National Bank of North Carolina, First
Union National Bank of Georgia, and First Union National Bank of Florida, as
tenant ("Lessee"), as more fully described in Exhibit B annexed hereto and made
a part hereof; and
WHEREAS, Assignor, Remainderman and Lessee are parties to that certain
agreement (the "Tripartite Agreement") dated as of July 31, 1990 setting forth
the understanding among the parties with respect to certain rights of the lessee
under the Lease relating to the purchase of the Property and the Land and
certain other matters; and
WHEREAS, pursuant to the terms and conditions of the Purchase and Sale
Agreement dated as of ___________________, 2002, between Assignor and Assignee,
Assignor has agreed to assign to Assignee all of its right, title and interest
in, to and under the Option
Agreement, the Lease and the Tripartite Agreement (collectively, the "Operative
Documents") upon the terms and conditions hereof; and
WHEREAS, Assignee desires to assume all of Assignor's obligations
under the Operative Documents arising on and after on the Closing Date upon the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), the
mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, transfers and sets over to Assignee all of
its right, title and interest in, to and under the Operative Documents upon the
terms and conditions herein set forth, to have and to hold the same unto
Assignee, its successors and assigns, forever, subject to all of the terms,
covenants and conditions of the Operative Documents.
2. Assignee hereby accepts the assignment of Assignor's right, title
and interest in, to and under the Operative Documents upon the terms and
conditions herein set forth and hereby assumes and shall fully punctually pay
and perform and observe all of the terms, covenants and conditions of the
Operative Documents by Assignor arising from and after the Closing Date.
3. Assignor shall indemnify and hold harmless Assignee from and
against any and all claims, liabilities, obligations, costs and expenses,
including, without limitation, reasonable attorneys' fees, which arise out of
the Operative Documents and relate to the period prior to the Closing Date.
Assignee shall indemnify and hold harmless Assignor from and against any and all
claims, liabilities, obligations, costs and expenses, including, without
limitation, reasonable attorneys, fees, which arise out of the Operative
Documents and relate to the period on or after the Closing Date.
4. This Assignment may be amended at any time by Assignor and Assignee
but only by an instrument in writing signed by Assignor and Assignee.
5. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
6. This Assignment may be executed in two or more counterparts, all of
which shall be considered one and the same Assignment.
7. This Assignment shall be governed and construed in accordance with
the laws of the State of Nebraska, without regard to any applicable principles
of conflicts of laws.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
ASSIGNOR:
PREFCO FIVE LIMITED PARTNERSHIP, a
Connecticut limited partnership
By: Prefco V Holdings LLC, a Connecticut
limited liability company, its
general partner
By: Harlow Aircraft Inc., sole member
By: ____________________________
Name:_______________________
Title:______________________
ASSIGNEE:
AMERICAN FINANCIAL RESOURCE GROUP, LLC,
a Delaware limited liability company
By: ___________________________
Name:______________________
Title:_____________________
STATE OF CONNECTICUT )
: SS.:
COUNTY OF HARTFORD )
On the ___ day of______________ , 2002 before me, the undersigned, a
Notary Public in and for said State, personally appeared _______________, known
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
________________________________
Notary Public
ACKNOWLEDGEMENT
[insert appropriate acknowledgement for assignee]
