PURCHASE AND SALE AGREEMENT
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of
the Effective Date (hereinafter defined in Subsection 3(a)) by and between
SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership
("Seller"), and THE PRICE REIT, INC., a Maryland corporation ("Purchaser").
W I T N E S S E T H
In consideration of the mutual covenants set forth herein, the parties
hereto hereby agree as follows:
Section 1. Sale and Purchase.
(a) Seller hereby agrees to sell, convey and assign to Purchaser and
Purchaser hereby agrees to purchase and accept from Seller, for the Purchase
Price (hereinafter defined in Section 2) and otherwise subject to the terms and
conditions set forth in this Agreement, the following (the "Property"):
(i) Fee simple title to each of those parcels of land being more
particularly described in Exhibit A attached hereto (the "Land");
(ii) Title to all buildings, walkways, parking areas, landscaping and
other structures and improvements currently located on and attached to the Land
so as to constitute real property, save and except any such improvements owned
by any tenant under a Lease (hereinafter defined in Subsection 1(a)(iv)) or
owned by any other person under any of the other Permitted Encumbrances (as
defined in Subsection 7(c)) (the "Improvements");
(iii) Title to all fixtures of any kind attached to the Land or
the Improvements so as to constitute real property, save and except any such
fixtures owned by any tenant under a Lease or owned by any other person under
any of the other Permitted Encumbrances (the "Fixtures");
(iv) The lessor's interest under all leases, licenses and other
occupancy or use agreements to which Seller is a party concerning the Real
Property (hereinafter defined in Subsection 1(b)) that are currently in effect
and that will be in effect on the Closing Date (hereinafter defined in
Subsection 9(a)) (the "Leases"), together with all income, receipts, funds and
revenues of any kind whatsoever payable to the lessor under the Leases (the
"Rents"), and together with all of Seller's rights, titles and interests to all
security and other refundable deposits held by Seller under the Leases (the
"Deposits");
(v) All of Seller's rights, titles and interests under (A) that
certain Master Declaration of Easements, Covenants, Conditions, Protections and
Restrictions dated April 20, 1993, a copy of which is recorded in Book 1990 at
Page 123 of the land records of the Circuit Court of Prince Xxxxxxx County,
Virginia (the "Land Records"), as amended (the "Master Declaration"), (B) that
certain Declaration of Covenants, Conditions, and Restrictions, undated but
effective on April 11, 1995, a copy of which is recorded in Book 2232 at Page
770 of the Land Records, as amended (the "First Green Space Declaration"), and
(C) that certain Declaration of Covenants, Conditions and Restrictions, undated
but effective on January 26, 1996, a copy of which is recorded in Book 2305 at
Page 1873 of the Land Records (the "Second Green Space Declaration");
(vi) The owner's interest under all service contracts to which Seller
is a party concerning the Real Property or the Project (as defined in the Master
Declaration) that are currently in effect and will be in effect on the Closing
Date, as determined by Purchaser in accordance with Subsection 8(d), to the
extent such contracts are assignable (the "Service Contracts");
(vii) All of Seller's rights, titles and interests, if any, in and
to all of the following described personal property (collectively, the
"Personalty"):
(A) All keys, specialized tools, building supplies, equipment,
machinery, potted plants, storage sheds and other tangible personal property
(the "Equipment"), located in or on, and used solely in connection with the
ownership, maintenance or operation of, the Real Property, save and except those
items listed on Schedule 1 attached hereto;
(B) All surveys, plans, drawings, designs, specifications,
manuals and diagrams depicting or describing all or any part of the Real
Property or the Equipment, or the scope or operation thereof, and all rights to
reproduce the same and to proceed against the preparer of such for any
misstatements, errors or omissions, but only to the extent such property and
rights related thereto are assignable (the "Plans");
(C) All warranties, guaranties, bonds, licenses and permits in
any way related to, arising out of, or granted in connection with, the ownership
of the Real Property, the Equipment or the Plans or any parcel or part thereof,
but only to the extent such are assignable (the "Intangible Property");
(D) All books, work sheets, reports, statements, receipts,
correspondence and other business records related to the leasing and/or
operation of the Real Property or the Project, excluding all Confidential
Documents (hereinafter defined in Subsection 1(b)) (the "Business Records"); and
(E) The name "Smoketown Stations" and all goodwill, if any,
related to such name; and
(viii) All rights, titles and interests of Seller appurtenant to
and for the benefit of the Land, including, without limitation, to the extent
they exist and are held by Seller (A) all minerals, oil, gas and other
hydrocarbon substances on and under the Land, (B) all development rights, air
rights, water, water rights and water stock relating to the Land, (C) easements,
rights-of-way or appurtenances owned by Seller and used in connection with the
beneficial operation, use and enjoyment of the Land, the Leases, the
Improvements, the Intangible Property, or any other appurtenance, (D) all rights
of Seller, if any, in and to public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx, alleys
and passageways, sidewalks, driveways, parking areas and areas adjacent to the
Land or used in connection therewith (open or proposed, in front of or abutting
the Land), and (E) all rights of Seller, if any, in any land lying in the bed of
any existing or proposed street adjacent to the Land, all strips or gores of
land adjoining the Land, and any awards made or to be made and any unpaid award
for damage to the Land by reason of any change of grade of any such street,
road, avenue, alley or passageway (all of which are collectively referred to as
the "Appurtenances").
(b) The Land, the Improvements and the Fixtures are herein collectively
called the "Real Property." The Master Declaration, the First Green Space
Declaration and the Second Green Space Declaration are herein collectively
called the "Declarations." Notwithstanding anything to the contrary set forth
in this Section 1, the "Property" shall not include any of the following (the
"Confidential Documents"):
(i) Any agreement or document concerning Seller, but not the
Property;
(ii) Seller's income tax reports and other financial records unrelated
to the Property;
(iii) Any agreements of Seller that are no longer in effect;
(iv) Seller's loan documents or other financing agreements that
encumber the Property and will be released at or prior to Closing (hereinafter
defined in Subsection 9(a)) or that do not encumber the Property;
(v) All agreements and correspondence between Seller and its legal
counsel; and
(vi) All agreements and correspondence between Seller and its
accountants or other service providers that is unrelated to the operation of the
Property.
(c) Notwithstanding anything in this Agreement to the contrary, Seller
shall be entitled (but not obligated) to retain possession of, and to utilize
for its benefit with respect to any remaining liabilities or potential claims
against Seller, copies of all Plans and Business Records for a period no less
than ten (10) years after the Closing Date; provided, however, that Seller shall
not use such Plans or Business Records to compete with Purchaser in its
ownership and operation of the Property.
Section 2. Purchase Price. The price (the "Purchase Price") for which
Seller agrees to sell and convey the Property to Purchaser, and which the
Purchaser agrees to pay to Seller, subject to the terms hereof, is the amount of
Forty-Seven Million Dollars ($47,000,000), which shall be paid by Purchaser to
Seller at Closing as provided in Subsection 9(b). Payment of the Purchase Price
shall not be complete until Seller receives payment from the Title Company in
the amount of Seller's Net Receipt as provided in Subsection 9(b)(iv).
Section 3. Xxxxxxx Money.
(a) The last party to execute this Agreement shall deliver at least three
(3) fully executed copies of this Agreement to the Title Company (hereinafter
defined in Subsection 7(a)). The date on which at least three (3) fully
executed copies of this Agreement are received by the Title Company shall be the
"Effective Date" of this Agreement, and the Title Company shall provide Seller
and Purchaser with written confirmation of the Effective Date and with at least
one (1) fully executed copy of this Agreement. Within three (3) Business Days
(hereinafter defined in Section 23) after the Effective Date, Purchaser shall
deliver to the Title Company, as escrow agent, a certified check payable to the
order of the Title Company in the amount of $100,000 (the "Initial Xxxxxxx
Money"), which the Title Company shall immediately present for payment and
deposit in an interest bearing account with an insured financial institution.
If this Agreement is not terminated at or prior to the end of the Inspection
Period (hereinafter defined in Subsection 8(c)), then within one (1) Business
Day after the end of the Inspection Period, Purchaser shall deliver to the Title
Company, as escrow agent, a certified check payable to the order of the Title
Company in the amount of $400,000 (the "Additional Xxxxxxx Money"), which the
Title Company shall immediately present for payment and deposit in the same
interest bearing account in which the Initial Xxxxxxx Money is held. The
Initial Xxxxxxx Money and, from and after the date that the Additional Xxxxxxx
Money is delivered to the Title Company, the Additional Xxxxxxx Money shall be
referred to hereinafter as the "Xxxxxxx Money" for so long as it is held by, or
under the control of, the Title Company. In lieu of a certified check,
Purchaser may wire any such funds to the Title Company. All interest earned on
the Xxxxxxx Money shall be taxed to the employer identification number of
Purchaser (which is 00-0000000) and shall be added to, and become a part of, the
Xxxxxxx Money as such interest has accrued and becomes payable without risk of
forfeiture to the depository institution. Purchaser agrees to cooperate with
the Title Company in all reasonable respects to ensure the timely deposit and
investment of the Xxxxxxx Money in accordance with the terms of this Agreement.
(b) The Xxxxxxx Money (including all interest earned thereon) shall remain
on deposit under the exclusive control of the Title Company until the earlier of
the Closing Date or the termination of this Agreement in accordance with its
terms. As part of the Closing, the Xxxxxxx Money shall be released by the Title
Company and applied toward the payment of the Purchase Price otherwise required
to be made by Purchaser at the Closing. If the Closing does not occur within
the required time due to any reason other than termination of this Agreement by
Purchaser pursuant to a right of termination granted to Purchaser under any
other Section of this Agreement, then the Xxxxxxx Money shall be released by the
Title Company and applied in the manner set forth in Section 15.
(c) This Agreement shall serve as the escrow instructions to the Title
Company, when acting in its capacity as escrow agent, and Seller and Purchaser
agree to execute such additional and supplementary escrow instructions as may be
appropriate to enable the Title Company, acting as escrow agent, to comply with
the terms of this Agreement; provided, however, that in the event of any
conflict between the provisions of this Agreement and any supplementary escrow
instructions, the terms of this Agreement shall control. The Title Company, in
its capacity as escrow agent under this Agreement, is not to be held liable for
the sufficiency or correctness of the form, manner of execution or validity of
any instrument that might be deposited into escrow with the Title Company, nor
as to the identity, authority or rights of any person executing the same except
as provided in this Agreement, nor the failure of any party other than itself to
comply with any provisions of this Agreement or any other agreement, contract or
instrument executed pursuant to this Agreement. The Title Company's duties
under this Agreement as escrow agent shall be limited to the safekeeping of the
money, instruments, or documents received by it as escrow agent and for the
discharge of its obligations as escrow agent specified in this Agreement.
(d) If the Title Company shall be involved in any litigation or
controversy between Seller and Purchaser regarding the Xxxxxxx Money or any
other money, instruments or documents received by it as escrow agent under this
Agreement, Seller and Purchaser shall severally hold the Title Company free and
harmless against any cost or expense that may be suffered by it by reason of
such litigation or controversy, other than due to its negligence or malfeasance.
All such costs and expenses shall be paid by the party who does not prevail in
such litigation. In addition, the party who prevails shall be indemnified
against any cost or expense, including reasonable attorneys' fees (both at trial
and on appeal), and replacement of any depletion in the escrow funds, if such
funds are ultimately to be paid to the prevailing party. In the event
conflicting demands are made, or notices served, upon the Title Company with
respect to the Xxxxxxx Money, the Title Company shall have, without limitation,
the following rights and obligations:
(i) Withhold and stop all further proceedings in, and performance of,
its escrow obligations under this Agreement for a reasonable period of time (not
to exceed thirty (30) days) to permit resolution; or
(ii) File a suit in interpleader and obtain an order from a court of
competent jurisdiction requiring the parties to interplead and litigate in such
court their several claims and rights amongst themselves. In the event such
interpleader suit is brought, and all of the Xxxxxxx Money is paid and/or
delivered into court, the Title Company shall ipso facto be fully released and
discharged from all obligations to perform any and all duties or obligations
relative to such funds which are imposed upon it by this Agreement.
Section 4. Purchaser's Representations and Warranties. Purchaser hereby
represents and warrants to Seller (which representations and warranties shall
survive until the one (1) year anniversary of the Closing Date) that:
(a) Authority. Purchaser is a corporation, duly established and validly
existing under the laws of the State of Maryland and, as of the Closing Date
will be, in good standing under the laws of the State of Virginia, and has all
requisite power and authority to enter into this Agreement and to perform its
obligations under this Agreement. The execution and delivery of this Agreement
by Purchaser and the individual(s) signing below on behalf of Purchaser has been
duly authorized. The Agreement and all other agreements contemplated thereby
are and will be valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting generally the enforcement of creditors' rights and
general principles of equity.
(b) Financial Ability. Purchaser now has or will have as of the Closing
Date the financial ability to pay the Purchase Price owed for the Property.
(c) Litigation. Purchaser has not received written notice of any action,
suit or proceeding pending or threatened against Purchaser which would adversely
affect its ability to consummate the transactions contemplated by this
Agreement. Purchaser is not the debtor in any bankruptcy proceeding.
Section 5. Seller's Representations and Warranties. Seller hereby
represents and warrants to Purchaser (which representations and warranties shall
survive until the one (1) year anniversary of the Closing Date) that:
(a) Title. Seller now has or will have on the Closing Date indefeasible
title in fee simple to the Land, free and clear of all Lien Encumbrances
(hereinafter defined in Subsection 7(c)), but subject to all other liens and
encumbrances.
(b) Authority. Seller is a partnership, duly established and validly
existing under the laws of the State of Virginia, and has all requisite power
and authority to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement by Seller and the
individual(s) signing below on behalf of Seller have been duly authorized. The
Agreement and all other agreements contemplated thereby are and will be valid
and binding obligations of Seller, enforceable against Seller in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights and general principles of equity.
(c) No Condemnation. Seller has not received any written notice of any
pending or contemplated condemnation, eminent domain or similar proceeding with
respect to all or any portion of the Real Property.
(d) Compliance. Seller has not received written notice from any
governmental authority of any violations, which remain uncured, of any federal,
state, county or municipal laws, ordinances, orders, codes or regulations
affecting the Property (including without limitation those relating to zoning
and the Americans With Disabilities Act) applicable to the ownership or
operation of the Property. Seller has not received from any insurance company
or Board of Fire Underwriters any written notice of any defect or inadequacy,
which remains uncured, in connection with the Property or its operation.
(e) Litigation. Seller has not received written notice of any action,
suit or proceeding pending or threatened against Seller arising out of Seller's
ownership, management or operation of the Property or against the Property,
except for those set forth on Schedule 2 attached hereto.
(f) Leases. A list of all of the tenants that are a party to the Leases
in effect on the date of this Agreement is attached hereto as Schedule 3. To
Seller's knowledge, Seller has delivered to Purchaser a true and correct copy of
each of the Leases (including all amendments and modifications thereto) in
effect on the date of this Agreement that are in the possession of Seller or of
Seller's property manager, LPC Commercial Services, Inc. ("LPC"), and there are
no unwritten understandings between Seller and any tenant under any of the
Leases which vary in any material manner the obligations of Seller or such
tenant under its Lease, all except as disclosed in this Agreement or in the
Property information delivered to Purchaser on or before the date hereof and
listed on Schedule 9 attached hereto. Seller is, or as of the Closing Date will
be, the sole owner and holder of the lessor's interest under each of the Leases.
No base rent or estimated monthly payment of Additional Rents (hereinafter
defined in Subsection 9(d)(iii)) has been paid by any tenant under its Lease for
more than thirty (30) days in advance of its due date under the Lease, except as
disclosed in this Agreement or in the Property information delivered to
Purchaser on or before the date hereof and listed on Schedule 9 attached hereto.
Seller has not sent during the twelve-month period preceding the date of this
Agreement any written notice of default to any tenant under any Lease, which
default remains uncured, except with respect to those matters listed on Schedule
2. To Seller's knowledge, there are no unpaid commissions currently owed or
payable in the future to any broker under the Leases, except for those disclosed
in any of the Leases or listed on Schedule 5 attached hereto.
(g) Service Contracts. A list of all the service providers that are a
party to the Service Contracts in effect on the date of this Agreement is
attached hereto as Schedule 4. Seller has not sent during the twelve-month
period preceding the date of this Agreement any written notice of default to any
service provider under any of the Service Contracts, which default remains
uncured. To Seller's knowledge, Seller has not received during the twelve-month
period preceding the date of this Agreement any written notice of Seller's
default under any of the Service Contracts, which default remains uncured.
(h) Taxes and Assessments. To Seller's knowledge, all real property taxes
relating to the Real Property and all Seller's personal property taxes relating
to the Property, excepting those for the current tax year which are not yet
overdue (i.e., which are still payable without interest or penalty), have been
paid in full. To Seller's knowledge, Seller has not received any written notice
from any governmental authority during the twelve-month period preceding the
date of this Agreement of any current, pending or anticipated special assessment
or governmental charge against the Real Property, except as disclosed in this
Agreement or in the Property information delivered to Purchaser on or before the
date of this Agreement and listed on Schedule 9 attached hereto.
(i) Employees. Seller does not employ any persons in connection with its
ownership and operation of the Property, and Purchaser shall have no obligation
to continue to employ any persons presently employed by LPC at the Property.
(j) Leases of Equipment. No material portion of the Equipment or Fixtures
is leased by the Seller as lessee.
(k) Declarations and Other Project Development Matters. Seller is, or as
of the Closing Date will be, the sole "Declarant" under each of the
Declarations. Seller during the twelve-month period preceding the date of this
Agreement has not sent any notice of default to, or filed any lien for unpaid
assessments against, any Owner (as defined in the Master Declaration), which
default or lien remains uncured. To Seller's knowledge, Seller has not received
during the six-month period preceding the date of this Agreement any written
notice of a default by Seller under any of the Declarations or under any other
covenant, condition, restriction, right-of-way or easement binding on the Real
Property, which default remains uncured, except with respect to those matters
listed on Schedule 6 attached hereto. Seller is not currently engaged in the
negotiation, execution or recording of any new, or amendments to the existing,
declarations, covenants, conditions, restrictions, rights-of-way or easements
binding or to be binding on the Real Property (not including any Leases or New
Leases) except with respect to those matters listed on Schedule 6 attached
hereto.
(l) Physical Condition. To Seller's knowledge, there are no material
structural defects in the Improvements or repairs required to be made to the
Improvements, Fixtures and Personal Property (including without limitation
plumbing equipment, HVAC, electric wiring and fixtures, gas distribution system,
water and sewage systems, and security systems) to bring them into working order
and condition as required under the applicable Leases, except for (i) the
Retaining Wall Work (hereinafter defined in Subsection 8(e)), (ii) the repair of
the broken sewer main connection described on Schedule 6 attached hereto, and
(iii) any defects or required repairs that are not material. For purposes of
this Subsection 5(l), "material" shall mean any particular defect or repair that
would cost more than $10,000 to complete based on the median of three
independent bids by licensed and bonded companies in the area of the Real
Property capable of doing such work.
(m) Current Rent Roll. To Seller's knowledge, the rent roll attached as
Schedule 8 hereto is true and correct in all material respects.
(n) Environmental. To Sellers knowledge, Seller, during the period of
time that Seller has been indirectly owned and controlled by Skopbank, has not
(i) engaged in any operations or activities upon the Real Property or any
portion thereof for the purpose of, or in any way principally involving, the
handling, manufacture, treatment, storage, use, generation, release, discharge,
refining, dumping or disposal of any Hazardous Materials (whether legal or
illegal, accidental or intentional) on, under, in or about the Real Property, or
(ii) transported any Hazardous Materials to, from or across the Real Property;
except in all cases in material compliance with the Environmental Requirements
and only in the course of legitimate business operations at the Real Property
(which shall not include any business primarily devoted to the handling,
manufacture, treatment, storage, use, generation, release, discharge, refining,
dumping or disposal of Hazardous Materials). To Seller's knowledge, Seller has
not received during the twelve-month period preceding the date of this Agreement
written notice from any governmental authority that (i) any Hazardous Materials
have been handled, manufactured, treated, stored, used, generated, released,
discharged, refined, dumped or disposed of on, in or under the Real Property or
any portion thereof in violation of any Environmental Requirements, (ii) any
Hazardous Materials have migrated from the Real Property upon or beneath other
properties, or (iii) any Hazardous Materials have migrated or threaten to
migrate from other properties upon, about or beneath the Real Property.
"Environmental Requirements" shall mean all applicable present statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, authorizations, concessions, franchises and similar items, of all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (i) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the air, surface water, ground water or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature; and (ii) all requirements pertaining to the protection of the
health and safety of employees or the public.
"Hazardous Materials" shall mean (i) any flammable, explosive or
radioactive materials, hazardous wastes, toxic substances or related materials
including, without limitation, substances defined as "hazardous substances,"
"hazardous materials," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq.; and in the regulations adopted and publications promulgated
pursuant to said laws; (ii) those substances listed in the United States
Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or
by the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 C.F.R. Part 302 and amendments thereto); (iii) those substances
defined as "hazardous wastes," "hazardous substances" or "toxic substances" in
any similar federal, state or local laws or in the regulations adopted and
publications promulgated pursuant to any of the foregoing laws or which
otherwise are regulated by any governmental authority, agency, department,
commission, board or instrumentality of the United States of America, the State
of Virginia or any political subdivision thereof, (iv) any pollutant or
contaminant or hazardous, dangerous or toxic chemicals, materials, or substances
within the meaning of any other applicable federal, state, or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended; (v) petroleum or any by-products thereof; (vi) any radioactive
material, including any source, special nuclear or by-product material as
defined at 42 U.S.C. Sections 2011 et seq., as amended, and in the regulations
adopted and publications promulgated pursuant to said law; (vii) asbestos in any
form or condition; and (viii) polychlorinated biphenyls.
(o) Seller's Knowledge. The phrase "To Seller's knowledge" as used in
this Section 5 shall be limited to, and based solely on, the current and actual
knowledge at the time of the statement, without any duty to make any further
investigations or examinations of any of Seller's or LPC's files and records, of
J. Xxxx Xxxxx, Xxxx X. Xxxxxxxx, and Xxxx X. Xxxxxxx ("Seller's Agents"), who
Seller represents and warrants are the employees of LPC and the representatives
of Seller most familiar with, and responsible for, the Property.
(p) No Other Representations or Warranties. OTHER THAN THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 5 OR IN ANY LANDLORD
ESTOPPEL (HEREINAFTER DEFINED IN SUBSECTION 6(e)) AND THE SPECIAL WARRANTY TO BE
MADE IN THE DEED TO BE DELIVERED BY SELLER AT THE CLOSING, PURCHASER
ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, 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 (I) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (II) THE INCOME TO
BE DERIVED FROM THE PROPERTY, (III) THE SUITABILITY OF THE PROPERTY FOR ANY
AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT OR DESIRE TO CONDUCT
THEREON, (IV) THE COMPLIANCE OF THE SELLER WITH REGARD TO THE PROPERTY OR THE
PROPERTY ITSELF WITH ANY LAWS, ORDINANCES, ORDERS, CODES, REGULATIONS OR
REQUIREMENTS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (V) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (VI) THE MANNER, QUALITY, STATE OF REPAIR
OR LACK OF REPAIR OF THE PROPERTY, OR (VII) ANY OTHER MATTER WITH RESPECT TO
THE PROPERTY INCLUDING THE EXISTENCE IN, UNDER, ON, OR ADJACENT TO THE
PROPERTY OF HAZARDOUS MATERIALS OR PROTECTED NATURAL CONDITIONS OR PLANT OR
ANIMAL SPECIES, WHICH WOULD OR COULD IMPOSE LIABILITY ON PURCHASER OR RESTRICT
OR HINDER DEVELOPMENT OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY,
PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON
ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AT THE APPLICABLE
CLOSING AGREES TO ACCEPT THE PROPERTY AND WAIVE ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS
MATERIALS OR PROTECTED NATURAL CONDITIONS OR PLANT OR ANIMAL SPECIES ON OR
ADJACENT TO THE PROPERTY, OTHER THAN AS MAY ARISE FROM A VIOLATION OF SELLER'S
AGREED REPRESENTATIONS AND WARRANTIES. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
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 EXCEPT AS
SET FORTH IN THIS SECTION 5. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, OTHER THAN AS SET FORTH IN THIS
SECTION 5. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, SUBJECT TO
PURCHASER'S RELIANCE ON SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN THE
FIRST SENTENCE OF THIS SUBSECTION 5(k), 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. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE
HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS
SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. THE
PROVISIONS OF THIS SUBSECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
AND THE CLOSING.
(q) Updates. Within five (5), but not less than one (1), Business Days
prior to the end of the Inspection Period, Seller agrees to deliver to Purchaser
a restatement of the representations and warranties of Seller set forth in this
Section 5, updated to reflect the status of the information set forth in such
representations and warranties as of the date such restatement is sent by Seller
to Purchaser, which restated representations and warranties shall have the same
force and effect and be subject to the same limitations on Seller's
representations and warranties as set forth in this Section 5. Notwithstanding
anything in this Agreement to the contrary, if Purchaser sends notice to Seller
of its acceptance of the Property in accordance with Subsection 8(c), Purchaser
by giving such acceptance notice shall have forever waived and released Seller
from each breach by Seller of any representation or warranty made by Seller in
or under this Section 5 of which Purchaser had actual knowledge prior to the end
of the Inspection Period.
Section 6. Seller's Covenants.
(a) Seller hereby promises and covenants to Purchaser that, from the
Effective Date until the Closing Date, Seller (i) shall maintain the Property in
a good and businesslike manner in accordance with commercially reasonable
business practices and shall not commit or permit to be committed any waste to
the Property, (ii) shall not remove, without the prior written consent of
Purchaser, any Improvement, Fixture or Equipment from the Land unless it is
replaced with an item of at least equal value that is properly suited for its
intended purpose, and (iii) shall keep in full force and effect all fire and
extended coverage and liability insurance owned by Seller and currently covering
the Property, which policies Seller may terminate as of the Closing Date or at
any time thereafter.
(b) Seller hereby promises and covenants to Purchaser that, from the end
of the Inspection Period until the Closing Date, Seller shall not enter into any
agreement or take any action without the prior written consent of Purchaser
(unless otherwise permitted under the terms of this Agreement) that would (i)
constitute a further encumbrance of the Property, including, without limitation,
entering into, modifying, amending or terminating any Lease or (ii) be outside
the normal scope of maintaining and operating the Property, including, without
limitation, entering into, modifying, amending or terminating any Service
Contract that is not terminable without penalty on thirty (30) days or less
written notice. If Seller takes any of the foregoing actions from the Effective
Date until the end of the Inspection Period without the prior written consent of
Purchaser, Seller shall give Purchaser written notice of such action taken by
Seller at least three (3) Business Days prior to the end of the Inspection
Period. Notwithstanding the foregoing, Seller may not enter into, after the
Effective Date, (i) any binding commitment or other agreement to sell any
portion of the Real Property to any person other than Purchaser or (ii) without
the prior written consent of Purchaser, any New Lease other than a New Lease
with Potomac Retail Enterprises, Inc., Blinds to Go (U.S.), Inc. or any
affiliate of either.
(c) If Seller, as permitted in Subsection 6(b) above, enters into any
Leases, or if there is any extension or renewal of any Leases, whether or not
such Leases provide for their extension or renewal, or any expansion or
modification of any Leases, in each case subsequent to February 7, 1997 (each a
"New Lease"), Seller shall keep accurate records of all expenses incurred by
Seller subsequent to February 7, 1997 in connection with each New Lease
(collectively, "New Lease Expenses"), including, without limitation, the
following: (i) brokerage commissions and fees relating to such leasing
transaction, (ii) expenses incurred for repairs, improvements, equipment,
painting, decorating, partitioning and other items to satisfy the tenant's
requirements with regard to such leasing transaction, including any
reimbursements to the tenant for the cost of any of the foregoing, (iii) legal
fees for services in connection with the preparation of documents and other
services rendered in connection with the effectuation of the leasing
transaction, provided, however, that the legal fees in regard to the New Leases
for Potomac Retail Enterprises, Inc., Blinds to Go (U.S.), Inc. or any affiliate
of either shall not exceed $15,000 in the aggregate for both New Leases, (iv)
rent concessions relating to the demised space provided the tenant has the right
to take possession of such demised space during the period of such rent
concessions, and (v) expenses incurred for the purpose of satisfying or
terminating the obligations of a tenant under a New Lease to the landlord under
another lease (whether or not such other lease covers space in the Real
Property). At least three (3) Business Days prior to the end of the Inspection
Period, Seller shall notify Purchaser of the amount and purpose of the
anticipated New Lease Expenses for each New Lease entered into by Seller prior
to the end of the Inspection Period.
(d) Notwithstanding anything to the contrary contained in this Agreement,
Seller reserves the right, but is not obligated, to institute prior to the end
of the Inspection Period summary proceedings against any tenant or to terminate
any Lease as a result of a default by the tenant thereunder prior to the end of
the Inspection Period, provided Purchaser is given written notice thereof at
least three (3) Business Days prior to the institution of such proceedings or
the termination of the Lease by Seller. Seller makes no representations and
assumes no responsibility with respect to the continued occupancy of the Real
Property or any part thereof by any tenant. The removal of a tenant whose Lease
has been terminated or against which summary proceedings have been instituted by
Seller prior to the end of the Inspection Period as provided above, whether by
summary proceedings or otherwise prior to the Closing Date, shall not give rise
to any claim on the part of Purchaser. From and after the Inspection Period
until the Closing Date, Seller shall not institute any summary proceedings
against tenant or terminate any Lease without Purchaser's prior written
approval. Further, Purchaser agrees that, except as set forth in Subsections
8(c) and 9(e), it shall not be grounds for Purchaser's refusal to close this
transaction that any tenant is a holdover tenant or in default under its Lease
on the Closing Date and Purchaser shall accept title subject to such holding
over or default without credit against, or reduction of, the Purchase Price.
(e) Promptly after the Effective Date, Seller agrees to request and
diligently pursue obtainment of, prior to the end of the Inspection Period, an
estoppel certificate in the form hereinafter required by this Subsection 6(e)
(an "Estoppel Certificate") from each tenant and guarantor under a Lease, but in
no event shall it be deemed to be an obligation of Seller under this Agreement
to obtain executed Estoppel Certificates from any of the tenants or guarantors
under the Leases. The Estoppel Certificates shall be in the form annexed hereto
as Exhibit I and shall be completed by Seller with the relevant information from
the respective Leases; provided, however, if any tenant is required or permitted
under its Lease at its election to provide less information or to otherwise make
different statements in a certificate of such nature than are set forth in
Exhibit I annexed hereto, then prior to requesting an Estoppel Certificate from
such tenant, Seller may modify the Estoppel Certificate for such tenant to set
forth only the minimum statements, if any (as reasonably determined by Seller),
required under such tenant's Lease to be made by such tenant in such a
certificate. Concurrently with Seller's delivery to any tenant or guarantor
under a Lease of an Estoppel Certificate for such tenant's or guarantor's review
and execution, Seller shall send a duplicate copy of the Estoppel Certificate to
Purchaser. Within two (2) Business Days of Seller's receipt of any executed
Estoppel Certificate from any tenant or guarantor under a Lease, Seller shall
deliver it to Purchaser. Subject to Section 9(e) hereof, if any tenant has not
executed and delivered to Seller an Estoppel Certificate by the Closing Date
(other than a tenant who is a party to any proceeding listed on Schedule 2),
Seller shall complete an Estoppel Certificate on behalf of such tenant (but not
on behalf of any guarantor) showing no material changes or differences from the
form of Estoppel Certificate required pursuant to this Subsection 6(e) or from
the terms of the applicable Lease or the Confidential Information delivered to
Purchaser prior to the end of the Inspection Period (a "Landlord Estoppel") and
shall deliver same to Purchaser no later than one (1) Business Day prior to the
Closing Date. Representations by Landlord set forth in any Landlord Estoppel
shall constitute a Seller representation for all purposes hereunder and,
accordingly, shall be subject to all limitations on Seller's representations
(including, without limitation, those relating to survivability and Seller's
liability with respect thereto) as set forth in Section 5 and otherwise in this
Agreement; provided, however that any Landlord Estoppel for a particular Lease
shall be rendered null and void by Purchaser's receipt of an Estoppel
Certificate from the tenant of such Lease which complies with the terms of this
Subsection 6(e) and shows no material changes or differences from the terms of
the applicable Lease or Confidential Information delivered to Purchaser prior to
the end of the Inspection Period.
(f) For a period of one-year after the Closing Date, Seller shall
authorize each of Seller's Agents, for so long during such period as he or she
remains in the employment of LPC and LPC remains the asset manager for Seller or
Skopbank, to cooperate with Purchaser in all reasonable respects (as determined
by Seller in its sole discretion). The terms of this Subsection 6(f) shall
survive the Closing under this Agreement.
(g) Seller shall retain sole responsibility for completion of all matters
set forth on Schedule 6, at Seller's sole cost and expense. The terms of this
Subsection 6(g) shall survive the Closing under this Agreement.
Section 7. Title Commitment and Survey.
(a) On or before twenty (20) days from the Effective Date, Seller shall
deliver or cause to be delivered to Purchaser the following:
(i) Commitment to Purchaser for an ALTA Owner Policy of Title
Insurance (the "Title Commitment") from Chicago Title Insurance Company, acting
through its offices at 0000 00xx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.,
00000, Attn: Xx. Xxxxxxxxxxx X. Xxxxxx (the "Title Company"), dated on or after
February 7, 1997, setting forth the Title Company's opinion of the status of the
title of the Real Property as affected by all recorded liens, claims,
encumbrances, easements, rights-of-way, reservations, restrictions, and any
other matters recorded in the Land Records; and
(ii) A true, complete, and legible copy of all recorded documents
referred to in the Title Commitment, including, but not limited to, deeds, lien
instruments, plats, reservations, restrictions, and easements (the "Title
Documents").
(b) On or before twenty (20) days from the Effective Date, Seller shall
deliver or cause to be delivered to Purchaser an ALTA survey meeting the 1992
Minimum Standard Detail Requirements for ALTA/ASCM Land Title Surveys (the
"Survey") prepared by a licensed surveyor acceptable to the Title Company (the
"Surveyor"), which Survey, as certified by the Surveyor to Seller, Purchaser and
the Title Company in a form reasonably acceptable to Purchaser, at least shall
(i) reflect the Surveyor's professional opinion of the actual dimensions of, and
area within, the Land, the location of any easements, setback lines,
encroachments, or overlaps thereon or thereover, and outside boundary lines of
all the Improvements and the square footage and elevation of each of the
buildings within the Improvements, (ii) identify all easements, set-back lines,
and other locatable matters referred to as exceptions to coverage in the Title
Commitment, by book and page reference, (iii) include the Surveyor's registered
number and seal and the date of the Survey, (iv) be sufficient to cause the
Title Company, at the sole election and expense of Purchaser, to delete the
printed exception for "encroachments, overlaps, boundary lines disputes, or
other matters which would be disclosed by an accurate survey or inspection of
the land" in the Owner Title Policy to be delivered pursuant to the Title
Commitment, (v) reflect the Surveyor's professional opinion of the area of the
Land, if any, within a special flood hazard area or zone as shown on the
applicable federal flood insurance map for the respective area in which the Land
is located, (vi) locate all interior lot lines of the Land, (vii) reflect and
count all marked parking spaces, and (viii) show the zoning classification
currently assigned by the applicable governmental authorities to any portion of
the Real Property and the area of the Property to which such classification
applies. Seller shall ensure that a copy of the Survey is delivered to the
Title Company at the same time that it is delivered to Purchaser.
(c) Purchaser shall have fifteen (15) days from its receipt of the last to
arrive of the Title Commitment, the Title Documents and the Survey (the "Title
Review Period") to examine same and such other information regarding Seller's
title to any portion of the Property that Purchaser may elect to obtain and to
specify to Seller and the Title Company in writing those items affecting
Seller's title to the Property that Purchaser finds objectionable (the
"Encumbrances") and specifying Purchaser's desired cure of each such
Encumbrance. Any matter or exception reflected on the Title Commitment
(including in any of the Title Documents), on the Survey or in any UCC financing
statement, taxes, judgment lien, or bankruptcy information report regarding
Seller's title to the Property that Purchaser could have obtained during the
Title Review Period (the "Other Title Reports"), and not objected to by
Purchaser as an Encumbrance, shall be conclusively considered to be a "Permitted
Encumbrance." If Purchaser does not deliver to Seller a written notice
specifying those items which are Encumbrances on or before the expiration of the
Title Review Period, then all of the items reflected on the Title Commitment
(including in any of the Title Documents), on the Survey or in any of the Other
Title Reports shall be conclusively considered to be Permitted Encumbrances,
except for the following items (the "Lien Encumbrances"): (i) any judgment liens
arising from matters other than those set forth on Schedule 2, (ii) any liens
for unpaid taxes against Seller, except to the extent such taxes are not yet due
and payable, (iii) any mechanics or materialmen's liens arising from work
performed for Seller prior to Closing, (iv) deeds of trust securing financing
placed upon the Property by Seller or any of its predecessors in title to the
Property or (v) any encumbrances placed upon the Property by Seller in violation
of Subsection 6(b). None of the Lien Encumbrances shall be considered Permitted
Encumbrances, and Seller agrees to cause all Lien Encumbrances to be removed of
record or from the Title Commitment before or simultaneously with the Closing.
Seller shall have the right, but not the obligation except for the Lien
Encumbrances, to cure or remove all Encumbrances prior to the Closing Date,
provided, however, that Seller shall notify Purchaser in writing, within ten
(10) days following Seller's receipt of the Encumbrances list, of those
Encumbrances that Seller is unwilling to attempt to cure.
(d) If Seller gives Purchaser written notice within the required 10-day
period that Seller is unwilling to attempt to cure any or all of the
Encumbrances, Purchaser shall have the following exclusive rights and remedies:
(i) Purchaser may terminate this Agreement by giving Seller and the
Title Company written notice of termination within ten (10) days after
Purchaser's receipt of Seller's notice, in which event the Initial Xxxxxxx Money
shall be returned to Purchaser and neither party shall have any further rights,
duties or obligations hereunder, other than the indemnification rights and other
matters set forth herein which expressly survive the termination of this
Agreement; or
(ii) Purchaser may elect to purchase the Property subject to the
Encumbrances that Seller is unwilling to attempt to cure, which (other than the
Lien Encumbrances) shall become Permitted Encumbrances after such election by
Purchaser.
The failure of Purchaser to elect option (i) above in the manner and within the
time required shall conclusively be an election of option (ii) above.
(e) If Seller elects to attempt to cure any of the Encumbrances other than
the Lien Encumbrances, and if Seller fails to cause all such Encumbrances to be
removed or cured on or prior to the Closing Date, Purchaser shall have the
following exclusive rights and remedies:
(i) Purchaser may terminate this Agreement by giving Seller and the
Title Company written notice of termination on the Closing Date, in which event
the Xxxxxxx Money shall be returned to Purchaser and neither party shall have
any further rights, duties or obligations hereunder, other than the
indemnification rights and other matters set forth herein which expressly
survive the termination of this Agreement; or
(ii) Purchaser may elect to purchase the Property subject to the
Encumbrances not so removed or cured, which (other than the Lien Encumbrances)
shall become Permitted Encumbrances after such election by Purchaser.
The failure of Purchaser to elect option (i) above in the manner and within the
time required shall conclusively be an election of option (ii) above.
Section 8. Inspection of Property and Property Information.
(a) Seller agrees that from the Effective Date and for so long as this
Agreement has not been terminated in accordance with its terms up to the Closing
Date (i) Purchaser and its designated representatives shall have access to the
Property for the purpose of conducting tenant interviews, making engineering
studies, taking soil samples or conducting other studies, inspections or
investigations as desired by Purchaser, in its sole discretion, with respect to
the Property ("Purchaser's Work"), subject only to the Access Conditions
(hereinafter defined in Subsection 8(b)) and (ii) Seller will make good faith
efforts upon Purchaser's reasonable request to provide Purchaser with relevant
or necessary information with respect to the Property owned by such party that
is currently in the possession of Seller or LPC other than the Confidential
Documents, including, without limitation, requesting such information from any
consultant of Seller or LPC named by Purchaser as a person who may have copies
of such information. Notwithstanding the foregoing, to the extent same are in
Seller's or LPC's possession, Seller will deliver copies to Purchaser, upon
Seller's execution of this Agreement, of the following documents: (A) Phase I
Environmental Report, soils and hazardous materials reports, roofing reports,
termite reports, engineering studies, topographical maps, and other reports,
studies, maps, and analysis with respect to physical aspects of the Property;
(B) a copy of 1995 and 1996 property tax statements and assessed value notices
and paid real estate tax bills; (C) current insurance policies pertaining to the
Property; (D) all certificates of occupancy issued by Prince Xxxxxxx County,
Virginia with respect to use and occupancy of the Property; (E) a copy of all
Leases for the tenants listed on Schedule 3, and related rent rolls and sales
reports; (F) a copy of plans of all buildings and other material improvements of
the Property; (G) a copy of all Service Contracts for the service providers
listed on Schedule 4; and (H) a complete copy of the Retaining Wall Plans
(hereinafter defined in Subsection 8(e)). Seller shall authorize all persons
hired by Seller to manage the Property (including, without limitation, LPC) to
cooperate with Purchaser in all reasonable respects. Seller shall not have any
obligation to obtain any information, reports or permits not currently in
Seller's or LPC's possession, but shall reasonably cooperate with Purchaser to
enable Purchaser to obtain the same (other than the Confidential Documents) in
Seller's name, as applicable, but at Purchaser's sole cost and expense.
Purchaser shall hold in strict confidence and shall not disclose, nor will it
permit any of its representatives, employees or agents to disclose, to any third
party prior to Closing any information, studies, analyses, brochures, documents
or other papers (i) obtained from Seller or any of its agents or representatives
(including, without limitation, LPC) or (ii) otherwise received or gathered by
Purchaser from its inspection, investigation or evaluation of the Property or of
Seller's or any of its agents' or representatives' books and records
(collectively, "Confidential Information"), except as required by Purchaser for
the purpose of evaluating the Property and completing the transaction
contemplated by this Agreement. Upon the termination of this Agreement prior to
the Closing, Purchaser shall deliver to LPC all Confidential Information
(whether received from Seller or LPC or obtained at Purchaser's expense, but
excluding and eliminating from all such Confidential Information all proprietary
information relating to Purchaser), free of any charge or cost to Seller or LPC.
Purchaser shall provide LPC with at least one (1) Business Day prior notice of,
and shall allow LPC a reasonable opportunity to participate in, any
conversations, meetings, notices, communications or other contact by Purchaser
or its agents or representatives with any and all employees of tenants under the
Leases working at the Real Property, service providers under the Service
Contracts, owners subject to the Master Declaration, or governmental authorities
concerning the Property.
(b) Purchaser's right of access to the Property under this Section 8 or
otherwise shall in all events be subject to the following conditions, each of
which are hereby agreed to by Purchaser (the "Access Conditions"):
(i) Purchaser shall be responsible for, and shall obtain for itself,
and shall assure that each of its contractors, consultants, agents and
professionals engaged to enter upon the Property to perform any of Purchaser's
Work has obtained, a standard form of comprehensive commercial general liability
insurance coverage (the "Primary Insurance Coverage") reasonably satisfactory to
LPC covering Seller, LPC and Skopbank for, all insurable matters arising in
connection with or incident to such Purchaser's Work or the presence on the
Property by Purchaser or Purchaser's representatives, agents, contractors,
consultants, employees, servants or licensees. Purchaser shall provide proof of
such Primary Insurance Coverage to LPC upon LPC's request therefor.
(ii) Purchaser covenants and agrees to pay for all studies, reports,
investigations and inspections undertaken by Purchaser with respect to the
Property or arising from Purchaser's Work, to pay all persons who perform labor
on the Property with respect to Purchaser's Work, and not to permit or suffer
any mechanic's or materialman's lien of any kind or nature to be enforced
against the Property or any portion thereof for or with respect to any
Purchaser's Work. Purchaser shall be responsible for the costs and expenses of
all Purchaser's Work commissioned by or for Purchaser with respect to the
Property or any portion thereof.
(iii) Purchaser shall, as soon as possible and at Purchaser's sole
cost and expense, restore the Property where Purchaser or Purchaser's
representatives, agents, contractors, servants or licensees have performed any
of Purchaser's Work to substantially the same condition it was in prior to such
Purchaser's Work, and Purchaser is hereby granted the right to enter the
Property for that purpose provided LPC is given at least one (1) Business Day
prior written notice of the date, time and purpose of such entry.
(iv) Neither Seller, LPC nor Skopbank shall be liable in any way to
Purchaser or to its designated representatives or to any other person entering
upon the Property at the invitation of Purchaser (each a "Purchaser Authorized
Entrant") for any injury to person or damage to property on or about the
Property caused by any Purchaser Authorized Entrant's operations or actions on
or with regard to the Property or caused to such Purchaser's Authorized Entrant
or its property due to the Property being out of repair or in a dangerous
condition, and Purchaser expressly agrees to release Seller, LPC and Skopbank
from any and all such liability to the fullest extent allowed by applicable law.
Purchaser agrees to indemnify Seller, LPC and Skopbank and its partners,
affiliates, agents and representatives (each an "Indemnified Party") and to hold
each Indemnified Party harmless from any personal injury or property damage
caused by or to any Purchaser Authorized Entrant on or with respect to the
Property and from any liability, loss or expense incurred by any Indemnified
Party due to a third party claim or proceeding arising from same or from any
other action of any Purchaser Authorized Entrant on or in regard to the Property
or the Purchaser's Work; provided, however, that the foregoing indemnity shall
apply only to the extent that the Indemnified Party is not held harmless by the
Primary Insurance Coverage or by any other insurance coverage maintained by or
for the benefit of the Indemnified Party with respect to the Property, unless
this limitation on Purchaser's indemnity would void or otherwise limit such
insurance coverage otherwise available to the Indemnified Party. THESE
LIMITATIONS ON INDEMNIFIED PARTY'S LIABILITY AND INDEMNITIES IN FAVOR OF
INDEMNIFIED PARTIES SHALL APPLY WITH FULL FORCE AND EFFECT TO THE MAXIMUM EXTENT
ALLOWED BY APPLICABLE LAW EVEN IF SELLER, LPC, SKOPBANK OR SUCH OTHER
INDEMNIFIED PARTY IS CONTRIBUTORILY OR WHOLLY NEGLIGENT, BUT NOT IF THE
INDEMNIFIED PARTY IS GROSSLY NEGLIGENT OR IS FOUND GUILTY OF INTENTIONAL
MISCONDUCT.
(c) Purchaser shall have the right from the Effective Date until 6:00
p.m., Washington, D.C. time, on the sixtieth (60th) day following the Effective
Date (the "Inspection Period") to inspect the Property under the terms of this
Section 8 to determine its feasibility for the intended use of the Property by
Purchaser, including, but not limited to, the terms of the Leases and Service
Contracts, administration of the Declarations, lot size, economic feasibility,
physical characteristics, site planning, zoning, traffic access, regulatory
requirements and the existence of hazardous materials, natural conditions or
protected species. Should Purchaser's inspection during the Inspection Period
disclose that the Property is adequate for Purchaser's intended use, as
determined by Purchaser in its sole discretion, Purchaser will notify Seller and
the Title Company in writing of such determination and its election not to
terminate this Agreement prior to the end of said Inspection Period. In the
event Purchaser fails to send such acceptance notice to Seller and the Title
Company before the end of the Inspection Period, this Agreement shall terminate
as of 6:01 p.m., Washington, D.C. time, on the last day of the Inspection
Period, all of the Initial Xxxxxxx Money shall be returned to Purchaser by the
Title Company and neither party shall have any further rights, duties or
obligations hereunder, other than the indemnification rights and other matters
set forth herein which expressly survive the termination of this Agreement. In
the event Purchaser, before the end of the Inspection Period, sends notice of
acceptance to Seller under this Subsection 8(c), Purchaser shall have no further
rights to terminate this Agreement for any condition of the Property except for
the specific termination rights granted to Purchaser in other Sections of this
Agreement.
(d) Prior to the end of the Inspection Period, Purchaser shall give Seller
written notice of those Service Contracts in effect in respect of the Property
as of the Effective Date (or entered into by Seller during the Inspection Period
pursuant to the terms of Section 6(b) hereof) that Purchaser, in its sole
discretion, agrees to assume at the Closing, which Service Contracts thereafter
shall be deemed to be the only "Service Contracts." If Purchaser fails to give
such notice to Seller prior to the end of the Inspection Period, Purchaser shall
have elected to assume all of the Service Contracts at the Closing.
(e) Purchaser and Seller acknowledge and agree that certain work needs to
be done on Parcel E of the Real Property for the benefit of the Improvements on
Parcel B-1-B of the Real Property, consisting of relocating or redirecting the
stream bed, correcting erosion, and creating a 3-to-1 slope to stabilize the
existing retaining wall on Parcel E to a safety factor of between 1.3 and 1.5
(the "Retaining Wall Work"). The plans and specifications describing the extent
of the Retaining Wall Work that Seller is willing to undertake are described on
Schedule 7 attached hereto (the "Retaining Wall Plans"), which have not been
approved by Purchaser as of the Effective Date. Purchaser shall have ten (10)
Business Days from the Effective Date to review the Retaining Wall Plans and to
send Seller written notice of either Purchaser's approval or rejection of the
Retaining Wall Plans; and if Purchaser fails to send such notice to Seller
within the required time period, Purchaser will be deemed conclusively to have
approved the Retaining Wall Plans. If Purchaser timely rejects the Retaining
Wall Plans, Seller shall not proceed with the Retaining Wall Work and Purchaser
shall be entitled to receive a reduction in the Purchase Price (the "Purchase
Price Reduction") in an amount equal to the cost of performing the Retaining
Wall Work in accordance with the Retaining Wall Plans based on the bid for such
work given to Seller by Coastal Design Inc. or by another company selected by
Seller and approved by Purchaser as the general contractor for the Retaining
Wall Work (which bid must certify that such contractor is ready, willing and
able to complete the Retaining Wall Work in accordance with the Retaining Wall
Plans at the bid price). If Purchaser timely approved (or is deemed to have
approved) the Retaining Wall Plans, (i) Seller shall apply for necessary
governmental permits and otherwise proceed with the Retaining Wall Work within
thirty (30) days of receipt of Purchaser's approval, and Seller and its agents
are hereby granted the right to enter the Property after the Closing for the
purpose of timely completing the Retaining Wall Work, (ii) at Closing an amount
equal to 110% of Seller's contract price for the uncompleted Retaining Wall Work
(the "Holdback Amount") shall be retained from the Purchase Price and deposited
into escrow with the Title Company, as escrow agent, who shall deposit the
Holdback Amount in an interest bearing account with an insured financial
institution with all interest earned thereon being taxable to the employer
identification number of Seller, (iii) Seller shall ensure that the Retaining
Wall Work is fully completed at Seller's sole cost and expense in accordance
with the Retaining Wall Plans in all material respects within the one-year
period following the Closing Date, (iv) upon the Title Company's receipt of (A)
a certification by a licensed engineer selected by Seller and approved by
Purchaser (which approval may not be unreasonably denied) prior to the end of
the Inspection Period that the terms of clause (iii) above have been satisfied,
(B) an assignment by Seller to Purchaser of all warranties and claims for proper
performance of the Retaining Wall Work received or held by Seller, and (C) a
final and complete lien release from the general contractor for the Retaining
Wall Work and such other materialmen or laborers as required by the Title
Company to issue an endorsement to Purchaser's title insurance policy insuring
over any mechanics and materialmens liens that could arise from the Retaining
Wall Work (collectively, the "Release Items"), the Title Company shall release
and deliver the Holdback Amount (including all interest earned thereon) to
Seller and, if any of the Release Items have not been received by the Title
Company on or before the one-year anniversary of the Closing Date, the Title
Company shall give Seller and Purchaser written notice of such fact, and (v) if
the Title Company has not received all of the Release Items within thirty (30)
days of the date notice of nonreceipt was sent by the Title Company to Seller
and Purchaser under clause (iv) above, the Title Company shall release and
deliver the Holdback Amount (including all interest earned thereon) to
Purchaser. The terms of this Subsection 8(e) shall survive the Closing under
this Agreement.
(f) The obligations of Purchaser in this Section 8 shall survive the
termination of this Agreement and shall survive the Closing.
Section 9. Closing.
(a) The closing of the sale of the Property by Seller to Purchaser under
the terms of this Agreement (the "Closing") shall occur on or before the twenty-
first (21st) day after the end of the Inspection Period, unless this Agreement
has been terminated pursuant to a right of termination set forth herein, but in
no event later than ninety (90) days from the Effective Date (the "Outside
Closing Date"). The exact date of the Closing (the "Closing Date") shall be
specified, subject to the limitations set forth above, in a written notice from
Purchaser to Seller and the Title Company at least three (3) Business Days prior
to the desired Closing Date; provided that if no such notice is sent, the
Closing Date shall be the earlier of (i) the twenty-first (21st) day after the
end of the Inspection Period, or (ii) the Outside Closing Date. The Closing
shall occur in the offices of the Title Company or at such other place agreed to
by Purchaser and Seller, beginning at 10:00 a.m. (Washington, D.C. time) on the
Closing Date and ending no later than 5:00 p.m. (Washington, D.C. time) on the
Closing Date. In the event the Closing does not occur on or before the Outside
Closing Date, the Title Company, acting as escrow agent, shall, unless it is
notified by Purchaser and Seller to the contrary within one (1) Business Day
after such date, return to the depositor thereof all items which may have been
deposited with the Title Company, acting as escrow agent, under this Section 9.
Any such return shall not, however, include the Xxxxxxx Money held by the Title
Company or relieve either party hereto of any liability it may have for its
wrongful failure to complete the Closing on the Closing Date in accordance with
the terms of this Agreement.
(b) At Closing (unless otherwise provided below), the following (which are
mutually concurrent conditions) shall occur:
(i) Purchaser, at its sole cost and expense, shall deliver or cause
to be delivered to the Title Company, as escrow agent, on the day prior to the
Closing Date for release to Seller on the Closing Date, the following:
(A) A closing statement, acceptable in all respects to the Title
Company, reflecting Purchaser's payment of the Purchase Price, a credit for the
Xxxxxxx Money, the closing costs payable by Purchaser pursuant to Subsection
9(c), the prorations required to be made pursuant to Subsection 9(d), a credit
for the amount of cash Deposits held by Seller on the Closing Date, a credit for
the balance of the Promotional Fund (as defined in the Master Declaration) held
by Seller on the Closing Date, a credit for the amount of the Purchase Price
Reduction if applicable under Subsection 8(e), and such other items typically
set forth on a buyer's closing statement (the "Purchaser's Closing Statement"),
the net balance of which shall be the "Purchaser's Net Payment."
(B) A cashier's or certified check made payable to the order of
the Title Company or fed funds wire transfer made to an account designated by
the Title Company (or other form of cash or cash equivalent payment acceptable
to the Title Company in its sole discretion) in the amount of the Purchaser's
Net Payment;
(C) An Affidavit of Consideration in the form attached as
Exhibit B hereto, executed and acknowledged by Purchaser, specifying that the
Purchase Price (less the amount of the Purchase Price Reduction if applicable
under Subsection 8(e)) is the total consideration paid by Purchaser for the
Property;
(D) An Assignment and Assumption of Leases and Service Contracts
in the form attached as Exhibit F hereto, executed by Purchaser, assuming the
lessor's interests under the Leases (including, without limitation, the Rents
and Deposits) and the owner's interest under the Service Contracts;
(E) A notice letter to each tenant under a Lease in the form
attached as Exhibit J hereto, executed by Purchaser, notifying the tenant of the
sale of the Property and directing that rents and other payments thereafter due
under the Lease be sent to Purchaser or as Purchaser may direct;
(F) Three (3) Assignment and Assumption of Declarant Rights in
the form attached as Exhibit H hereto with the changes applicable to the
respective Declaration, executed and acknowledged by Purchaser, assuming the
declarant's interest under each of the Declarations (including, without
limitation, the Promotional Fund with respect to the Master Declaration);
(G) A restatement of the representations and warranties of
Purchaser set forth in Section 4, updated to reflect the status of the
information set forth in such representations and warranties as of the Closing
Date, executed by Purchaser, which restated representations and warranties shall
have the same force and effect and be subject to the same limitations on
Purchaser's representations and warranties as set forth in Section 4; and
(H) Evidence satisfactory to Seller and the Title Company that
the person executing the Closing documents on behalf of Purchaser has full
right, power and authority to do so.
(ii) Seller, at its sole cost and expense, shall deliver or cause to
be delivered to the Title Company, as escrow agent, on the day prior to the
Closing Date for release to Purchaser on the Closing Date the following:
(A) A closing statement, acceptable in all respects to the Title
Company, reflecting Seller's receipt of the Purchase Price, the closing costs
payable by Seller pursuant to Subsection 9(c), the prorations required to be
made pursuant to Subsection 9(d), a reduction for the amount of cash Deposits
held by Seller on the Closing Date, a reduction for the balance of the
Promotional Fund held by Seller on the Closing Date, a reduction for either the
amount of the Purchase Price Reduction or the Holdback Amount as applicable
under Subsection 8(e), and such other items typically set forth on a seller's
closing statement (the "Seller's Closing Statement"), the net balance of which
shall be the "Seller's Net Receipt."
(B) Special Warranty Deed in the form attached as Exhibit C
hereto, executed and acknowledged by Seller in recordable form, conveying to
Purchaser the Real Property, subject only to the Permitted Encumbrances;
(C) Xxxx of Sale in the form attached as Exhibit D hereto,
executed by Seller, conveying all of Seller's rights, titles and interests, if
any, in and to the Personalty;
(D) A non-foreign person affidavit in the form attached as
Exhibit E hereto, stating that Seller in not a foreign person for purposes of
Section 1445 of the Internal Revenue Code of 1986;
(E) An Assignment and Assumption of Leases and Service Contracts
in the form attached as Exhibit F hereto, executed by Seller, conveying the
lessor's interest under the Leases (including, without limitation, the Deposits)
and the owner's interest under the Service Contracts, and evidence reasonably
satisfactory to Purchaser that Seller has canceled the service contracts that
Purchaser has declined to assume in accordance with Subsection 8(d);
(F) A notice letter to each tenant under a Lease in the form
attached as Exhibit J hereto, executed by Seller, notifying the tenant of the
sale of the Property and directing that rents and other payments thereafter due
under the Lease be sent to Purchaser or as Purchaser may direct;
(G) An Owner's Affidavit, for the benefit of the Title Company,
in the form attached as Exhibit G hereto, executed and acknowledged by Seller,
with no changes except those required to reflect the Permitted Encumbrances;
(H) Three (3) Assignment and Assumption of Declarant Rights in
the form attached as Exhibit H hereto with the changes applicable to the
respective Declaration, executed and acknowledged by Seller, conveying the
declarant's interest under each of the Declarations (including, without
limitation, the Promotional Fund with respect to the Master Declaration);
(I) Releases for each of the outstanding Lien Encumbrances in a
form required by the Title Company to remove such Lien Encumbrances as an
exception to coverage available to Purchaser under the Title Commitment (the
"Releases");
(J) A restatement of the representations and warranties of
Seller set forth in Section 5, updated to reflect the status of the information
set forth in such representations and warranties as of the Closing Date,
executed by Seller, which restated representations and warranties shall have the
same force and effect and be subject to the same limitations on Seller's
representations and warranties as set forth in Section 5;
(K) A statement of proratable items specified in Subsection 9(d)
associated with the Property, of the amount of cash Deposits held by Seller on
the Closing Date, of the balance of the Promotional Fund held by Seller on the
Closing Date, and of either the amount of the Purchase Price Reduction or the
Holdback Amount as applicable under Subsection 8(e);
(L) Possession of any Property not previously delivered to
Purchaser, such as the keys and security codes to the Property, the original
executed copies of the Leases and the Service Contracts, any original guaranties
of any Leases, any original documents that make up noncash Deposits and any
original copies of the Plans, all to the extent in Seller's or LPC's possession;
and
(M) Evidence satisfactory to Purchaser and the Title Company
that the person executing the Closing documents on behalf of Seller has full
right, power and authority to do so.
(iii) Purchaser and Seller, if requested by the Title Company on
or prior to the Closing Date, shall execute and deliver such other documents and
take such other action as may be reasonably necessary or appropriate under the
circumstances or customary in Prince Xxxxxxx County, Virginia to consummate the
sale and purchase of the Property in accordance with the terms of this
Agreement.
(iv) The Title Company shall send written notice to Seller and
Purchaser on the morning of the Closing Date confirming that it has possession
of all of the items required to be delivered to the Title Company pursuant to
Subsections 9(b)(i), (ii) and (iii) or, if any such items are not then in the
Title Company's possession, specifying the missing items. Once the Title
Company has received all of the items required to be delivered to the Title
Company pursuant to Subsections 9(b)(i), (ii) and (iii), the Title Company shall
complete the Closing by (A) recording the original Special Warranty Deed, a
fully executed copy of each Assignment and Assumption of Declarant Rights, and
the Releases in the Land Records, and updating and reissuing the Title
Commitment prior to the time of such recordation, (B) completing a fed funds
wire transfer made to an account designated by Seller in the amount of the
Seller's Net Receipt, (C) making payment to each person to whom payment is to be
made pursuant to either the Purchaser's Closing Statement or the Seller's
Closing Statement, (D) to the extent applicable under Subsection 8(e),
establishing the escrow account and making the required deposit for the Holdback
Amount, (E) arranging for the mailing or delivery, with proof of receipt, to
each tenant under the Leases of a fully executed original of its tenant notice
letter, (F) arranging for the mailing or delivery, with proof of receipt, to
each owner under the Master Declaration of a file-stamped copy of the fully
executed Assignment and Assumption of Declarant Rights related to the Master
Declaration, (G) arranging for same day pick-up by Seller or overnight delivery
by a nationally recognized carrier to Seller of each of the original documents
required to be delivered to Seller pursuant to Subsection 9(b)(i), other than
the tenant notice letters and each Assignment and Assumption of Declarant Rights
for which a certified photocopy shall be delivered instead, (H) arranging for
same day pick-up by Purchaser or overnight delivery by a nationally recognized
carrier to Purchaser of each of the original documents required to be delivered
to Purchaser pursuant to Subsection 9(b)(ii), other than the Special Warranty
Deed, the tenant notice letters, the Owner's Affidavit, each Assignment and
Assumption of Declarant Rights and the Releases for each of which a certified
photocopy shall be delivered instead, and (I) providing instructions for the
Title Company to send the original recorded copy of the Special Warranty Deed
and Assignment and Assumption of Declarant Rights to Purchaser following their
return to the Title Company from the recorder's office for the Land Records and
to send the original recorded copy of the Releases to Seller following their
return to the Title Company from the recorder's office for the Land Records.
(c) At Closing, Seller shall be responsible for (i) all compensation then
due to the Brokers as provided in Section 11, (ii) all costs of recording or
obtaining releases of the Encumbrances that Seller has elected to cure and of
all Lien Encumbrances, (iii) all unpaid fees and expenses of Seller's legal
counsel and other consultants hired by Seller incurred in connection with the
transaction, (iv) the grantor's tax charged in regard to the recording of the
Special Warranty Deed, (v) all costs for the Survey delivered to Purchaser in
accordance with Subsection 7(b), and (vi) one-half of the fees of the Title
Company, as escrow agent, and of all other settlement or closing fees and
typical miscellaneous closing costs not otherwise required to be paid by one
party or the other by this Subsection. At Closing, Purchaser shall be
responsible for (i) all costs for any title insurance policy, including all
endorsements thereto, requested by Purchaser based on the Title Commitment or
otherwise, (ii) all costs associated with any financing obtained by Purchaser to
purchase the Property, including, without limitation, all fees, taxes and
recording costs associated therewith, (iii) all unpaid fees and expenses of
legal counsel and other consultants hired by Purchaser incurred in connection
with the transaction, (iv) all of the transfer, recording and documentary fees
and taxes regarding the recording of the Special Warranty Deed, other than the
grantor's tax, (v) one-half of the fees of the Title Company as escrow agent,
and of all other settlement or closing fees and typical miscellaneous closing
costs not otherwise required to be paid by one party or the other by this
Subsection.
(d) (i) All normal and customarily proratable items associated with the
Property being purchased and conveyed at Closing, including, without limitation,
real estate and personal property taxes, water, wastewater and other utility
charges (including development installment payments, equipment rents and
nonuseage fees), annual front foot benefit charges and declaration assessments
and charges, shall be prorated as of the Closing Date, Seller being charged and
credited for all of same up to such date and Purchaser being charged and
credited for all of same on and after such date. If the actual amounts to be
prorated are not known as of the Closing Date, the prorations shall be made on
the basis of the best evidence then available, and thereafter, when actual
figures are received, a cash settlement will be made between Seller and
Purchaser in accordance with the terms of Subsection 9(d)(iv) below.
(ii) The New Lease Expenses for each New Lease allocable to and
payable by Seller shall be determined by multiplying the total amount of such
New Lease Expenses by a fraction, the numerator of which shall be the number of
days contained in that portion, if any, of the term of such New Lease commencing
on the date on which the tenant thereunder shall have commenced to pay
consecutive monthly installments of base rent and/or Additional Rents ("Rent
Installments") under the New Lease ("the Rent Commencement Date") and expiring
on the date immediately preceding the Closing Date, and the denominator of which
shall be the total number of days contained in the period commencing on the Rent
Commencement Date and expiring on the date of the scheduled expiration of the
term of such New Lease (not including future renewal or extension rights); and
the remaining balance of the New Lease Expenses for each New Lease shall be
allocable to and payable by Purchaser. For purposes of this Subsection
9(d)(ii), the Rent Commencement Date under a renewal, extension, expansion or
modification of a Lease shall be deemed to be (A) in the case of a renewal or
extension (whether effective prior to or after the Closing, or in the form of an
option exercisable in the future), the first date during such renewal or
extension period after the originally scheduled expiration of the term of such
Lease on which the tenant under such Lease commences to pay Rent Installments,
(B) in the case of an expansion (whether effective prior to or after the
Closing, or in the firm of an option exercisable in the future), the date on
which the tenant under such Lease commences to pay Rent Installments for the
additional space, and (C) in the case of a modification not also involving a
renewal, extension or expansion of such Lease, the effective date of such
modification agreement. At the Closing, Purchaser shall reimburse Seller for
all New Lease Expenses theretofore paid by Seller, if any, in excess of the
portion of the New Lease Expenses allocated to Seller pursuant to the provisions
of the preceding sentence.
(iii) No unpaid base rents, or percentage rent, escalation charges
for real estate taxes, parking charges, operating expenses and maintenance
escalation rents or charges, cost-of-living increases or other charges of a
similar nature ("Additional Rents"), or other revenues or charges owed to Seller
under the Leases or the Master Declaration ("Other Charges") shall be prorated
on the Closing Date, but shall be prorated as of the Closing Date if, as and
when received. Seller shall make good faith efforts to invoice all tenants
under the Leases and owners under the Declaration prior to the Closing Date for
all base rents, Additional Rents and Other Charges that are due and payable on
or prior to the Closing Date. If on the Closing Date any tenant under the
Leases or owner under the Master Declaration is in arrears to Seller for due and
unpaid base rent, Additional Rents or Other Charges or has not paid any
installment of base rent, Additional Rents or Other Charges payable by it for
the month in which the Closing occurs (whether or not it is in arrears for such
month on the Closing Date), then any base rents, Additional Rents or Other
Charges received by Purchaser or Seller from such tenant or owner after the
Closing shall be applied to amounts due and payable by such tenant or owner
during the following periods in the following order of priority: (A) first, to
the month in which the Closing occurred; (B) second, to Purchaser to pay all
such base rents, Additional Rents and Other Charges accrued after the month in
which the Closing occurred and unpaid to Purchaser; and (C) third, to Seller to
pay all such base rents, Additional Rents and Other Charges accrued prior to the
month in which the Closing occurred and unpaid to Seller. If base rents,
Additional Rents, Other Charges or any portion thereof received by Purchaser or
Seller after the Closing are due and payable to the other party by reason of
this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party. After the
Closing, Purchaser shall, in a commercially reasonable manner, demand payment of
and attempt to collect base rent, Additional Rents and Other Charges arrearages
owed by any tenant under the Leases or owner under the Master Declaration with
respect to the period of time prior to the Closing Date (collectively, the "Rent
Arrearages"). If any Rent Arrearages are not due and payable until after the
Closing Date or are otherwise to be billed by Purchaser after the Closing Date
as part of other amounts owed to Purchaser with respect to the period of time
after the Closing Date, Purchaser shall get Seller's prior approval regarding
the amount of such Rent Arrearages before sending an invoice or demand for
payment of same to any tenant under the Leases or owner under the Declaration.
All Rent Arrearages, no matter when they first become due and payable by any
tenant under the Leases or owner under the Declaration, shall be reserved from
the sale of the Property under this Agreement and shall remain the property of
Seller to the extent necessary to allow Seller to file a suit against the
persons owing same (including any guarantor thereof) for payment and collection
of such Rent Arrearages owed to Seller, including reasonable attorney's fees and
other collection costs associated with same; provided, however, Seller agrees to
give Purchaser at least sixty (60) days prior written notice of its intent to
file such a suit before actually filing same and serving the defendants with
notice of such filing.
(iv) The provisions of this Subsection 9(d) shall survive the Closing
for the period of time set forth below. If any of the items subject to the
apportionment under the foregoing provisions of this Subsection 9(d) cannot be
apportioned at the Closing because of the unavailability of the information
necessary to compute such apportionment, or if any errors or omissions in
computing apportionments at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period of three
hundred sixty-five (365) days after the Closing Date as hereinafter provided.
Neither party hereto shall have the right to require a recomputation of a
Closing apportionment or a correction of an error or omission in a Closing
apportionment unless within the aforestated, three hundred sixty-five (365) day
period one of the parties hereto (i) has obtained the previously unavailable
information or has discovered the error or omission, and (ii) has given notice
thereof to the other party, together with a copy of its good faith recomputation
of the apportionment and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
apportionment hereunder and to give notice thereof as provided above within
three hundred sixty-five (365) days after the Closing Date shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date; provided, however, if
a party has given notice within such three hundred sixty-five (365) day period,
such party's claim thereafter shall survive indefinite until resolved.
(e) It shall be a condition precedent to Purchaser's obligation to close
at Closing (i) that Seller is not then in default under this Agreement, whether
or not notice of such default has been given, (ii) that prior to the Closing
Date, Purchaser shall have received an executed Estoppel Certificate from
tenants (without regard to any guarantors) under Leases demising in the
aggregate at least 80% of the gross leasable area of the buildings making up the
Improvements that are subject to one or more Leases and an executed Landlord
Estoppel from Seller with respect to each Lease for which an executed Estoppel
Certificate has not been obtained from the tenant thereunder (other than any
tenant who is a party to any proceeding listed on Schedule 2), each showing no
material changes or differences from the form of Estoppel Certificate required
pursuant to Subsection 6(e) or from the terms of the applicable Lease or
Confidential Information delivered to Purchaser prior to the end of the
Inspection Period, (iii) that no tenant under a Lease demising in excess of
10,000 useable square feet of any building that is part of the Improvements (a
"Major Tenant") has, nor any one or more tenants under Leases which in the
aggregate demise in excess of 20,000 useable square feet of any buildings that
are part of the Improvements (a "Significant Amount of Tenants") have, at any
time from and after the end of the Inspection Period through the Closing Date,
(A) become the debtor in any bankruptcy proceeding or the subject of a
receivership appointment, (B) ceased to operate its business in its premises
under the Lease with the intent to permanently discontinue operations, or (C)
exercised any right granted under its Lease to terminate the Lease or to stop
paying base rent or is permitted to receive an abatement of base rent otherwise
owed under its Lease for a period in excess of 90 days, in each event due to the
presence of Hazardous Material on the Real Property in violation of the
Environmental Requirements, (iv) that there are no structural defects in the
Improvements or repairs required to be made to the Improvements and/or Fixtures
to bring them into working order and condition as required under the applicable
Leases, which were not known by Purchaser at the end of the Inspection Period,
that in the aggregate will cost in excess of $100,000 to repair, and (v) that
all of Seller's obligations under this Section 9 with respect to the Closing
required to be satisfied on or prior to the Closing Date have been fully
satisfied. It shall be a condition precedent to Seller's obligation to close at
Closing (i) that Purchaser is not then in default under this Agreement, whether
or not notice of such default has been given, (ii) that all consents and
approvals of governmental authorities and other parties to outstanding
development or proffer agreements concerning the Real Property to which Seller
is a party or by which Seller's assets other than the Property are bound that
are required to transfer Seller's rights and/or obligations under such
agreements, if any, shall have been obtained and copies thereof shall have been
delivered to Seller at or prior to the Closing, and (iii) that all of
Purchaser's obligations under this Section 9 with respect to the Closing
required to be satisfied on or prior to the Closing Date have been fully
satisfied. Any party may waive any condition precedent to its obligation to
close at Closing and such waiver shall be deemed given if the Closing is
completed.
Section 10. Destruction, Damage, or Taking Before Closing.
(a) If, after the Effective Date and before Closing, all or any "material"
part of the Land or Improvements are destroyed or damaged by a casualty event or
become subject to condemnation or eminent domain proceedings, then Seller shall
promptly notify Purchaser thereof. Following the occurrence of any such event,
Purchaser shall have the right to elect to either terminate this Agreement or to
proceed with the Closing (subject to the other provisions of this Agreement) by
delivering notice of such election to Seller within five (5) Business Days of
Purchaser's receipt of Seller's notice respecting the damage, destruction, or
taking. If Purchaser elects to proceed with Closing (which Purchaser shall be
deemed to have elected to do if Purchaser fails to give Seller written notice of
Purchaser's election within such five (5) day period), Purchaser shall be
entitled to all insurance proceeds (without reduction for Seller's deductible,
if any) or condemnation awards payable as a result of such damage, destruction
or taking and, to the extent the same may be necessary or appropriate, Seller
shall assign to Purchaser at Closing Seller's rights to such proceeds or awards.
If, within five (5) Business Days of receipt of Seller's notice respecting any
"material" damage, destruction, or taking, Purchaser notifies Seller of its
intent to terminate this Agreement, then Purchaser shall have terminated this
Agreement, in which event the Xxxxxxx Money shall be returned to Purchaser and
neither party shall have any further rights, duties or obligations hereunder,
other than the indemnification rights and other matters set forth herein which
expressly survive the termination of this Agreement. For the purposes of this
Section 10, a destruction, damage or a taking shall be considered to be
"material" if (i) the replacement cost of the portion of the Land or
Improvements damaged, destroyed or taken exceeds $250,000, (ii) the destruction,
damage or taking permits any tenant under a Major Lease to terminate such Lease
or permits rent payments under such Major Lease to xxxxx for a period of time in
excess of the rental coverage therefor provided by any insurance maintained by
Seller, or (iii) in the case of a taking, if the portion of the Land or
Improvements taken are such that they materially and adversely affect the
ability to use the remainder of the Real Property for the purposes for which
they are presently used in such a manner as to cause a reduction in net market
value of the remainder by more than $250,000.
(b) If, after the Effective Date and before Closing, any "immaterial"
part of the Land or Improvements are destroyed or damaged by a casualty event or
become subject to condemnation or eminent domain proceedings, Purchaser shall
not have any right to terminate this Agreement or any other remedy due to such
event, but shall be entitled to all insurance proceeds (without reduction for
Seller's deductible, if any) or condemnation awards payable as a result of such
damage, destruction or taking and, to the extent the same may be necessary or
appropriate, Seller shall assign to Purchaser at Closing Seller's rights to such
proceeds or awards. For purposes of this Section 10, a destruction, damage or
taking shall be considered to be "immaterial" if it is not "material" and it
causes damage or loss in excess of $1,000 that has not been repaired by Seller
prior to the Closing Date.
Section 11. Commissions. Seller agrees to pay a commission to LPC
("Broker") at the Closing, which commission shall be owed to the Broker pursuant
to a separate written agreement with Seller. Seller and Purchaser each hereby
represent and warrant to the other that except for the Broker, no broker, agent
or salesperson has been involved in the negotiation of this Agreement or the
transaction contemplated hereby, and Seller and Purchaser hereby agree to
defend, indemnify, and hold harmless the other from and against any claim by
third parties, except the Broker named in this Section, for brokerage,
commission, finders, or other fees relative to this Agreement or the sale of the
Property and any court costs, attorneys' fees, or other costs and expenses
arising therefrom and alleged to be due by the authorization of Seller or
Purchaser, respectively. The provisions of this Section 11 shall survive the
termination of this Agreement and shall survive the Closing.
Section 12. Notices. Any notice provided or permitted to be given under
this Agreement must be in writing and may be served by depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested; by hand delivering the
same to such party, whether in person or by same-day or over-night courier
service; or by telecopy to such party, with confirmation of receipt by such
party noted in writing, by the sending machine. Notice given in accordance
herewith shall be effective upon the earlier of (a) three (3) Business Days
after deposit in the United States mail, or (b) actual receipt at the address or
telecopy number of the addressee. For purposes of notice, the addresses and the
telecopy numbers of the parties shall be as follows:
If to Seller, to: Smoketown Road Associates Limited
Partnership
c/o Lincoln Property Company
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. J. Xxxx Xxxxx
Fax No.: (000) 000-0000
With a copy to: Xxxxx Xxxxx, Esq.
Xxxxxx & Xxxxxx L.L.P.
The Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000-0000
Fax No.: (000) 000-0000
If to Purchaser, to: Xx. Xxxxxx Xxxxxxxx
The Price REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Section 13. Assigns. This Agreement shall inure to the benefit of and be
binding on the parties hereto and their respective legal representatives,
successors and assigns; provided, however, that neither party hereto shall be
able to assign its rights under this Agreement (except as permitted in this
Section) without the prior written consent of the other party and any purported
assignment of such rights without the required consent shall be null and void
and of no effect. Notwithstanding anything to the contrary contained herein,
Purchaser may assign all (but not part) of its rights under this Agreement to
any corporation, limited liability company or partnership in which Purchaser is
a fifty percent (50%) or greater equity owner, provided a written fully-executed
copy of the assignment agreement is delivered to Seller and to the Title Company
at least three (3) Business Days prior to the Closing Date. Notwithstanding
anything to the contrary contained herein, Seller may assign all or part of its
rights, titles and interests in the Purchase Price and any other proceeds
payable to Seller under this Agreement.
Section 14. Governing Law; Place of Performance. This Agreement shall be
governed and construed in accordance with the laws of the Commonwealth of
Virginia, without regard to choice of law provisions that would apply the law of
any other state or federal territory. All obligations of the parties created
hereunder are performable in Prince Xxxxxxx County, Virginia, unless the place
of performance is otherwise specifically designated in this Agreement.
Section 15. Remedies.
(a) If Purchaser refuses to consummate the Closing pursuant to the terms
of this Agreement, for any reason other than termination of this Agreement
pursuant to a right of termination granted under any other Section hereof or
other than the failure of a condition precedent to Purchaser's obligation to
close at such Closing as provided in Subsection 9(e) that has not been waived by
Purchaser at or prior to the Closing, then Seller, as its sole remedy, shall
have the right to terminate this Agreement by giving Purchaser written notice
thereof, in which event neither party hereto shall have any rights, duties or
obligations hereunder other than the indemnification and other obligations and
rights set forth herein which expressly survive the termination of this
Agreement, and Seller shall receive the Xxxxxxx Money from the Title Company
upon its written request for same and shall retain the Xxxxxxx Money as
liquidated damages and not as a penalty. Seller and Purchaser hereby
acknowledge that the amount of damages resulting from a breach of this Agreement
by Purchaser due to Purchaser's failure to Close would be difficult or
impossible to accurately ascertain. If Purchaser breaches any indemnification,
confidentiality or other provision of this Agreement that expressly survives the
termination of this Agreement, then Seller (i) may terminate this Agreement by
giving Purchaser written notice thereof, in which event neither party hereto
shall have any further rights, duties or obligations hereunder other than the
indemnification and other obligations and rights set forth herein which
expressly survive the termination of this Agreement, (ii) may receive from the
Title Company upon its written request for same and may retain $200,000 of the
Xxxxxxx Money (but no more) as a deposit against actual damages incurred or
reasonably anticipated to be incurred until a final unappealable judgment
concerning Seller's actual damages has been rendered by a court of competent
jurisdiction, and (iii) may seek any other remedy allowed by law as if this
Agreement had not been terminated. If Seller has not filed a lawsuit against
Purchaser in regard to Purchaser's breach of any indemnification,
confidentiality or other provision of this Agreement for which Seller has
elected to retain a portion of the Xxxxxxx Money as a deposit against actual
damages as provided in clause (ii) in the previous sentence within one (1) year
following the date that Seller first asserted such breach to the Title Company,
Seller shall release to Purchaser all of the Xxxxxxx Money so held without
regard to the outstanding nature of Purchaser's breach.
(b) If Seller fails or is unable to perform any of its obligations or
agreements hereunder when performance is required, or if any of Seller's
representations or warranties made hereunder should be false or misleading in
any material respect, then Purchaser, as its sole remedies (i) may terminate
this Agreement by notifying Seller and the Title Company thereof, in which event
neither party shall have any rights, duties or obligations hereunder other than
the indemnification and other obligations and rights set forth herein which
expressly survive the termination of this Agreement, and the Title Company shall
deliver the Xxxxxxx Money to Purchaser, or (ii) may enforce specific performance
of the obligations of Seller hereunder; provided, however, that in the event
Seller commits fraud or an intentional misrepresentation or willfully refuses to
consummate the Closing, in addition to one of the other remedies available under
this Subsection 15(b), Purchaser may recover from Seller as agreed upon and
liquidated damages an amount equal to the lesser of $200,000 or Purchaser's Out-
of-Pocket Costs (as hereinafter defined) as reasonably substantiated by
Purchaser by way of invoices and receipts. As used herein, "Purchaser's Out-of-
Pocket-Costs" means all costs, fees and expenses actually incurred or payable by
Purchaser to a third-party during the Inspection Period or thereafter in
anticipation of the Closing up to and including the Closing Date, including,
without limitation, the costs, fees and expenses of professionals engaged by
Purchaser (i.e., attorneys, engineers, appraisers, surveyors, environmental
consultants and engineers and other consultants).
(c) After a breach of this Agreement by either party hereto and an
election by the nonbreaching party to forgo any right of termination of this
Agreement due to such breach as provided above or in the event of a dispute
between Purchaser and Seller regarding the Xxxxxxx Money, the prevailing party
shall be entitled to recover from the other party, immediately upon demand, all
reasonable costs and attorneys' fees, expert witness fees, costs of tests and
analysis, travel and accommodation expenses, deposition and trial transcript
copies, court costs and other similar costs and fees incurred by the prevailing
party in enforcing its rights and remedies under this Agreement, regardless of
whether legal proceedings are actually commenced or concluded. THE PARTIES
HERETO DO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE
PROPERTY, THE RELATIONSHIP OF SELLER AND PURCHASER, PURCHASER'S USE OR OCCUPANCY
OF THE PROPERTY AND/OR ANY CLAIM OF INJURY OR DAMAGE.
(d) No delay or omission of Seller or Purchaser to exercise any right or
power arising from any breach of this Agreement by Purchaser or Seller, as the
case may be, shall impair any such right or power or shall be construed to be a
waiver of any such breach or an acquiescence therein. No waiver of a breach
shall be effective unless it is in writing. No written waiver by Seller or
Purchaser of any breach by Purchaser or Seller hereunder shall be deemed to be a
waiver of any other provision hereof or of any subsequent breach by Purchaser or
Seller of the same or any other provision.
(e) Notwithstanding anything to the contrary in this Section 15, (i)
neither party shall be entitled to enforce any remedies provided in this
Agreement for a breach or default by the other party unless and until the
defaulting party has failed to cure such breach or default within ten (10) days
after the non-defaulting party gives written notice of such breach or default to
the defaulting party and (ii) any breach or default by a party to this Agreement
arising prior to the Closing Date that is not, because of its nature, capable of
being cured (such as a prior notice or consent requirement) shall be deemed
conclusively cured and waived upon the completion of the Closing under this
Agreement.
Section 16. Interest on Past-Due Obligations. Any amount due to a party
under this Agreement which is not paid when due shall bear interest from the
date due until paid at a rate equal to ten percent (10%) per annum.
Section 17. No Partnership. Notwithstanding anything herein to the
contrary, it is agreed and understood by the parties hereto that nothing
contained in this Agreement shall be deemed to create any relationship other
than that of seller and purchaser.
Section 18. No Third Party Rights. Except as expressly provided herein
with respect to LPC, the Title Company and any specifically identified Broker,
no term or provision of this Agreement is intended to or shall be for the
benefit of any person not a party hereto, and no such other person shall have
any right or cause or action hereunder.
Section 19. Impartial Interpretation. This Agreement is the result of
negotiations between Seller and Purchaser and therefore the language contained
in this Agreement shall be construed as a whole according to its fair meaning
and not strictly for or against either Seller or Purchaser, regardless of who
drafted this Agreement. Each of the parties hereto either are represented or
have been advised by the other party that they should hire and be represented by
independent legal counsel of their own choosing.
Section 20. Entire Agreement. This Agreement is the entire agreement
between Seller and Purchaser concerning the sale of the Property. All prior
written or oral agreements, warranties and representations between the parties
concerning the sale of the Property are merged into this Agreement, cease to
exist and are rendered null and void. No modification hereof or subsequent
agreement relative to the subject matter hereof shall be binding on either party
unless reduced to writing and signed by the party to be bound. The words
"herein," "hereof," "hereunder" and other words of similar import when used in
this Agreement refer to this Agreement as a whole, and not to any particular
article, section or subsection. All headings, captions and titles used in this
Agreement for Sections or Subsections are for convenience only and are not
intended to have any meaning.
Section 21. Exhibits. Exhibits "A," "B," "C," "D," "E", "F", "G", "H",
"I" and "J" and Schedules "1", "2", "3", "4", "5", "6", "7", "8" and "9"
attached hereto are incorporated herein by this reference for all purposes as if
fully set forth in the body of this Agreement.
Section 22. Partial Invalidity. If any term, covenant, condition or
provision of this Agreement is held by a court of competent jurisdiction to be
illegal, invalid, void or unenforceable, the remainder of the provisions hereof
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby.
Section 23. Time. Time is of the essence in every provision of this
Agreement. If any time periods provided for in this Agreement expire on a
Saturday, a Sunday or a public holiday under the laws of the State of Virginia
or the United States of America on which national banks doing business in the
State of Virginia are closed (each such day that is not one of the foregoing
days, being herein referred to as a "Business Day"), such time period shall be
extended to the next succeeding day that is a Business Day.
Section 24. Recordation. Neither this Agreement nor any copy or
memorandum thereof may be recorded in the real property records of the City or
County (or Circuit Court for same) within which the land is located prior to
completion of the Closing. Any recording of this Agreement or any memorandum
thereof in violation of this Section, unless the same has been done by or with
the written consent of Seller, shall terminate all of Purchaser's rights, titles
and interests in and to the Property.
Section 25. Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute collectively one agreement; but in making
proof of this Agreement, it shall not be necessary to produce or account for
more than one (1) such counterpart executed separately or jointly by Seller and
Purchaser.
Section 26. Offer and Acceptance. Unless signed by Seller, the delivery
of this Agreement to Purchaser shall not constitute an offer even if delivered
under an executed cover letter, but shall merely be a proposal subject to
further negotiation and change at Seller's sole discretion until fully executed
by both parties hereto.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement to be
effective on the Effective Date.
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By: /J. XXXX XXXXX/
---------------------------------
Name: J. Xxxx Xxxxx
Title: Vice President
THE PRICE REIT, INC.
By: /XXXXXX XXXXXXXX/
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Sr. Executive V.P.
The undersigned Title Company hereby acknowledges receipt of the Initial Xxxxxxx
Money and three (3) original fully executed copies of this Agreement, and agrees
to act as the "Title Company" under this Agreement and to hold and dispose of
the Xxxxxxx Money and the Closing documents and payments in accordance with the
provisions of this Agreement.
Date: March 25, 1997 CHICAGO TITLE INSURANCE COMPANY
By: /XXXXXXX X. XXXXX/
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Counsel
EXHIBITS:
A - Legal Description of Land
B - Form of Affidavit of Consideration
C - Form of Special Warranty Deed
D - Form of Xxxx of Sale
E - Form of Non-Foreign Seller's Affidavit
F - Form of Assignment of Leases and Service Contracts
G - Form of Owner's Affidavit
H - Form of Assignment and Assumption of Declarant Rights
I - Form of Tenant Estoppel Certificate
J - Form of Tenant Notice Letter
SCHEDULES:
1 - Excluded Equipment
2 - Outstanding Proceedings
3 - Existing Tenants
4 - Existing Service Providers
5 - Potential Lease Brokerage Commissions
6 - Development Work-in-Process
7 - Description of Retaining Wall Plans
8 - Rent Roll
9 - List of Property Information Delivered to Purchaser
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
All that certain property located in Prince Xxxxxxx County, Virginia, more
particularly described as follows:
Lots 1A, 2A, 3, 4 and 5, as shown on plat(s) attached to Deed of Subdivision,
Easement and Subordination recorded in Deed Book 1963 at page 1102 among the
Land Records of Prince Xxxxxxx County, Virginia (the "Land Records"), and to
Deed of Boundary Line Adjustment, Consolidation, Dedication, Easement,
Subordination and Partial Release recorded in Deed Book 1994 at page 1571 among
the Land Records.
AND
Lots 9A-1 and 9C as shown on plat(s) attached to Deed of Resubdivision,
Vacation, Easement and Subordination recorded in Deed Book 1994 at page 412
among the Land Records and to Deed of Boundary Line Adjustment, Consolidation,
Dedication, Easement, Subordination and Partial Release recorded in Deed Book
1994 at page 1571 among the Land Records.
AND
Parcel B-1-B as shown on plat(s) attached to Deed of Boundary Line Adjustment
and Consolidation recorded in Deed Book 2037 at page 904 among the Land Records.
AND
Lot 11 as shown on plat(s) attached to Deed of Subdivision, Dedication,
Vacation, Easement, Subordination and Partial Release recorded in Deed Book 2172
at page 922 among the Land Records.
AND
Lots 12A and 12C as shown on plat(s) attached to Deed of Subdivision, Easement,
Vacation and Subordination recorded in Deed Book 2328 at page 1794 among the
Land Records.
AND
Lot 13B3 and Parcel C1 as shown on plat(s) attached to Deed of Resubdivision
recorded in Deed Book 2352 at page 696 among the Land Records.
AND
Parcel E as shown on the plat(s) attached to Deed of Subdivision recorded in
Deed Book 2186 at Page 144 among the Land Records.
EXHIBIT "B"
AFFIDAVIT OF CONSIDERATION
TO WHOM IT MAY CONCERN:
RE: Purchase of Various Lots and Parcels, Smoketown Station Shopping
Center, Occoquan Magisterial Dist., Prince Xxxxxxx County, Virginia
The undersigned, being the ____________________ of The Price REIT, Inc., a
Maryland corporation ("Grantee"), the purchaser of Xxxx 0X, 0X, 0, 0, 0, 0X-0,
9C, 11, 12A, 12C and 13B3, Parcels B-1-B, C1 and E, and other related real
property, Smoketown Station Shopping Center, Occoquan Magisterial Dist., Prince
Xxxxxxx County, Virginia as more particularly described on Exhibit A attached
hereto, pursuant to that certain Special Warranty Deed dated ______________,
1997, executed by Smoketown Road Associates Limited Partnership, a Virginia
limited partnership ("Grantor"), does hereby swear and certify that the total
consideration paid by Grantee to Grantor, as the seller of the above-referenced
property, was Forty-Seven Million and No/100 Dollars ($47,000,000.00).
Under penalty of perjury, the undersigned hereby certifies and swears to the
truth and accuracy of the statements contained in this Affidavit.
THE PRICE REIT, INC.
By:
Name:
Title:
STATE OF ____________________
COUNTY OF ________________
SWORN TO AND SUBSCRIBED TO BEFORE ME, the undersigned officer, on this the
_______ of __________________, 1997, by
_________________________________________, known to me (or satisfactorily
proven) to be the _________________________ of The Price REIT, Inc., a Maryland
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public in and for the State of
[Notarial Seal]
My Commission Expires: _______________
EXHIBIT "C"
Prepared by: Tax Parcel Numbers:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
SPECIAL WARRANTY DEED
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited
partnership, hereinafter referred to as "Grantor," for and in consideration of
the sum of TEN AND 00/100 DOLLARS ($10.00) AND OTHER GOOD AND VALUABLE
CONSIDERATION paid to Grantor by THE PRICE REIT, INC., a Maryland corporation,
hereinafter referred to as "Grantee," the receipt and sufficiency of which are
hereby acknowledged, hereby GRANTS, SELLS, AND CONVEYS unto Grantee all of the
following described land in Prince Xxxxxxx County, Virginia (the "Land"):
See EXHIBIT A attached hereto, which is made a part hereof as if fully
set forth herein;
together with all rights, titles and interests of Grantor appurtenant thereto,
including, without limitation, all buildings, walkways, parking areas,
landscaping and other structures and improvements now located on and attached to
the Land so as to constitute real property and all fixtures of any kind attached
to such improvements or directly to the Land so as to constitute real property
(collectively, the "Property"), subject, however, to the following described
limitations, restrictions and reservations (collectively, the "Permitted
Encumbrances") to the extent that the same constitute an encumbrance on the
Property otherwise conveyed hereby:
See EXHIBIT B attached hereto, which is made a part hereof as if fully
set forth herein.
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in any wise belonging to Grantor, unto Grantee and its
legal representatives, successors and assigns forever, subject to the Permitted
Encumbrances; and Grantor does hereby bind itself and its legal representatives,
successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Land
unto Grantee and its legal representatives, successors and assigns, against
every person whomsoever lawfully claiming or to claim the same or any part
thereof, by, through or under Grantor, but not otherwise, subject to the
Permitted Encumbrances, and to EXECUTE SUCH FURTHER ASSURANCES OF THE LAND
HEREBY CONVEYED AS MAY BE REQUISITE.
BY THE ACCEPTANCE OF THIS DEED, GRANTOR HEREBY DISCLAIMS, AND GRANTEE
HEREBY WAIVES, ANY AND ALL WARRANTIES OF ANY NATURE REGARDING TITLE TO THE
PROPERTY, EXCEPT FOR ANY WARRANTIES OF TITLE CONTAINED IN THIS DEED.
Grantee's address is
.
EXECUTED on the date set forth in the acknowledgment attached hereto to be
effective as of the _______ day of ____________, 1997.
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By:
Name:
Title:
STATE OF VIRGINIA
CITY/COUNTY OF
The foregoing instrument was acknowledged before me this _____ day of
________________, 199__, by J. Xxxx Xxxxx, Vice President of Lapland Smoketown
Corp., a Delaware corporation acting as general partner of SMOKETOWN ROAD
ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership, on behalf of the
aforementioned entities.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[SEAL]
Notary Public in and for the State of
Virginia
My Commission Expires:
EXHIBIT A [to Exhibit "C"]
DESCRIPTION OF LAND
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
[Attach Legal Description of Land]
EXHIBIT B [to Exhibit "C"]
LIST OF PERMITTED ENCUMBRANCES
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
1. Standby fees and taxes subsequent to those of the original levy for the
year ending June 30, 1997 and for all subsequent years.
2. Any title or rights asserted by anyone, including, but not limited to,
persons, corporations, governments or other entities to tidelands, or lands
comprising the shores or beds of navigable or perennial rivers and streams,
lakes, bays, gulfs or oceans, or to any land extending from the line of
mean low tide to the line of vegetation, or to lands beyond the line of the
harbor or bulkhead lines as established or changed by any government, or to
filled-in-lands, or artificial islands, or to riparian rights or other
statutory water rights, or the rights or interest of the State of Virginia
or the public generally in the area extending from the line of mean low
tide to the line of vegetation or the right of access thereto, or right of
easement along and across the same.
3. [The other Permitted Encumbrances referred to in Subsection 7(c) of the
Purchase and Sale Agreement to which this form of deed is attached.]
EXHIBIT "D"
XXXX OF SALE
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited
partnership ("Grantor"), for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration to Grantor in hand paid by
THE PRICE REIT, INC., a Maryland corporation ("Grantee"), the receipt and
sufficiency of which are hereby confessed and acknowledged, has BARGAINED, SOLD
AND DELIVERED, and by these presents does BARGAIN, SELL AND DELIVER, unto the
said Grantee all of Grantor's rights, titles and interests, if any, in and to
all of the following described personal property:
(A) All keys, specialized tools, building supplies, equipment,
machinery, potted plants, storage sheds and other tangible personal
property (the "Equipment"), located in or on, and used solely in connection
with the ownership, maintenance and operation of, those certain lots or
parcels of land located in the Occoquan Magisterial District of Prince
Xxxxxxx County, Virginia, being more particularly described in Exhibit A
attached hereto, and all improvements thereon and fixtures attached thereto
(the "Real Property"), save and except those items listed on Schedule 1
attached hereto;
(B) All surveys, plans, drawings, designs, specifications, manuals
and diagrams depicting or describing all or any part of the Real Property
or the Equipment, or the scope or operation thereof, and all rights to
reproduce the same and to proceed against the preparer of such for any
misstatements, errors or omissions, but only to the extent such property
and rights related thereto are assignable (the "Plans");
(C) All warranties, guaranties, bonds, licenses and permits in any
way related to, arising out of, or granted in connection with, the
ownership of the Real Property, the Equipment or the Plans or any parcel or
part thereof, but only to the extent such are assignable;
(D) All books, work sheets, reports, statements, receipts,
correspondence and other business records related to the leasing and/or
operation of the Real Property or the Project, excluding all Confidential
Documents (the "Business Records"); and
(E) The name "Smoketown Stations" and all goodwill, if any, related
to such name.
All capitalized terms used in this Xxxx of Sale and not defined herein
shall have the meaning given to such term in that certain Purchase and Sale
Agreement dated as of March 25, 1997 between Grantor and Grantee (the "Purchase
Agreement"), pursuant to which this Xxxx of Sale is being delivered.
Notwithstanding Grantor's conveyance of the Plans and the Business Records
pursuant to this Xxxx of Sale, Grantor shall be entitled (but not obligated) to
retain possession of, and to utilize for its benefit with respect to any
remaining liabilities or potential claims against Grantor, copies of all Plans
and Business Records for a period of no less than ten (10) years after the date
hereof.
TO HAVE AND TO HOLD all of Grantor's rights, titles and interest, if any,
in and to the aforesaid personal property unto Grantee, its legal
representatives, successors and assigns, forever. Grantor is neither a
manufacturer nor distributor of, nor dealer nor merchant in, said personal
property.
GRANTOR MAKES NO WARRANTY OF TITLE REGARDING ALL OR ANY OF THE ABOVE-
DESCRIBED PERSONAL PROPERTY, EXCEPT AS SET FORTH IN SECTION 5 OF THE PURCHASE
AGREEMENT. GRANTOR ALSO MAKES NO WARRANTY OF VALUE, MARKETABILITY,
MERCHANTABILITY, GOOD AND WORKMANLIKE CONSTRUCTION, DESIGN OR PHYSICAL CONDITION
IN RESPECT TO SAID PERSONAL PROPERTY, AND EXCEPT AS SET FORTH IN SECTION 5 OF
THE PURCHASE AGREEMENT, SAID PROPERTY IS SOLD IN AN "AS IS, WHERE IS" CONDITION,
WITH ALL FAULTS. BY ACCEPTANCE OF DELIVERY OF THIS XXXX OF SALE, GRANTEE
AFFIRMS THAT IT HAS MADE ITS OWN INDEPENDENT INSPECTION OF ALL ASPECTS OF SAID
PROPERTY AS FULLY AS DESIRED, THAT IT HAS NOT RELIED ON ANY REPRESENTATION, IF
ANY, OF GRANTOR CONCERNING THE TYPE, AMOUNT, NATURE, VALUE OR CONDITION OF ANY
OF SAID PROPERTY OR ON GRANTOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH SAID
PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT GRANTOR HAS NOT MADE AND MAKES NO
WARRANTY THAT SAID PROPERTY IS FIT OR SUITABLE FOR ANY PARTICULAR PURPOSE.
EXCEPT AS SET FORTH IN SECTION 5 OF THE PURCHASE AGREEMENT, THERE ARE NO
REPRESENTATIONS OR WARRANTIES OF GRANTOR, EXPRESSED, IMPLIED OR STATUTORY
REGARDING THE PROPERTY.
IN WITNESS WHEREOF, Grantor has executed and delivered this Xxxx of Sale to
Grantee to be effective on the ______ day of ___________, 1997.
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
its General Partner
By:
Name:
Title:
EXHIBIT "E"
NON-FOREIGN SELLER AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"),
provides that a transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that withholding
of tax is not required upon the disposition of a U.S. real property interest by
SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership
(the "Transferor"), the undersigned hereby certifies the following on behalf of
the Transferor:
1. The Transferor is not a foreign person, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those
terms are defined in the Code and treasury regulations
promulgated pursuant thereto);
2. The Transferor's U.S. employer identification number is ____; and
3. The Transferor's office address is
The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this documents on behalf of the
Transferor.
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By:
Name: J. Xxxx Xxxxx
Title: Vice President
STATE OF _____________
CITY/COUNTY OF __________
BEFORE ME, the undersigned authority, on this day personally appeared J.
Xxxx Xxxxx, Vice President of Lapland Smoketown Corp., a Delaware corporation,
acting as the general partner of Smoketown Road Associates Limited Partnership,
a Virginia limited partnership, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated and as the act and deed of said entities.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ___ day of
_________________, 1997.
Notary Public in and for the State of
(Printed/Typed Name of Notary)
My Commission Expires:
EXHIBIT "F"
ASSIGNMENT OF LEASES AND SERVICE CONTRACTS
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
THIS ASSIGNMENT OF LEASES AND SERVICE CONTRACTS (this "Assignment") is
executed by and between SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a
Virginia limited partnership ("Assignor"), and THE PRICE REIT, INC., a Maryland
corporation ("Assignee").
W I T N E S S E T H:
Assignor is the owner of certain lots or tracts of land situated in Prince
Xxxxxxx County, Virginia, more particularly described on Exhibit A attached
hereto and made a part hereof for all purposes, together with certain buildings,
walkways, parking areas, landscaping and other improvements located thereon
(collectively, the "Real Property").
Assignor, as the owner of the Real Property, has heretofore entered into or
became a party to certain tenant leases covering a part of the Real Property
(the tenant leases presently in force are referred to herein as the "Leases").
Attached hereto as Exhibit B and made a part hereof for all purposes is a true,
complete and correct copy of a list of the Leases.
Assignor also has heretofore entered into or become a party to certain
management, maintenance, utility, landscaping, garbage disposal and/or other
contracts regarding services being provided to the Real Property (the service
contracts presently in force and which Assignee, in its sole discretion, has
agreed to assume are referred to herein as the "Service Contracts"). Attached
hereto as Exhibit C and made a part hereof for all purposes is a true, complete
and correct copy of a list of the Service Contracts.
On this day, Assignee is purchasing the Real Property from Assignor.
Assignee also desires to purchase and assume from Assignor, and Assignor also
desires to sell and assign to Assignee, the lessor's interest in the Leases and
the owner's interest in the Service Contracts.
NOW, THEREFORE, for and in consideration of the premises and the agreements
and covenants herein set forth, together with the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration previously paid and delivered
by Assignee to Assignor, the receipt and sufficiency of which by Assignor are
hereby confessed and acknowledged, Assignor does hereby ASSIGN, TRANSFER, SET
OVER and DELIVER unto Assignee (a) all of lessor's right, title and interest in
and to all the Leases, including without limitation all security, damage or
other refundable deposits held under, and to all prepaid rentals made under, the
Leases (the "Deposits"), but only to the extent that Assignor is liable for the
application, credit or return of such amount to a tenant thereunder and further
subject to all terms, conditions, reservations and limitations set forth in the
Leases or in the Purchase and Sale Agreement between Assignor and Assignee from
which this Assignment arose (the "Purchase Agreement"), and (b) all of
Assignor's rights, title and interest in and to all the Service Contracts,
including, without limitation, the rights to all refundable deposits and
prepayments made thereunder by Assignor and all warranties, guaranties, bonds
and other rights thereunder inuring to the benefit of Assignor, but subject to
all terms, conditions, reservations and limitations set forth in the Service
Contracts or in the Purchase Agreement.
TO HAVE AND TO HOLD the lessor's interests under the Leases and the owner's
interests under the Service Contracts unto Assignee, its legal representatives,
successors and assigns, subject only to the terms, conditions, reservations and
limitations set forth in the Purchase Agreement.
By accepting this Assignment and by its execution hereof, (a) Assignee
acknowledges that it has received a copy or original of each of the Leases and
any guaranties of the Leases, a cash payment or credit of $__________ (which is
the amount of all cash Deposits held by Assignor on the date hereof), possession
of all original documents that make up any noncash Deposits, and copies or
originals of such business records of Assignor as needed by Assignee to comply
with the terms of the Leases and applicable law and (b) Assignee hereby assumes
and agrees to perform all of the terms, covenants and conditions of the Leases
on the part of the lessor therein required to be performed, from and after the
date hereof, but subject to all of the terms, conditions, reservations and
limitations set forth in the Leases or in the Purchase Agreement, including, but
not limited to, the obligation to repay or account for, in accordance with the
terms of the Leases and applicable law, to the tenants thereunder any and all
Deposits.
Assignor hereby agrees to indemnify and hold Assignee harmless from and
against losses, costs, damages and expenses incurred by Assignee as a result of
claims brought against Assignee, as Assignor's successor in interest in and to
the Leases, relating to causes of action arising at any time from a breach or
alleged breach of the obligations of Assignor as the lessor under the Leases
during the period of time prior to the date hereof. Assignee hereby agrees to
indemnify and hold Assignor harmless from and against losses, costs, damages and
expenses incurred by Assignor as a result of claims brought against Assignor, as
Assignee's predecessor in interest in and to the Leases, relating to causes of
action arising at any time from a breach or alleged breach of the obligations of
Assignee as the lessor under the Leases during the period of time from and after
the date hereof.
By accepting this Assignment and by its execution hereof, (a) Assignee
further acknowledges that it has received a copy or original of each of the
Service Contracts and copies or originals of such business records of Assignor
as needed by Assignee to comply with the terms of the Service Contracts and (b)
Assignee hereby assumes and agrees to perform all of the terms, covenants and
conditions of the Service Contracts on the part of the owner therein required to
be performed, from and after the date hereof, but subject to all of the terms,
conditions, reservations and limitations set forth in the Service Contracts or
in the Purchase Agreement, including, but not limited to, the obligation to pay
for all services provided under the Service Contracts in accordance with the
terms of the Service Contracts.
Assignor hereby agrees to indemnify and hold Assignee harmless from and
against losses, costs, damages and expenses incurred by Assignee as a result of
claims brought against Assignee, as Assignor's successor in interest in and to
the Service Contracts, relating to causes of action arising at any time from a
breach or alleged breach of the obligations of Assignor as the owner under the
Service Contracts during the period of time prior to the date hereof. Assignee
hereby agrees to indemnify and hold Assignor harmless from and against losses,
costs and expenses incurred by Assignor as a result of claims brought against
Assignor, as Assignee's predecessor in interest in and to the Service Contracts,
relating to causes of action arising at any time from a breach or alleged breach
of the obligations of Assignee as the owner under the Service Contracts during
the period of time from and after the date hereof.
BY THE MUTUAL EXECUTION OF THIS ASSIGNMENT, ASSIGNOR HEREBY DISCLAIMS, AND
ASSIGNEE HEREBY WAIVES, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY NATURE
CONCERNING OR REGARDING THE LEASES OR THE SERVICE CONTRACTS, OTHER THAN AS
EXPRESSLY SET FORTH IN SECTION 5 OF THE PURCHASE AGREEMENT.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and assigns.
This is a final and exclusive expression of the agreement of Assignor and
Assignee regarding the matters set forth herein, and no course of dealing, usage
of trade or course of performance shall be relevant to explain or supplement any
term expressed in this Assignment. All prior oral and written agreements
concerning the consequences of the property hereby conveyed, other than the
Purchase Agreement, are merged into this Assignment, and Assignee further
acknowledges and agrees that there are no contemporaneous oral agreements,
representations or warranties in regard to the property hereby conveyed, made by
Assignor or any party acting or purporting or assumed to be acting on Assignor's
behalf.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment to
be effective the _____ day of ______________, 1997.
ASSIGNOR:
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By:
Name:
Title:
ASSIGNEE:
THE PRICE REIT, INC.
By:
Name:
Title:
EXHIBIT "G"
OWNER'S AFFIDAVIT
STATE OF _____________________________)
)
CITY/COUNTY OF _____________________)
J. Xxxx Xxxxx, acting solely as officer and agent of the undersigned
entities without any individual liability ("Deponent"), being duly sworn
according to law, deposes and says as follows:
1. That Deponent is the Vice President of Lapland Smoketown Corp., a Delaware
corporation, acting as the general partner of Smoketown Road Associates
Limited Partnership, a partnership (the "Company"), and that Deponent has
personal knowledge of the facts sworn to in this Affidavit and is fully
authorized and qualified to make this Affidavit.
2. That, to the best of Deponent's knowledge, the Company is the owner of the
land (the "Property") described in the Commitment attached hereto as
Exhibit A (the "Commitment").
3. That there are no unpaid bills incurred by the Company for work performed
upon or materials delivered to the Property for the construction or
improvement of the Property during the past 123 days, except as listed on
Exhibit B attached hereto. That, to the best of Deponent's knowledge,
there are no outstanding contracts for the making of repairs or
improvements on the Property to which the Company is a party, except as
listed on Exhibit B attached hereto.
4. That there are no unrecorded tenancies, leases or other occupancy
agreements to which the Company is a party that affect the Property except
as listed on Exhibit C attached hereto, and that if any such unrecorded
leases, tenancies or other occupancy agreements are listed on Exhibit
C attached hereto, they contain no options to purchase any of the Property,
except as noted in such exhibit:
5. That, to the best of Deponent's knowledge, no person has possession or any
right to possession of any of the Property, except by, under or through the
agreements listed on Exhibit C attached hereto or the agreements and
documents listed as exceptions to coverage in the attached Commitment.
6. That, to the best of Deponent's knowledge, there are no unrecorded
financing statements, chattel mortgages, conditional bills of sale or
retention of title agreements to which the Company is a party affecting any
fixtures owned by the Company and located on the Property, for which
releases have not been granted on or prior to the date hereof.
7. That, to the best of Deponent's knowledge, there are no unrecorded
easements or claims of easement and no contracts, options or rights to
purchase the Property, other than in the transaction for which this
Affidavit is given or in the agreements and documents listed as exceptions
to coverage in the attached Commitment.
8. That, to the best of Deponent's knowledge, there are no unrecorded liens,
mortgages or other similar liens granted by the Company against the
Property.
9. That no proceeding in bankruptcy has ever been instituted by or against the
Company (and if a partnership, against the current general partner(s)
thereof), nor has the Company ever made an assignment for the benefit of
creditors.
10. That, to the best of Deponent's knowledge, there is no action or proceeding
relating to the Property in any State or Federal Court in the United States
nor any State or Federal Judgment or any Federal Lien of any kind or nature
whatever which now constitutes a lien or charge upon the Property, except
as listed as an exception to coverage in the attached Commitment.
This Affidavit is given to induce CHICAGO TITLE INSURANCE COMPANY to issue its
policy of title insurance based on the attached Commitment (including
endorsements) knowing full well that it will be relying upon the accuracy of the
same.
The undersigned further agrees to indemnify Chicago Title Insurance Company
against any loss occasioned by the existence of any of the matters listed above
which are known to the Deponent and not disclosed by this Affidavit and any
cost, expense or liability, including attorney fees, arising from the
enforcement of this indemnification.
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
General Partner
By:
Date Name: J. Xxxx Xxxxx
Title: Vice President
Subscribed and sworn to
before me this _____ day of
, 19__.
Notary Public
My commission expires: __________________
EXHIBIT "H"
ASSIGNMENT OF DECLARANT RIGHTS
(Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia)
SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited
partnership, hereinafter referred to as "Assignor," for and in consideration of
the sum of TEN AND 00/100 DOLLARS ($10.00) AND OTHER GOOD AND VALUABLE
CONSIDERATION paid to Assignor by THE PRICE REIT, INC., a Maryland corporation,
hereinafter referred to as "Assignee," the receipt and sufficiency of which are
hereby acknowledged, ASSIGNS AND TRANSFERS to Assignee all of its rights,
powers, reservations, authorizations, obligations, duties, titles and interests
as "Declarant" under that certain declaration described below:
[Master Declaration of Easements, Covenants, Conditions, Protections
and Restrictions dated April 20, 1993, a copy of which is recorded in
Book 1990 at Page 123 of the land records of the Circuit Court of
Prince Xxxxxxx County, Virginia, as amended (the "Declaration");]
[Declaration of Covenants, Conditions, and Restrictions, undated but
effective on April 11, 1995, a copy of which is recorded in Book 2232
at Page 770 of the Land Records, as amended (the "Declaration");]
[Declaration of Covenants, Conditions and Restrictions, undated but
effective on January 26, 1996, a copy of which is recorded in Book
2305 at Page 1873 of the Land Records (the "Declaration");]
TOGETHER WITH all easements, rights-of-way, reservations, powers, rights and the
like reserved or granted in the Declaration to the Declarant appurtenant to the
Property (as defined in the Declaration) [and the Project (as defined in the
Declaration), including, without limitation, the current balance of the
Promotional Fund (as defined in the Declaration) held by Assignor on the date
hereof.]
TO HAVE AND TO HOLD the Declarant rights described above, unto Assignee and
its legal representatives, successors and assigns forever, subject to the terms
of the Declaration and applicable law.
By accepting this Assignment and by its execution hereof, (a) Assignee
acknowledges that it has received a copy or original of each of the documents
making up the Declaration [, a cash payment or credit of $__________ (which is
the amount of the current balance of the Promotional Fund held by Assignor on
the date hereof),] and copies or originals of such business records of Assignor
as needed by Assignee to comply with the terms of the Declaration and (b)
Assignee hereby assumes and agrees to perform all of the terms, covenants and
conditions of the Declaration on the part of the Declarant therein required to
be performed, from and after the date hereof [, including, but not limited to,
the obligation to account for all Annual Maintenance Assessments (as defined in
the Declaration) and all Promotional Funds in accordance with the terms of the
Declaration].
Assignor hereby agrees to indemnify and hold Assignee harmless from and
against losses, costs, damages and expenses incurred by Assignee as a result of
claims brought against Assignee, as Assignor's successor in interest as
Declarant under the Declaration, relating to causes of action arising at any
time from a breach or alleged breach of the obligations of Assignor as the
Declarant under the Declaration during the period of time prior to the date
hereof. Assignee hereby agrees to indemnify and hold Assignor harmless from and
against losses, costs, damages and expenses incurred by Assignor as a result of
claims brought against Assignor, as Assignee's predecessor as Declarant under
the Declaration, relating to causes of action arising at any time from a breach
or alleged breach of the obligations of Assignee as the Declarant under the
Declaration during the period of time from and after the date hereof.
BY THE MUTUAL EXECUTION OF THIS ASSIGNMENT, ASSIGNOR HEREBY DISCLAIMS, AND
ASSIGNEE HEREBY WAIVES, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY NATURE
CONCERNING OR REGARDING THE DECLARATION OR THE DECLARANT RIGHTS THEREUNDER,
OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 5 OF THE PURCHASE AND SALE
AGREEMENT BETWEEN ASSIGNOR AND ASSIGNEE FROM WHICH THIS ASSIGNMENT AROSE.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and assigns.
This is a final and exclusive expression of the agreement of Assignor and
Assignee regarding the matters set forth herein, and no course of dealing, usage
of trade or course of performance shall be relevant to explain or supplement any
term expressed in this Assignment. All prior oral and written agreements
concerning the consequences of the property hereby conveyed are merged into this
Assignment, and Assignee further acknowledges and agrees that there are no
contemporaneous oral agreements, representations or warranties in regard to the
property hereby conveyed, made by Assignor or any party acting or purporting or
assumed to be acting on Assignor's behalf.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment to
be effective the _____ day of ______________, 1997.
ASSIGNOR:
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By:
Name:
Title:
ASSIGNEE:
THE PRICE REIT, INC.
By:
Name:
Title:
STATE OF
COUNTY OF
I HEREBY CERTIFY that on this _____ day of ________________, 1997, before
me, aforesaid, personally appeared J. Xxxx Xxxxx, who acknowledged himself to
the Vice President of Smoketown Lapland Corp., a Delaware corporation, acting as
the general partner of Smoketown Road Associates Limited Partnership, a Virginia
limited partnership, and that he, as such corporate officer, being authorized so
to do, executed the within instrument on behalf of the above named entities for
the purposes herein contained, by signing the name of the corporation by himself
as Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[SEAL]
Notary Public in and for the State of
My Commission Expires:
STATE OF
COUNTY OF
I HEREBY CERTIFY that on this _____ day of ________________, 1997, before
me, aforesaid, personally appeared ___________________________________________,
who acknowledged himself to the _______________ of The Price REIT, Inc., a
Maryland corporation, and that he, as such corporate officer, being authorized
so to do, executed the within instrument on behalf of the above named
corporation for the purposes herein contained, by signing the name of the
corporation by himself as __________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[SEAL]
Notary Public in and for the State of
My Commission Expires:
EXHIBIT "I"
FORM OF TENANT ESTOPPEL CERTIFICATE
___________________, 1997
To: The Price REIT, Inc.
000 X. Xxxxxxx Xxx.
Xxx Xxxxxxx, XX 00000
Re: Lease dated __________________ (the "Lease") between Smoketown Road
Associates Limited Partnership, as landlord ("Landlord"), and
________________________, as tenant, regarding _______ square feet of
rentable space described in the Lease located in the project known as
Smoketown Stations Shopping Center, Prince Xxxxxxx County, Virginia
(the "Premises").
Ladies/Gentlemen:
At the request of Landlord, the above-referenced Tenant is executing this
certificate to and for the use of Landlord and The Price REIT, Inc., and its
designees (collectively, "Purchaser"), and knowing that the Landlord and
Purchaser are relying on the accuracy of the information contained herein, the
Tenant hereby certifies and agrees to the following:
1. A true, correct and complete copy of the Lease is attached hereto. The
Lease is the entire agreement between Landlord and Tenant and has not been
modified orally or in writing or, if the Lease has been modified, the
following is a list of all modifications to the Lease, all of which are
also attached hereto, and, as modified, the Lease is in full force and
effect and enforceable against Tenant in accordance with its terms [If
blank, then "None"]:
.
2. All tenant improvements and other construction obligations required by the
terms of the Lease to be made by the Landlord have been completed as
required under the Lease and any payments, credits, allowances or
abatements required to be made or given by Landlord to Tenant in connection
with the Premises have been made or given by Landlord and fully received
and accepted by Tenant.
3. As of the date hereof no installment of rent under the Lease other than
current monthly rent has been paid more than 30 days in advance of its due
date nor are any installments of rent past due. Tenant agrees that Tenant
will not pay rent or other charges under the Lease more than thirty (30)
days in advance.
4. Tenant has accepted and is in sole possession of the Premises. Tenant has
not assigned or sublet the Premises or any portion thereof, except as
disclosed in the Lease documents attached hereto. The term of the lease
commenced on ____________________ and is scheduled to end on
______________________, subject to Tenant's renewal rights (if any) set
forth on the Lease.
5. Tenant has no existing charges, liens, claims or setoffs, or, except as set
forth in the Lease, rights of reduction, pursuant to the Lease or otherwise
against the rentals due or to become due under the Lease or otherwise, and
Tenant has not been granted any option or right of first refusal to
purchase all or a portion of the Premises. Tenant has not received notice
of any prior sale, transfer, assignment or pledge of the Lease or the rents
owed thereunder, except as follows [If blank, then "None"]:
.
6. Tenant has no knowledge of any event that has occurred which, with the
giving of notice or the passage of time, or both, would constitute a
default under the Lease by Landlord, except as follows [If blank, then
"None"]: .
7. The monthly base rent due under the Lease is currently $_____________, and
rental payments equal to $_____________ [base rent, plus other monthly
payments of rent] per month currently are being paid by Tenant under the
Lease. The rent and all other amounts payable by the undersigned under the
Lease have been paid through __________________. Tenant has not received
and is not presently entitled to any abatement, refund, rebate, concession
or forgiveness of rent or other charges, free rent, partial rent, or
credits, offsets or reductions in rent, except as follows:
.
8. Tenant has paid a security deposit of $______________ under the Lease,
which is currently held by Landlord. No other deposits have been paid by
or for the benefit of Tenant that are subject to reimbursement by Landlord.
9. Tenant agrees that Tenant will not seek to terminate the Lease by reason of
any act or omission of the Landlord until the tenant shall have given
written notice of such act or omission to the Purchaser by certified or
registered mail, return receipt requested, at the address of Purchaser set
forth above, and until a reasonable period of time shall have elapsed
following the giving of such notice, during which period the Purchaser
shall have the right, but shall not be obligated, to remedy such act or
omission.
10. The address to which notices to Tenant should be sent is as set forth in
the Lease or is the following address:
11. The undersigned signatory for Tenant has the requisite authority to execute
and deliver this letter on behalf of Tenant.
12. All insurance, if any, required to be maintained by Tenant under the Lease
is presently in effect.
13. There are no actions, whether voluntary or otherwise, pending against the
Tenant (or any guarantor of the Tenant's obligations under the Lease)
pursuant to the bankruptcy or insolvency laws of the United States or any
state thereof.
14. The operation and use of the Premises does not involve the generation,
treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those
used in the ordinary course of operating a retail store or restaurant (if
so permitted by the Lease) or otherwise used in accordance with all
applicable laws.
This letter is being furnished to Purchaser in connection with its
acquisition of the Premises and may be relied upon by Purchaser, Landlord and
Purchaser's lender(s), if any, in connection with any loan(s) Purchaser may
obtain with respect to the Premises, and by their respective successors and
assigns.
Very truly yours,
TENANT:
[___________________________________]
[At the request of Landlord, the undersigned guarantor of the Lease hereby
represents, warrants and certifies that the guaranty agreement of the
undersigned dated _____________, 19__ remains in full force and effect without
defense, offset or counterclaim of any kind whatsoever.
Very truly yours,
GUARANTOR:
____________________________________]
EXHIBIT "J"
NOTICE TO TENANTS
__________________, 1997
[Tenant's Name and Address]
Re: Sale of Smoketown Stations Shopping Center, Prince Xxxxxxx County,
Virginia (the "Center")
Ladies/Gentlemen:
With reference to your lease of space in the Block ____, Suite _____ of the
Center, please be advised that Smoketown Road Associates Limited Partnership, a
Virginia limited partnership ("Seller"), has this day sold, transferred and
assigned all of its interest in and to the Center and your lease to The Price
REIT, Inc., a Maryland corporation ("Purchaser").
[Insert the following if there is a security deposit being transferred:
Please be further advised that the security deposit under your lease and the
accrued interest thereon, if any, have been turned over to the Purchaser, whose
address is _________________________________________.]
Finally, until you receive further notice from Purchaser, all rent checks
and other payments under your lease should henceforth be made payable to
_______________ [, the managing agent for the Center selected by Purchaser,] and
mailed or delivered to their office at ________________________________, and all
notices to the landlord under your lease should also be addressed to the
Purchaser at the foregoing address.
Very truly yours,
SELLER:
SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By: _________________________
Name: _________________________
Title: _________________________
PURCHASER:
THE PRICE REIT, INC.
By: _________________________
Name: _________________________
Title: _________________________
SCHEDULE 1
Excluded Equipment
None
SCHEDULE 2
Outstanding Proceedings
1. SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, Plaintiff, vs. FESTIVE
ENTERPRISES, INC., DBA PARTY LAND and XXXXXXXX XXXXXXX, Defendants,
originally filed in the Circuit Court of Fairfax County under Law No.
156303 and subsequently filed in the Circuit Court of Prince Xxxxxxx County
under Law No. 41756.
2. FESTIVE ENTERPRISES, INC. D/B/A PARTY LAND and XXXXXXXX XXXXXXX,
Plaintiffs, vs. SMOKETOWN ROAD ASSOCIATES LIMITED PARTNERSHIP, Defendant
filed in the Circuit Court of Prince Xxxxxxx County under Law No. 41535.
3. Asserted claims regarding violations of the Americans With Disabilities Act
made in XXXXXX XXXXXX, Plaintiff vs. XXXX ATLANTIC NYNEX MOBILE, INC.,
Defendant, filed in the United States District Court for the Eastern
District of Virginia under Civil Action No. 96-378-A; and previous similar
claims made by the same party plaintiff in other filed actions in the same
court against Best Buy Co., Inc. and Shoppers Food Warehouse, which in part
concerned the Real Property.
4. Default notice dated March 11, 1997 sent to Fore Knights Golf, Inc. d/b/a
Golf USA regarding late payment of rents due for the months of February and
March 1997, and unpaid late fees for the months of December 1996 and
February and March 1997, for an aggregate sum due and unpaid of $10,287.24.
5. Potential default by PETsMART, Inc. with regard to late payment of adjusted
rental charges over the term of its Lease, which amounts have been paid in
part, with the remainder subject to review by Seller of tenant's
reconciliation delivered with its partial payment received by Seller on
February 10, 1997.
SCHEDULE 5
Potential Lease Brokerage Commissions
1. Commission owed to J Xxxxxxx Company and LPC in regard to potential lease
by Blinds to Go (U.S.), Inc.
2. Commission owed to J Xxxxxxx Company and LPC in regard to potential lease
by Potomac Retail Enterprises, Inc.
3. Commission owed to LPC in regard to potential lease renewal by Xxxx X.
Xxxxxx d/b/a T-Nails.
SCHEDULE 6
Development Work-in-Process
1. Execution and delivery of Northern Virginia Electric Cooperative Easement
and Right-of-Way Agreement affecting Lots 1A, 11 and 13B, and payment to
NOVEC of cost for installation of street lights and related equipment.
2. Release of three (3) remaining development bonds outstanding under
development agreements for water and sewer, stormwater and landscaping
concerning lots 13A and 13B, being the following:
(a) Skopbank L/C No. 156 (PCN Bank L/C No. 306012) in the original amount
of approximately $204,308.72, which is currently reduced to
approximately $35,113.20 and is due to be released following pending
performance of retaining wall work and certification of retaining wall
integrity with regard to Lot 13A;
(b) Skopbank L/C No. 157 (PCN Bank L/C No. 306011) in the amount of
approximately $19,435, which is due to be released following pending
performance of retaining wall work and certification of retaining wall
integrity with regard to Lot 13A; and
(c) Skopbank L/C No. 158 (PCN Bank L/C no. 306060) in the amount of
approximately $64,174, which is due to be released following
inspection and certification of landscaping for Lots 13A and 13B.
3. Repair of broken sewer main connection at Manhole No. R3 located on Parcel
C-1, next to retaining wall for Lot 13A as shown on attached drawing.
SCHEDULE 7
Description of Retaining Wall Plans
Stream Relocation Plan, Parcel "E" Cow Branch, Prince Xxxxxxx County, prepared
by Xxxxxx X. Xxxxxxxx, Inc., Civil Engineers, dated March 17, 1997.
SCHEDULE 8
Rent Roll
1. The attached rent roll is current and dated as of February 21, 1997.
2. All square footage amounts are based on estimated amounts without certified
measurements done on a uniform basis.
3. The Lease to TGI Friday is being billed base rent on a 5,800 square foot
basis rather than the most recent estimate of the area set forth in the
attached rent roll (i.e. 5,820 square feet).
4. The Lease to Tae Hwan & Xxxxxxxxx X. Xxx d/b/a Festival Cleaners (assigned
to Chae Son & Pong Im Xxx) is being billed on a 2,000 square foot area
basis, rather than the most recent estimate of the area set forth in the
attached rent roll (i.e. 2,150 square feet).
5. Xxxx'x Home Center, Inc. made twelve monthly payments of $5,000 each from
August 1992 through July 1993 ($60,000 total) for development wide CAM
charges, which have not been reconciled to actual amounts owed to date and
may constitute a remaining prepayment of Additional Rent owed by Lowe's
under its Lease with regard to such charges.
MODIFICATION OF PURCHASE AND SALE AGREEMENT
This Modification of Purchase and Sale Agreement (the "Modification") is
entered into as of the 14th day of May, 1997 between SMOKETOWN ROAD
ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership ("Seller"), and
THE PRICE REIT, INC., a Maryland corporation ("Purchaser").
RECITALS
1. Seller and Purchaser entered into that certain Purchase and Sale
Agreement having an Effective Date of March 21, 1997 (the "Agreement"),
providing for the sale and purchase of certain land in Prince Xxxxxxx County,
Virginia, being more particularly described therein (the "Property").
2. Various matters relating to the Property have come to the attention of
Seller and Purchaser after the Agreement was executed by both parties.
3. Seller and Purchaser desire to reflect in this Modification their
agreements with respect to (i) certain matters which have been brought to the
attention of Seller and Purchaser after the Effective Date of the Agreement, and
(ii) certain agreed credits to be applied against the Purchase Price, as defined
in the Agreement.
4. In order to implement the foregoing intentions of Seller and
Purchaser, Seller and Purchaser have entered into this Modification.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, $10.00 cash and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser hereby agree as follows:
Section 1. Intangible Property. Subsection 1(a)(vii)(C) of the Agreement
is hereby amended and restated as follows:
(C) All warranties, guaranties, bonds, licenses and
permits in any way related to, arising out of, or granted in
connection with, the ownership of the Real Property, the Equipment or
the Plans or any parcel or part thereof, but only to the extent such
are assignable (the "Intangible Property"), including without
limitation all rights, titles and causes of action against (1) Xxxxx
Construction, Inc. under that certain Contractor Agreement by and
between Seller and Xxxxx Construction, Inc., dated October 30, 1992,
as amended, and (2) Total Beverage Corp. relating to the disconnection
and/or removal of certain equipment belonging to Seller.
Section 2. Purchase Price Credit. Section 9(b)(i)(A) of the Agreement is
hereby amended and restated as follows:
(A) A closing statement, acceptable in all respects to
the Title Company, reflecting Purchaser's payment of the Purchase
Price, a credit for the Xxxxxxx Money, a credit of $200,000 for rental
loss subsidy and a credit of $400,000 as a reserve for capital repairs
and maintenance (collectively, the "Corrective Matters Credit"), the
closing costs payable by Purchaser pursuant to Subsection 9(d), a
credit for the amount of cash Deposits held by Seller on the Closing
Date, a credit for the balance of the Promotional Fund (as defined in
the Master Declaration) held by Seller on the Closing Date, a credit
for the amount of the Purchase Price Reduction if applicable under
Subsection 8(e), and such other items typically set forth on a buyer's
closing statement (the "Purchaser's Closing Statement"), the net
balance of which shall be the "Purchaser's Net Payment"). The
Corrective Matters Credit has been agreed to by Seller and Purchaser
to cover all matters with respect to the Property and the purchase
thereof by Purchaser that have been raised by Purchaser prior to the
date hereof or that may be raised by the Purchaser after the date
hereof excluding the Post Closing Corrective Matters, as hereinafter
defined, but including, without limitation, all matters set forth in
the following instruments:
(1) Letter dated April 29, 1997 from Xxxxxx
Xxxxxxxx to Mr. Xxxx Xxxxx covering certain issues and concerns
including, without limitation, those raised in letter from Xxx
Xxxxxxxx dated April 28, 1997 referred to therein; and
(2) Letter dated April 25, 1997 from Xxxxxx Xxxxx
to Mr. J. Xxxx Xxxxx and Xxxxx Xxxxx, Esq. covering certain issues and
concerns including, without limitation, those raised in Memorandum
from Xxxxx X. Xxxxxx dated April 25, 1997 referred to therein and a
copy of which is attached thereto.
Notwithstanding the foregoing, Seller shall continue to be obligated
to complete the Retaining Wall Work, the Sewer Line Work and the
VEPCO Work in accordance with Section 8(e), Section 8(f), and Section
8(g), respectively, of this Agreement (herein collectively called the
"Post Closing Corrective Matters").
Section 3. Service Contracts. Subsection 8(d) of the Agreement is hereby
amended and restated as follows:
(d) Purchaser shall assume all of the Service Contracts by its
execution of the Assignment of Lease and Service Contracts attached as
Exhibit "F" to this Agreement.
Section 4. Holdback Amount, Sewer Line and VEPCO Repair Work. Seller and
Purchaser hereby agree that the Holdback Amount, as defined in Subsection 8(e)
of the Agreement, is $247,500. Subsection 8(f) of the Agreement is hereby
changed to be Subsection 8(h), and new Subsections 8(f) and 8(g) are hereby
added to the Agreement, which read as follows:
(f) Purchaser and Seller acknowledge and agree that certain work
needs to be done on Parcel C1 of the Real Property for the benefit of
the Improvements on other parts of the Real Property, consisting of
repairing the broken sewer line connection described as Item 3 on
Schedule 6 of the Agreement (the "Sewer Line Work"). The plans and
specifications describing the extent of the Sewer Line Work that
Seller is willing to undertake were prepared by Xxxxxxx, White &
Xxxxxxx Foundation Corporation under job no. 59707, dated April 3,
1997, as to page 1 of 2 and April 2, 1997, as to page 2 of 2 (the
"Sewer Line Plans"), which have been approved by Purchaser. Within a
reasonable period of time after May 14, 1997 (and in no event later
than June 14, 1997) Seller shall proceed with the Sewer Line Work and
Seller and its agents are hereby granted the right to enter the
Property after the Closing for the purpose of timely completing the
Sewer Line Work. At the Closing, an amount equal to $14,850 (the
"Sewer Work Holdback Amount") shall be retained from the Purchase
Price and deposited into escrow with the Title Company, as escrow
agent, which shall deposit the Sewer Work Holdback Amount in an
interest bearing account with an insured financial institution with
all interest earned thereon being taxable to the employer
identification number of Seller. Seller shall ensure that the Sewer
Line Work is fully completed at Seller's sole cost and expense in
accordance with the Sewer Line Plans in all material respects within
the ninety (90)-day period following the Closing Date. Upon the Title
Company's receipt of (i) a certification by the licensed engineer
selected by Seller and approved by Purchaser with respect to the Sewer
Line Work, that the Sewer Line Work has been completed as required
above, (ii) an assignment by Seller to Purchaser of all warranties and
claims for proper performance of the Sewer Line Work received or held
by Seller, except to the extent such assignment is required to be made
by the Seller to Prince Xxxxxxx County, Virginia, and (iii) a final
and complete lien release from the general contractor for the Sewer
Line Work and such other materialmen or laborers as required by the
Title Company to issue an endorsement to Purchaser's title insurance
policy insuring over any mechanics and materialmens liens that could
arise from the Sewer Line Work (collectively, the "Sewer Work Release
Items"), the Title Company shall release and deliver the Sewer Work
Holdback Amount (including all interest earned thereon) to Seller. If
any of the Sewer Work Release Items has not been received by the Title
Company on or before the ninety (90)-day anniversary of the Closing
Date, the Title Company shall give Seller and Purchaser written notice
of such fact, and if the Title Company has not received all of the
Sewer Work Release Items within thirty (30) days of the date notice of
nonreceipt was sent by the Title Company to Seller and Purchaser, the
Title Company shall release and deliver the Sewer Work Holdback Amount
(including all interest earned thereon) to (i) Prince Xxxxxxx County,
Virginia, to the extent required by such County, as additional
security in addition to the remaining unreleased development bonds
listed as Item 2 of Schedule 6, or (ii) if not required to be
delivered to such County, then to Purchaser, whereupon Seller shall
have no further obligations under this subsection (f).
Notwithstanding anything in this Agreement to the contrary, Seller
hereby reserves its rights to go against the owner of Lot 13A and its
agents for reimbursement of the amounts incurred or expended by Seller
with respect to the Sewer Line Work. In addition, for purposes of
timely completing the Sewer Line Work, and obtaining releases of the
development bonds listed as Item 2 of Schedule 6 following completion
of the Sewer Line Work, in accordance with the terms of this
Subsection 8(f), Purchaser agrees to cooperate with Seller in all
reasonable respects both before and after the date of Closing,
provided Purchaser shall not be obligated to expend any sums or incur
any liability with respect to its cooperation unless and until same is
paid or reimbursed by Seller. Seller retains all rights in and to the
bonds listed as Item 2 of Schedule 6, and Purchaser shall have no
rights to any of such bonds or any amounts due thereunder. Seller's
representative for purposes of the Sewer Line Work is Mr. Xxxx Xxxxx.
The terms of this Subsection 8(f) shall survive the Closing under this
Agreement.
(g) Purchaser and Seller acknowledge and agree that certain work
needs to be done on Parcel 2A of the Real Property for the benefit of
Virginia Electric Power Company ("VEPCO"), consisting of repairing the
existing retaining wall surrounding VEPCO's tower located on Parcel 2A
(the "VEPCO Work"). At Closing an amount equal to $31,570 (the "VEPCO
Holdback Amount") shall be retained from the Purchase Price and
deposited into escrow with the Title Company, as escrow agent, which
shall deposit the VEPCO Holdback Amount in an interest bearing account
with an insured financial institution with all interest earned thereon
being taxable to the employer identification number of Seller. The
plans and specifications describing the extent of the VEPCO Work that
Seller is willing to undertake were prepared by Xxxxxxxxx Engineering
P.C. under job no. 97117, dated May 12, 1997 (the "VEPCO Plans"),
which have been approved by Purchaser. Seller shall apply for
necessary governmental permits and otherwise proceed with the VEPCO
Work within thirty (30) days after the Closing Date, and Seller and
its agents are hereby granted the right to enter the Property after
the Closing to pursue diligently to completion the VEPCO Work. Seller
shall ensure that the VEPCO Work is fully completed at Seller's sole
cost and expense in accordance with the VEPCO Plans in all material
respects within the one-year period following the Closing Date. Upon
the Title Company's receipt of (A) a certification by a licensed
engineer selected by Seller and approved by Purchaser (which approval
may not be unreasonably denied) that the VEPCO Work has been completed
in accordance with the provisions of the immediately preceding
sentence, (B) an assignment by Seller to Purchaser of all warranties
and claims for proper performance of the VEPCO Work received or held
by Seller, and (C) a final and complete lien release from the general
contractor for the VEPCO Work and such other materialmen or laborers
as required by the Title Company to issue an endorsement to
Purchaser's title insurance policy insuring over any mechanics and
materialmens liens that could arise from the VEPCO Work (collectively,
the "VEPCO Release Items"), the Title Company shall release and
deliver the VEPCO Holdback Amount (including all interest earned
thereon) to Seller and, if any of the VEPCO Release Items has not been
received by the Title Company on or before the one-year anniversary of
the Closing Date, the Title Company shall give Seller and Purchaser
written notice of such fact. If the Title Company has not received
all of the VEPCO Release Items within thirty (30) days of the date
notice of nonreceipt was sent by the Title Company to Seller and
Purchaser under the provisions contained in the immediately preceding
sentence, the Title Company shall release and deliver the VEPCO
Holdback Amount (including all interest earned thereon) to Purchaser.
Seller's representative for purposes of the VEPCO Work is Mr. Xxxx
Xxxxx. The terms of this Subsection 8(g) shall survive the Closing
under this Agreement.
Section 5. Additional Closing Document. Subsection 9(b) is hereby amended
by adding thereto the following clause as (I) under Subsection 9(b)(i) and as
(N) under Subsection 9(b)(ii):
(I/N) Assignment of Chose In Action in the form
attached as Exhibit K hereto executed and acknowledged by
Purchaser/Seller;
Exhibit K attached to this Modification is hereby deemed to be added as Exhibit
K to the Agreement.
Section 6. Satisfaction of All of Purchaser's Conditions Precedent. By
its execution of this Modification, Purchaser hereby agrees that all conditions
precedent to Purchaser's acquisition of the Property in accordance with the
Agreement have been satisfied or waived by Purchaser prior to the date hereof
including, without limitation, Purchaser's rights relating to the Inspection
Period, as defined in Section 8(c) of the Agreement. In that regard, Purchaser
hereby notifies Seller and the Title Company under the terms of Section 8(c) of
the Agreement that Purchaser is satisfied with the Property, subject to the Post
Closing Corrective Matters being completed in accordance with the terms of the
Agreement, as modified hereby, and will acquire the Property in accordance with
the terms of the Agreement on May 14,1997.
Section 7. Purchase Agreement. Except as amended in this Modification,
the Agreement shall remain in full force and effect. In the event of any
inconsistency between this Modification and the Agreement, this Modification
shall control. This Modification to the extent it is deemed to be a stand alone
document separate and apart from the Agreement shall be governed by the same
terms of the Agreement, as amended hereby.
Section 8. Multiple Counterparts. This Modification may be executed in
multiple counterparts each of which constitutes an original, but all of which
together constitute one instrument.
Section 9. Facsimile Execution. This Modification may be executed by the
parties hereto and facsimile copies thereof sent to the other parties hereto.
An executed copy of this Modification signed by any party hereto and transmitted
to the other parties by facsimile transmission in accordance with the terms of
the Agreement shall constitute an original executed by the transmitting party.
Any party transmitting a copy of this Modification by facsimile shall
simultaneously send an original executed Modification to the other parties to
this Modification by over-night courier service.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Purchaser and Seller have executed this Modification
as of the date first set forth above.
Seller: SMOKETOWN ROAD ASSOCIATES LIMITED
PARTNERSHIP
By: Lapland Smoketown Corp.,
a Delaware corporation,
its General Partner
By: /J. XXXX XXXXX/
---------------------------------
Name: J. Xxxx Xxxxx
Title: Vice President
Purchaser: THE PRICE REIT, INC.
By: /XXXXXX XXXXXXXX/
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Sr. Executive V.P.
The undersigned Title Company hereby acknowledges receipt of three (3) original
fully executed copies of this Modification and agrees to hold and dispose of the
payments under the Agreement in accordance with the provisions of the Agreement,
as modified by this Modification.
Date:__________, 1997 CHICAGO TITLE INSURANCE COMPANY
By: /XXXXXXXXXXX XXXXXX/
---------------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Underwriter
