Exhibit 10.1
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PURCHASE AND SALE AGREEMENT
AMONG
SREG OPERATING LIMITED PARTNERSHIP,
SREG OAKWOOD PLAZA, INC., SREG OBC, INC.,
SREG HOLLYWOOD HILLS, INC., SREG CYPRESS CREEK, INC.,
SREG KENDALE, INC., SREG CROSS COUNTY, INC., and
SREG ( MILLENIA), INC., as Sellers
AND
SWERDLOW REAL ESTATE GROUP, INC., as Swerdlow
AND
PRICE ENTERPRISES, INC., as Purchaser
Dated as of May 7, 2001
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
TABLE OF CONTENTS
Section Page
1. PURCHASE AND SALE/ PURCHASE PRICE......................................1
2. TERMS OF PAYMENT.......................................................3
3. XXXXXXX MONEY DEPOSIT..................................................5
4. FINANCING CONTINGENCY..................................................6
5. DUE DILIGENCE CONTINGENCY..............................................7
6. INSPECTION PERIOD......................................................8
7. INSPECTION.............................................................8
8. ELECTION TO TERMINATE REGARDING INSPECTION.............................9
9. ELECTION NOT TO TERMINATE REGARDING INSPECTION.........................9
10. TENANT ESTOPPEL CERTIFICATES...........................................9
11. PROPERTY INSPECTION...................................................11
12. CLOSING DATE..........................................................12
13. 1031 EXCHANGE.........................................................12
14. PRORATIONS AND CLOSING COSTS..........................................13
15. REAL ESTATE COMMISSIONS...............................................14
16. PURCHASE PRICE ADJUSTMENTS............................................15
17. REPRESENTATIONS AND WARRANTIES OF SELLER..............................25
18. REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................33
19. CONDITIONS PRECEDENT TO CLOSING.......................................35
20. ITEMS TO BE DELIVERED AT CLOSING......................................37
21. COVENANTS.............................................................39
22. NO ASSIGNMENT.........................................................47
23. NOTICES...............................................................47
24. TERMINATION...........................................................48
25. INDEMNITY.............................................................48
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26. REMEDIES..............................................................51
27. MISCELLANEOUS.........................................................52
28. DEFINITIONS...........................................................55
29. EXHIBITS..............................................................68
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LIST OF EXHIBITS
Section of
Initial
Exhibit Reference Description
A Recitals SCHEDULE OF CENTERS, PARTNERSHIPS AND GENERAL PARTNERS
B 5(a) PRELIMINARY INSPECTION MATERIALS
C 5(b)(ii) TITLE ENDORSEMENTS
D 10(a) FORM OF TENANT ESTOPPEL CERTIFICATE
E 10(a) FORM OF LANDLORD ESTOPPEL CERTIFICATE
F RENT ROLL
G 17(h) GOVERNING DOCUMENTS
H 17(j) INSURANCE
I 17(p) FINANCIAL STATEMENTS
J 20(a)(i) FORM OF ASSIGNMENT OF PARTNERSHIP INTERESTS
K 28 DISCLOSURE SCHEDULE
L 20(a)(vi) FORM OF SELLER'S CLOSING TITLE CERTIFICATE
M 21(c)(iii)(2)(d) LIST OF CMBS LOAN DOCUMENTS
N 20(a)(viii) 14 ACRES ADJACENT TO MILLENIA PLAZA CENTER
MILLENIA ADJACENT PROPERTY
O 2(c) FORM OF PM NOTE
P 28 FORM OF PRELIMINARY LENDER ESTOPPEL CERTIFICATE
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Contract") is made as of the 7th
day of May 2001 among SREG Operating Limited Partnership, a Delaware limited
partnership ("SREG"), SREG Oakwood Plaza, Inc., SREG OBC, Inc., SREG Hollywood
Hills, Inc., SREG OBC, Inc., SREG Cypress Creek, Inc., SREG Kendale, Inc., SREG
Cross County, Inc., and SREG (Millenia), INC.,"), each a Delaware corporation
(collectively, the "General Partners" and all of the foregoing are collectively
referred to as "Seller"), SWERDLOW REAL ESTATE GROUP, INC., a Delaware
Corporation ("Swerdlow") and Price Enterprises, Inc., a Maryland corporation
("Purchaser").
RECITALS:
WHEREAS, the limited partnerships listed in Column 3 of Exhibit A attached
hereto (each, a "Partnership," and collectively, the "Partnerships") own fee
title to, respectively, the seven (7) commercial retail shopping centers listed
in the corresponding row of Column 1 of Exhibit A attached hereto (each, a
"Center" and collectively, the "Property");
WHEREAS, Column 4 of Exhibit A attached hereto identifies, for each
Partnership, the sole general partner of such Partnership (each, a "General
Partner," and collectively, the "General Partners");
WHEREAS, SREG owns 100% of the limited partnership interests in each
Partnership, Swerdlow owns 100% of the issued and outstanding capital stock of
each General Partner, and each General Partner owns 100% of the general
partnership interests of the respective Partnership listed opposite said General
Partner's name on Exhibit A (the limited and general partnership interests are
collectively referred to herein as the "Equity Interests");
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, the
Equity Interests for the Purchase Price (as provided below) on the terms and
conditions set forth in this Contract (the definitions of certain capitalized
terms used herein are set forth in Section 28 below);
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Purchase and Sale/Purchase Price:
(a) Purchase Price. Purchaser shall pay to Seller, in exchange for
Seller's transfer of the Equity Interests as described herein, free of Liens, an
amount equal to Two Hundred Eighty-Two Million Two Hundred Seven Thousand and
Forty-Six Dollars ($282,207,046) (the "Purchase Price"). The Purchase Price
shall be subject to adjustment as provided in subsection (b) below and as
otherwise provided herein.
[***]
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
[***]
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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[***]
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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[***]
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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[***]
3. Xxxxxxx Money Deposit.
(a) Deposit of Funds. Purchaser shall deposit xxxxxxx money in
escrow with the Escrow Agent as follows:
(i) Five Hundred Thousand Dollars ($500,000) within three (3)
calendar days after the Effective Date; and
(ii) One Million Dollars ($1,000,000.00) within three (3)
calendar days after Purchaser delivers written notice to Seller of
Purchaser's Election Not to Terminate with respect to any of the Centers.
Such deposits, together with interest thereon, if any, are collectively
referred to herein as the "Xxxxxxx Money Deposit". The Xxxxxxx Money
Deposit shall be held by Escrow Agent in accordance with the Escrow
Agreement which shall provide that the Xxxxxxx Money Deposit be deposited
with, and held by (pending disbursement pursuant to this Contract), the
national office of the Escrow Agent located at LandAmerica Financial
Services Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx,
00000, Attn: Xxxxx Xxxxxxx.
(b) Allocation of Xxxxxxx Money Deposit. The Xxxxxxx Money Deposit
shall be allocated to the contemplated closings as follows (and, at any such
closing, the allocated amount shall be applied against the cash portion of the
Purchase Price payable at said closing):
(i) $1,000,000 (and interest from time to time accruing
thereon) shall be allocated to the CMBS Closing.
(ii) $250,000 (and interest from time to time accruing
thereon) shall be allocated to the Hollywood Closing.
(iii) $250,000 (and interest from time to time accruing
thereon) shall be allocated to the Millenia Closing.
(iv) Notwithstanding the foregoing:
(A) Omitted;
(B) If Purchaser's obligation to effect the Hollywood
Closing is terminated (or deemed terminated) in accordance with this
Contract, and if the CMBS Closing has not occurred and Purchaser's
obligation to effect the CMBS Closing has not previously been terminated
(or deemed terminated) in accordance with the provisions of this Contract,
then the portion of the Xxxxxxx Money Deposit allocated to the Hollywood
Closing shall be reallocated to the CMBS Closing; and
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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(C) If Purchaser's obligation to effect the Millenia
Closing is terminated (or deemed terminated) in accordance with this
Contract, and if either the CMBS Closing or the Hollywood Closing has not
previously occurred and Purchaser's obligation to effect the Millenia
Closing has not previously been terminated (or deemed terminated) in
accordance with this Contract, then the portions of the Xxxxxxx Money
Deposit previously allocated to the Millenia Closing shall be re-allocated
to the CMBS Closing (or, if the CMBS Closing has occurred, then to the
Hollywood Closing).
(c) Disbursement Upon Termination. If Purchaser terminates (or is
deemed to have terminated) its obligation to effect a particular closing in
accordance with the provisions of this Contract, then the following shall apply:
(i) Subject to Section 3(b), the portion of the Xxxxxxx Money
Deposit previously allocated to said closing shall be retained in escrow
and applied against the cash due at the next closing.
(ii) Effective as of said termination, Purchaser shall be
released from any further obligation to purchase, and Seller shall be
released from any further obligation to sell, the Equity Interests
attributable to the Relevant Centers with respect to said closing.
(iii) Purchaser and Seller shall execute, as further evidence
thereof, such cancellation instructions as may be necessary to effectuate
the cancellation of their respective obligations to effect said closing,
as may be reasonably required by either party or Escrow Agent. Upon the
performance by Purchaser and Seller of their respective obligations
pursuant to this Section 3(c), neither Purchaser nor Seller shall have any
further rights or obligations one to the other with regard to said closing
(except for those matters expressly provided for in this Contract to
survive the expiration or earlier termination of the parties obligations
to effect said closing).
(d) Disbursement Upon Failure of Condition. If a closing
contemplated by this Contract does not occur on or before the relevant closing
date established in Section 12 other than by reason of Seller's default or
inability to satisfy the conditions to Purchaser's obligations contained herein,
Seller shall be entitled to retain for Seller's own account the Xxxxxxx Money
Deposit then allocated to said closing. If a closing contemplated by this
Contract does not occur by reason of Seller's default or inability to satisfy
the conditions contained herein to Purchaser's obligations, the Xxxxxxx Money
Deposit then allocated to said closing shall be returned to Purchaser.
4. Financing Contingency: The Closing of the CMBS Centers is contingent
upon receipt of the following consents and confirmations from the CMBS Lender,
as follows:
(a) Purchaser's obligations to consummate the CMBS Closing shall be
subject to the condition precedent that Purchaser shall have received by the
fifth (5th) day prior to the Contingency Date a Preliminary Lender Estoppel
which shall confirm that the outstanding indebtedness under the CMBS Debt as of
the date of the Preliminary Lender's Estoppel Certificate is no greater than
$162,828,873 (the "CMBS Maximum Loan Amount"); and
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(b) Seller's and Purchaser's obligations to consummate the CMBS
Closing shall be subject to the condition precedent that Seller and Purchaser
shall have received by the fifth (5th) day prior to the Contingency Date an
agreement that effective as of the CMBS Closing, Seller and its Affiliates
(including the Guarantors) shall be released from any further liability in
respect of the CMBS Debt.
Seller and Purchaser shall cooperate in good faith to obtain the documents
described above, including the provision of a new guarantor entity to provide
guaranties (of the type presently set forth in the CMBS Loan Documents) of the
non-recourse carve-out provisions and the environmental indemnities (it being
understood, however, that the costs of pursuing the above documents shall be
borne as set forth in Section 14). The conditions precedent described in
Sections 4(a) and 4(b) shall not be deemed satisfied unless Purchaser on or
before the Contingency Date evidences in writing its satisfaction with the
above-described documents. If the foregoing conditions precedent are not timely
satisfied, then this Contract shall be terminated, and the provisions of Section
3(c) shall apply.
5. Due Diligence Contingency:
(a) Preliminary Inspection Materials: Seller has delivered to
Purchaser the documents, agreements, studies, reports, maps, surveys, plans and
specifications which were in Seller's possession and represents that such
materials fairly provide accurate and materially complete information in
Seller's possession (or otherwise known by Seller) concerning the matters
described in Exhibit B. Should Seller discover or receive any additional such
materials after the date hereof, Seller promptly shall deliver the same to
Purchaser. Seller further shall cooperate in delivering to Purchaser any
supplemental materials in Seller's possession as Purchaser reasonably requests.
Should Seller deliver any supplemental materials pursuant to this Section 5(a)
subsequent to the Contingency Date which indicate that the assets, liabilities,
business or prospects of a Partnership as of the Contingency Date were less
advantageous (from the vantage point of the Partnership) in a material adverse
manner than indicated by the materials delivered prior to the Contingency Date,
then (i) if such materials are delivered within seven (7) days of the closing
date scheduled under Section 12 of this Contract with respect to the Center
owned by said Partnership, then said closing date shall be extended for a period
of seven (7) days, and (ii) Purchaser shall have the right, for a period of
seven (7) days after its receipt of the same, to terminate its obligation to
effect said closing, in which case the provisions of Section 3(c) shall apply.
(b) Survey; Title: Seller, at Seller's expense, has delivered to
Purchaser the following:
(i) Survey: A copy of the surveys of the Property as described
on Exhibit B hereto.
(ii) Title: A current preliminary title report and/or
commitment(s) for title insurance covering the Property owned by the
Partnerships in the amount of the Purchase Price, issued by the Title
Company, and Seller shall arrange for a continuation of such title reports
to a date after the date hereof, showing title in the name of the
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applicable Partnerships, and together with a copy of all documents
referred to as exceptions or otherwise described therein, including, but
not limited to, any plat map, and including the coverages and endorsements
available in Florida and described on Exhibit C attached hereto (the
"Preliminary Title Report"). The Preliminary Title Report shall also
contain UCC searches in the name of the Seller and in the name of the
Partnerships in each county and state where the Property is located
relating to the partnership interests being sold and to the Personal
Property owned by the Partnerships.
(c) Environmental/Engineering: Purchaser may, at its expense obtain
current phase I environmental audits and architectural and engineering reports
on the Centers prepared by Building Diagnostics, Ltd., located in Silver
Springs, Maryland, and containing such information as required by Purchaser
(each an "Environmental and Engineering Report"). Notwithstanding the foregoing,
in the event any Environmental and Engineering Report for any Center reveals a
material defect in any of such other Center (other than contamination at Kendale
Lakes Plaza or Cross County Plaza from off-site sources) based upon which
Purchaser elects in accordance with Section 8 to terminate Purchaser's
obligation to effect the closing which was to involve such Center, then Seller
agrees to reimburse Purchaser for one-half of the costs of any such other
Environmental and Engineering Report, including one-half of the costs for any
Environmental and Engineering Report relating to a Center cross collateralized
with the Center which had the material defect. In addition, in the event
Purchaser fails to close on any of the Centers for any reason and Seller
determines that Seller has a need for and is satisfied with the quality and
completeness of any Environmental and Engineering Report relating to any of the
Centers Purchaser fails to close on, to be determined at Seller's sole
discretion, Seller agrees to reimburse Purchaser for one-half of the cost of any
such Environmental and Engineering Report upon such Environmental and
Engineering Report being certified to Seller by Building Diagnostics, Ltd., at
no additional cost to Seller. Upon Purchaser's receipt of such reimbursement
from Seller, Purchaser shall assign any interest of Purchaser in any such
Environmental and Engineering Report and the same shall be delivered to Seller,
lien free and without any claims thereon by the parties that prepared the same,
or by any other party.
6. Inspection Period: Purchaser shall have until May 31, 2001 (the
"Contingency Date) to conduct and complete an investigation, inspection and test
of all matters pertaining to the Centers and Purchaser's purchase of the Equity
Interests, including, but not limited to, the Preliminary Lender Estoppel
Certificate, the Inspection Materials, the Reports, any Environmental and
Engineering Report, a physical inspection of the Centers and the Leases (to the
extent then existing) of any space within any of the Centers (including without
limitation the Millenia Center). Each of Purchaser and Seller further shall have
the right, in its sole discretion by written notice to the other on or before
May 31, 2001, to extend the Contingency Date to June 30, 2001.
7. Inspection: If Purchaser is not satisfied with any of the Inspection
Materials, its due diligence work or its review thereof, Purchaser may give
Seller one or more written notices (an "Objection Notice") on or before the
Contingency Date, which shall list each item of objection in particular (an
"Objection Matter"). If Purchaser provides to Seller one or more Objection
Notices, Seller may elect (but shall have no obligation to), by notice to
Purchaser within five (5) calendar days after the Contingency Date (the "Cure
Election Deadline"), to cure
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the Objection Matters. If Seller elects to cure the Objection Matters, Seller
shall have until the date that is sixty (60) days after the Contingency Date
(such period being referred to as the "Cure Deadline") to complete its cure of
the Objection Matters, and Seller shall pay all costs associated with such cure
of the Objection Matters. The failure of Seller to make an election to cure or
not cure within the Cure Election Deadline a particular Objection Matter shall
be deemed to be an election by Seller not to cure the Objection Matter.
8. Election to Terminate Regarding Inspection: Purchaser shall have the
right, to be exercised in Purchaser's sole and absolute discretion, to terminate
its obligation to effect (i) one or both of the Hollywood Closing and the
Millenia Closing or (ii) all Closings, by giving Seller written notice of such
election to terminate on or before the Contingency Date; provided, however, that
Purchaser's right to terminate its obligation to effect the CMBS Closing and/or
one or both of the other closings shall be extended, with respect to such
closing, if Purchaser shall have given, prior to the Contingency Date, one or
more Objection Notices with respect to the Relevant Centers and Seller shall
have failed to elect to cure or elected not to cure such Objection Matters. Any
such extension shall be until five (5) days after the relevant Cure Election
Deadline. In addition, if Purchaser fails to timely deliver Purchaser's Election
Not to Terminate with respect to a closing pursuant to Section 9 below, such
failure shall be deemed to constitute Purchaser's election to terminate its
obligations to effect such closing pursuant to this Section 8, and provided
further that an election to terminate the CMBS Closing shall be deemed to be an
election to terminate this Contract as to all closings (other than as provided
in Section 13).
9. Election Not to Terminate Regarding Inspection: In the event Purchaser
desires, in Purchaser's sole and absolute discretion, not to terminate its
obligation to effect the CMBS Closing and one or both of the Hollywood Closing
or Millenia Closing, on or before the Contingency Date, Purchaser shall deliver
written notice to Seller of Purchaser's election not to terminate its
obligations to effect such closing (a "Purchaser's Election Not to Terminate");
provided, that if Purchaser has, in accordance with Section 7 above, provided
one or more Objection Notices to Seller and Seller has made its election to cure
the Objection Matters, then Purchaser's Election Not to Terminate as to such
closing may be given on or before the date that is five days after the
expiration of the Cure Deadline. In the event Purchaser fails to timely deliver
to Seller a Purchaser's Election Not to Terminate with respect to any closing in
accordance with this Section 9, such failure shall be deemed to constitute
Purchaser's election to terminate its obligation to effect said closing. In the
event Seller fails or refuses to cure an Objection Matter (whether or not it has
elected to do so) and, in any event, Purchaser gives a Purchaser's Election Not
to Terminate with respect to a closing, then said closing(s) shall proceed as
provided in this Contract without adjustment to the Purchase Price and with
Purchaser's acceptance of the Objection Matter in its "as-is, where-is"
condition, provided that, except as provided in Section 13 below, Purchaser may
only effect the Hollywood Closing and/or the Millenia Closing if it first or
simultaneously therewith effects the CMBS Closing.
10. Tenant Estoppel Certificates:
(a) Seller shall deliver by no later than fifteen (15) calendar days
prior to each closing date for a closing contemplated by this Contract (with
respect to each such closing, the
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"Estoppel Delivery Deadline") estoppel certificates substantially in the form of
Exhibit D attached hereto from each of the Tenants under leases pertaining to
the Relevant Centers for said closing (each, a "Tenant Estoppel Certificate"),
which shall be effective no earlier than thirty (30) calendar days prior to the
applicable closing date. Notwithstanding any terms and conditions of this
Contract to the contrary, if Seller has diligently used its reasonable efforts
to obtain each such Tenant Estoppel Certificate, Seller, for any such Tenant
which fails to deliver a Tenant Estoppel Certificate, shall, execute and deliver
to Purchaser by the Estoppel Delivery Deadline a landlord estoppel certificate
substantially in the form of Exhibit E attached hereto and reasonably
satisfactory to Purchaser (each, a "Landlord Estoppel Certificate") in the same
form and substance of a Tenant Estoppel Certificate, which Landlord Estoppel
Certificate shall be effective as of the Estoppel Delivery Deadline; provided,
that for each contemplated closing Seller shall have obtained a Tenant Estoppel
Certificate from all of the Tenants under the Leases for the Relevant Centers of
not less than the following: (a) all of the Anchor Tenants with respect to the
Relevant Centers and (b) at least eighty-five percent (85%) of all the Tenants
under the Leases for the Relevant Centers that are not defined as Anchor Tenants
(with respect to each Center, the "Shop Tenants"). If Seller fails to provide a
Tenant Estoppel Certificate from all of the Anchor Tenants with respect to the
Relevant Centers and at least eighty-five percent (85%) of the Shop Tenants with
respect to the Relevant Centers, Purchaser may, in its sole and absolute
discretion, elect to either (i) proceed with the closing without adjustment to
the Purchase Price and waive the delivery of any such Tenant Estoppel
Certificate from such Tenants (but Seller shall nevertheless provide a Landlord
Estoppel Certificate for all such Tenants) or (ii) on or before the relevant
closing date established pursuant to Section 12, terminate its obligation to
effect said closing.
(b) Purchaser shall neither unreasonably withhold its approval of,
nor unreasonably disapprove, any Tenant Estoppel Certificate or Landlord
Estoppel Certificate (together referred to as an "Estoppel Certificate"). Any
Estoppel Certificate which confirms the same financial information as contained
in the corresponding Lease delivered to Purchaser shall be deemed approved for
purposes of this Section 10 with respect to such financial information (it being
understood that the foregoing shall not be construed as limiting Purchaser's
right, in its sole discretion, to terminate its obligations to effect a closing
hereunder in accordance with Section 8). With respect to each closing
contemplated by this Contract, if Purchaser disapproves any Estoppel Certificate
delivered with respect to Leases for the Relevant Centers, then Purchaser may
deliver to Seller one or more written notices describing in reasonable detail
the nature of, and reason for, Purchaser's disapproval (each an "Estoppel
Objection Notice") within seven (7) days following Purchaser's receipt of
Estoppel Certificates for all of the Leases for the Relevant Centers. Each
Estoppel Objection Notice shall list each item of dissatisfaction or objection
in particular (each, an "Estoppel Objection Matter" and collectively, the
"Estoppel Objection Matters"). Except to the extent that Seller receives an
Estoppel Objection Notice with respect to a Lease within such seven (7) day
period, Purchaser shall be deemed to have approved the Estoppel Certificates
pertaining to such Leases. If Seller receives one or more Estoppel Objection
Notice(s) within such seven (7) day period, then Seller may, but shall not be
obligated to, agree to endeavor to cure some or all of the Estoppel Objection
Matters described in such Estoppel Objection Notice by delivery of written
notice of such election to Purchaser (the "Estoppel Cure Notice") within three
(3) business days after receipt of such Estoppel Objection Notice(s). If Seller
fails to give an Estoppel Cure Notice to Purchaser within such three (3)
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business day period with respect to a particular Estoppel Objection matter, then
Seller shall be deemed to have elected not to endeavor to cure such Estoppel
Objection Matter. If Seller timely agrees to endeavor to cure an Estoppel
Objection Matter raised with respect to Leases of space within the Relevant
Centers involved in a closing contemplated by this Contract, then Seller shall
have the right to effect such cure until sixty (60) days after the last day on
which Seller received an Estoppel Objection Notice from Purchaser with respect
to such Relevant Centers (for each contemplated closing, the "Estoppel Cure
Deadline"). If Seller elects to cure an Estoppel Objection Matter in its
Estoppel Cure Notices, then it shall pay all costs associated with such cure.
(c) With respect to each closing contemplated by this Contract, if
Seller (x) fails or elects not to cure an Estoppel Objection Matter in
accordance with Section 10(b), or (y) fails to provide Purchaser with an
Estoppel Cure Notice for an Estoppel Objection Matter in accordance with Section
10(b), then Purchaser may, as its sole and exclusive remedy, either:
(i) Waive such Estoppel Objection Matter by notice to Seller
given within seven (7) days after Purchaser has received the Estoppel Cure
Notice indicating Seller's election not to cure such Estoppel Objection
Matter, or within seven (7) days after the expiration of the three (3)
business day period within which Seller was entitled to have provided the
Estoppel Cure Notice, if Seller fails to provide an Estoppel Cure Notice,
or (B) as to Estoppel Objection Matters which Seller elects to cure
pursuant to an Estoppel Cure Notice but fails to cure by the Estoppel Cure
Deadline, within seven (7) business days after the Estoppel Cure Deadline.
If Purchaser waives such Estoppel Objection Matter, it shall be deemed to
have accepted same and there shall be no Purchase Price adjustment with
respect thereto.
(ii) Terminate its obligation to effect said contemplated
closing by giving Seller written notice of such termination (with respect
to said contemplated closing, an "Estoppel Termination Notice") within
seven (7) business days after (A) Purchaser has received from Seller the
Estoppel Cure Notice indicating Seller's election not to cure such
Estoppel Objection Matter, or (B) the expiration of the three (3) business
day period within which Seller should have provided an Estoppel Cure
Notice, if Seller fails to provide the Estoppel Cure Notice, or (C) the
relevant Estoppel Cure Deadline, if Seller elects pursuant to an Estoppel
Cure Notice to cure an Estoppel Objection Matter but thereafter fails to
effect such cure by the Estoppel Cure Deadline. If Purchaser has not
waived its objections as to such Estoppel Objection Matter within the time
period as provided for in Section 10(b)(i) and fails to provide an
Estoppel Termination Notice to Seller by the applicable deadline described
herein, then Purchaser will be deemed to have elected its right to
terminate under this Section 10(b)(ii). Notwithstanding anything contained
herein, if this Contract is terminated as to the CMBS Centers, it shall be
deemed terminated as to the remaining Centers, except as provided in
Section 13.
11. Property Inspection: Purchaser shall have the right to conduct an
inspection of the Property prior to the Contingency Date. Purchaser shall
indemnify and hold Seller harmless from loss, damage, claim or liability
(including attorneys fees) caused to the physical condition
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of the Property arising out of its physical inspection. This provision shall
survive Closing or the expiration or earlier termination of this Contract.
12. Closing Dates:
(a) The CMBS Closing shall be on a date (the "CMBS Closing Date")
and, except as otherwise provided herein the Hollywood Closing shall be on a
date (the "Hollywood Closing Date"), which is on or before thirty (30) days
after the last to occur of the following: (i) the Contingency Date, (ii) the
Cure Deadline for the Relevant Centers or (iii) the expiration of the Estoppel
Cure Deadline for the Relevant Centers.
(b) Notwithstanding the foregoing, Purchaser may extend the date for
the Hollywood Closing for up to 30 days on notice given at least 5 days prior to
the applicable scheduled closing date scheduled in Section 12(a).
(c) The Millenia Closing shall occur on the Millennium Closing Date
as set forth in Section 16(d)(ii).
(d) The foregoing closing dates are subject to further extension
pursuant to Sections 5(a), 16(b)(ii), 16(c)(ii) and 21(d).
(e) Each closing shall take place on the applicable closing date (as
determined above) at the offices of Xxxxxxxxx Xxxxxxx, LLP, at either 0000
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx or 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, as Seller shall designate. Time shall be of the
essence with respect to the closing dates established in this Section 12.
(f) Purchaser may purchase all of the Equity Interests attributable
to the CMBS Centers only as a group at the CMBS Closing and; except as provided
in Section 13, may purchase the Hollywood Equity and/or the Millenia Equity only
if the CMBS Equity is first purchased.
(g) Purchaser shall obtain title to the Property by acquiring all of
Seller's interests in the Partnerships holding title to the Property, as set
forth in Exhibit A hereto, versus taking direct title to the Property.
13. 1031 Exchange. Purchaser shall have the right to acquire the fee title
to the Hollywood Center from the applicable Partnership in connection with a
Section 1031 exchange for Purchaser. Any such exchange may precede the CMBS
Closing. Should Purchaser elect, with notice to Seller, to acquire the Hollywood
Center as replacement properties in connection with an IRS Section 1031
exchange, Seller shall take such steps as Purchaser reasonably may request in
order to satisfy the requirements of such a transaction. Purchaser shall provide
Seller with written notice of such election at least 15 days prior to the
closings otherwise applicable to such Centers. Should Purchaser make such
election, the parties shall make appropriate adjustments to the mechanics
contemplated for the Hollywood Closing (e.g., Seller shall cause the Partnership
owning the Hollywood Center to transfer fee title to the Center to a designee
identified by Purchaser, rather than Seller transferring to Purchaser the Equity
Interests
12
attributable to the Center), provided that Seller shall not be obligated to pay
any additional costs or expenses, including any incremental escrow, transfer
tax, assumption tax on notes or mortgages, and title and brokerage cost beyond
that which Seller otherwise would have been required to pay at the closing for
such Center had Purchaser not made such election.
14. Prorations and Closing Costs: The following shall apply with respect
to each closing:
(a) At any closing contemplated by this Contract, Purchaser shall
pay (i) Purchaser's attorneys' fees; (ii) one-half of the Escrow Agent's fees
and costs associated with the escrow, to the extent not previously paid; (iii)
in the case of the CMBS Closing, to Seller all utility deposits, amounts held in
reserve by the CMBS Lender for future expenditures for tenant replacement and
for insurance, taxes and capital expenditures; (iv) in the case of the Hollywood
Closing or the Millenia Closing, respectively, all costs of obtaining new
financing for such Centers; (v) the cash portion of the Purchase Price payable
at said closings (as determined in accordance with Section 2, but subject to any
proration adjustment required by this Section 14); (v) all costs and transfer
taxes required by Section 13, and (vi) Purchaser's share of prorations.
(b) Seller shall pay: (i) all Title Costs to the Title Company and
the cost of the endorsements to the Title Policy available in Florida and as
requested by Purchaser as per Exhibit C; (ii) any additional surveyor costs
incurred in accommodating any comments to the surveys reasonably made by
Purchaser, pursuant to Objection Notices delivered pursuant to Section 7; (iii)
all costs assessed in connection with or as a condition to the provision of the
Preliminary Lender Estoppel and Final Lender Estoppel (including, for example,
all application fees, credit assessment charges, professional fees (including
attorneys, appraisers and accountants), recording and title charges, Assumption
Fee, etc., it being understood, however, that Seller has not committed to bear
any principal paydown or new or increased deposits or fees, other than the
Assumption Fee, in order to obtain the consent of the CMBS lender to the
transactions contemplated hereby; (iv) one-half of the Escrow Agent's fees and
costs associated with the Escrow Agreement; (v) Seller's share of prorations;
(vi) Seller's attorneys' fees; and (vii) except as provided in Section 13, all
transfer taxes, if any, applicable to the transactions contemplated hereby,
including documentary stamp tax, mortgage, recording and other transfer taxes
payable with respect to the transactions contemplated hereby, if any, and any
sales, use or other taxes imposed as a result of the transfer of the beneficial
ownership of the Partnerships' real and personal property pursuant to this
Contract, any Tax attributable to the transfer of the Equity Interests pursuant
to this Contract, and any interest or penalty asserted with respect to any such
Tax (collectively, the "Transfer Taxes"), and any interest or penalty
attributable to any of the foregoing.
(c) All rents, taxes (including property taxes and assessments which
are required to be paid with property tax xxxxxxxx, but excluding Transfer
Taxes), operating costs and other customary items of income and expense relating
to the operation of the Relevant Centers with respect to a Closing, shall be
prorated as of the closing, giving appropriate credit to Seller for those
operating expenses, not including property taxes and assessments, paid in
advance by the Partnerships and applicable to the month of the closing, and for
which tenants are responsible for payment after the closing. In the event an
Anchor Tenant who is reasonably financially
13
acceptable to Purchaser and whose lease requires that such Anchor Tenant pays
its property taxes directly to the appropriate taxing authority, fails to pay
its share of property taxes for the year of said closing and after having been
billed for same, and after commercially reasonable efforts are made by Purchaser
to collect the same, then the Purchaser shall offset the amount of such
uncollected taxes prorated to the closing date, against the Promissory Note,
whereupon the Purchaser's rights to collect such prorated portion of such unpaid
property taxes shall be assigned to Seller.
(d) Tenant security deposits relating to Leases of space within the
Relevant Center (to the extent not applied to tenant obligations and retained by
Seller if allowed per the terms and conditions of any such Tenant Lease) shall
be credited against the cash portion of the Purchase Price otherwise payable at
a closing pursuant to Section 2. Items of income and expense that cannot be
prorated as of the closing, such as percentage rents payable in arrears
following the closing that pertain in part to periods prior to the closing,
shall be reprorated by the parties outside of escrow as soon as feasible.
(e) Omitted.
(f) Seller shall prepare a good faith estimate of the closing
prorations involved in each closing in accordance with this Section and shall
provide supporting documentation as soon as reasonably possible prior to the
closing, taking into account Current Liabilities and Prepaid Payables.
(g) Within thirty (30) days after each closing and periodically
thereafter, if additional adjustments are necessary, Purchaser shall prepare and
deliver to Seller a schedule demonstrating the computation of the closing date
prorations, including detailed supporting schedules for each of the line items
appearing in such computation.
(h) If a closing shall occur before property taxes, water rates and
charges and sewer taxes and rents are finally fixed with respect to the Relevant
Centers, then the apportionments thereof made at the closing shall be based upon
the property taxes, water rates and charges and sewer taxes and rents in effect
as of the closing date or for the period prior to the period in which the
closing date occurs, as applicable. After the closing, Purchaser and Seller
shall make any necessary recalculation of the apportionment of any of such items
within sixty (60) days after the date on which the amount thereof is finally
determined, and promptly make an appropriate settlement based upon such
recalculation.
(i) The provisions of this Section 14 shall survive the closings.
15. Real Estate Commissions: Purchaser and Seller each represents and
warrants to the other that as to itself it has not dealt with any brokers,
finders or other similar persons or entities with respect to the transactions
contemplated by this Contract, other than X.X. Xxxxxxx Realty Co. (the
"Broker"). Seller shall pay any brokerage commissions, finder's fees and other
amounts payable to Broker pursuant to separate agreement. Other than the amount
payable by Seller to Broker pursuant to separate agreement and as otherwise
disclosed to Purchaser, Purchaser and Seller hereby represent and warrant to
each other that the warranting party has not entered into nor will such
warranting party enter into any agreement, arrangement or
14
understanding with any person or entity which will result in the obligation of
the other party to pay any brokerage commission, finder's fee or other amount in
connection with the transactions contemplated by this Contract. Purchaser and
Seller hereby agree to and shall indemnify, defend and hold harmless the other
from and against any and all claims, costs, damages and/or Liabilities arising
from the breach of the foregoing representation and warranty by either Seller or
Purchaser, as the case may be. This provision is for the sole benefit of
Purchaser and Seller and no third party shall have any rights as a result of
this provision.
16. Purchase Price Adjustments:
(a) Brainfood Adjustment.
(i) Seller and Swerdlow, jointly and severally as tenant,
shall master lease the former bookstore space in Cypress Creek Station
(the "Brainfood Space") from Purchaser for a period commencing on the CMBS
Closing Date and ending on the date (the "Brainfood Reconciliation Date")
which is the first to occur of:
(A) the date which is thirty six (36) months after the
CMBS Closing Date, or
(B) the date the Brainfood Space is leased pursuant to a
lease (a "Brainfood Replacement Lease") that satisfies each of the
following requirements: (1) the lease shall be to a tenant approved by
Purchaser, such approval not to be unreasonably withheld (it being
understood, however, that Purchaser shall have the right to disapprove a
proposed tenant if it has reasonable concerns as to the credit worthiness,
reputation or commercial experience of such tenant or as to the manner in
which the proposed business of the tenant will integrate with other
tenants and uses in the Center); (2) the lease shall be at an annual gross
rental rate and upon other terms and conditions substantially and
reasonably equal to or better (in terms of benefit to the landlord) than
those under the lease with the former tenant of such space, as reasonably
determined by Purchaser, but may be at a rental rate less than $20 per
gross leaseable square foot; (3) the lease shall be to a tenant who has
accepted occupancy, who has provided any requisite security and other
deposits, whose obligation to commence paying rent is unconditional, who
is not in default in any obligation to pay rent under its lease and who
has executed an estoppel certificate reasonably acceptable to Purchaser;
and (4) Seller and Swerdlow shall have paid all lease commissions, tenant
improvement costs, tenant relocation costs or other similar costs payable
by the landlord on account of the Brainfood Replacement Lease, and Seller
and Swerdlow further shall have paid to the Partnership owning the Cypress
Creek Station an amount equal to any rent credits, rent abatements or
other tenant inducements provided to the tenant under the Brainfood
Replacement Lease (as reasonably calculated by Purchaser). The tenant
under the Brainfood Replacement Lease is referred to as the "Brainfood
Replacement Tenant".
(ii) Brainfood Master Lease. The base rent payable by Seller
and Swerdlow, as tenant, during the term of the Brainfood Master Lease
shall be $20 per gross leaseable square foot, and such Lease further shall
obligate Seller and Swerdlow to
15
reimburse Purchaser for operating expenses, maintenance expenses,
insurance costs and tax costs in the same manner as the former tenant
under the lease of the Brainfood Space was required to reimburse the
landlord for such items. All other terms of the Brainfood Master Lease
shall be commercially reasonable for the intended master lease purposes.
Purchaser, Seller and Swerdlow shall cooperate to approve, at least seven
(7) days prior to the Contingency Date, the form of the master lease.
(iii) Brainfood Note. If at the CMBS Closing the Brainfood
Replacement Lease is not in existence, Purchaser shall also deliver at the
CMBS Closing, a senior, unsecured promissory note of Price Enterprises,
Inc. (the "Brainfood Note") in the principal amount of $1,000,000, bearing
interest at 9.5% per annum (and an 18% default rate). The Brainfood Note
shall be due and payable in full on the earlier of (x) three (3) years
after the CMBS Closing or (y) five (5) days after the Brainfood
Reconciliation Date. The Brainfood Note shall be paid first by setoff of
the Brainfood Setoff Amount described below. Purchaser further shall have
the right to setoff against amounts payable under the Brainfood Note any
amounts then remaining owing by Seller and Swerdlow under the Brainfood
Master Lease (it being understood, however, that nothing herein shall be
construed as affecting Seller's and Swerdlow's obligation to pay amounts
under the Brainfood Master Lease as and when due ). Any remaining balance
of the Brainfood Note shall be paid in cash.
(iv) On the Brainfood Reconciliation Date, the parties
shall calculate the "Brainfood Setoff Amount" as follows:
Step 1: Compute the Stabilized Rent under the
Brainfood Replacement Lease. If no Brainfood Replacement Lease
exists as of the Brainfood Reconciliation Date, then the amount
calculated pursuant to this Step 1 shall be deemed to be zero
($0.00).
Step 2: Divide the amount computed in Step 1 by
9.5%.
Step 3: Repeat the calculations undertaken
pursuant to Steps 1 and 2, but assume a full contractual base rent
for the Brainfood Space of $20 per gross leaseable square foot.
Step 4: Subtract the amount calculated pursuant to
Step 2 from the amount calculated pursuant to Step 3.
The Brainfood Setoff Amount shall equal the remainder computed in Step 4
and shall not exceed the amount then owing under the Brainfood Note.
(b) CMBS Vacancies.
(i) CMBS Master Leases. If any space ("CMBS Vacated Space")
within a CMBS Center becomes vacant as a result of a tenant vacating its
premises or Seller terminating said tenant's Lease between the Contingency
Date and the CMBS Closing Date, and if the aggregate annual gross rent
payable under the terms of the
16
pertinent Leases at said Center (for each CMBS Center, the "CMBS Lost
Rent") exceeds the Permitted Lost Rent Basket for said CMBS Center, then
Seller and Swerdlow, jointly and severally as tenant, shall enter into a
master lease with respect to all CMBS Vacated Space within said Center
(the "CMBS Master Lease") as follows:
(A) The aggregate annual gross rental payable under a
CMBS Master Lease for a Center shall be equal to the amount by which the
CMBS Lost Rent exceeds the Permitted Lost Rent Basket for said Center. For
these purposes, the CMBS Lost Rent for the Center shall be calculated by
summing, for all CMBS Vacant Space within a Center, the gross rent that
would have been payable under the respective Lease that formerly applied
to such CMBS Vacant Space, as such gross rent would have been adjusted
from time to time in accordance with the terms of said former Lease. As
Replacement Leases at said Center are entered into, the CMBS Master Lease
shall be amended from time to time as needed (i) to remove the space
covered by the Replacement Lease from the space leased pursuant to the
particular CMBS Master Lease, and (ii) to reduce the periodic gross rent
payable under the CMBS Master Lease by the periodic gross rent payable
under the Replacement Lease. The annual gross rent payable under a CMBS
Master Lease shall be paid on a monthly basis in advance on the first day
of each calendar month.
(B) The term of each particular CMBS Master Lease shall
commence on the CMBS Closing Date and shall end on the first to occur of:
(i) thirty-six (36) months from the CMBS Closing Date, (ii) when all CMBS
Vacated Space for the applicable Center has been re-leased pursuant to one
or more Replacement Leases, or (iii) when the total periodic annual gross
rent from all Replacement Leases at said CMBS Centers has been reduced to
zero pursuant to Section 16(b)(i)(A)(ii). For purposes of this Contract,
the term "CMBS Vacancy Reconciliation Date" shall mean the date upon which
the last of the CMBS Master Leases has terminated.
(C) During the term of a CMBS Master Lease, Seller and
Swerdlow shall have the right to seek prospective tenants to execute
Replacement Leases with respect to space covered by the CMBS Master Lease.
All such leases shall be subject to the approval of Purchaser in its sole
discretion (provided that if Purchaser refuses to permit the Partnership
owning the Center to enter into any such lease proposed by Seller and
Swerdlow which qualifies as a Threshold Lease, then (1) the space proposed
to be let pursuant to such lease shall be removed from the space covered
by the CMBS Master Lease, and (2) the periodic gross rent payable under
said CMBS Master Lease shall be reduced, in each case as if such lease had
been entered into by the Partnership owning the Center in accordance with
Section 16(b)(i)(A)). Seller and Swerdlow shall not otherwise use, occupy,
sublease or assign its rights under a CMBS Master Lease. Except as set
forth above, with respect to each CMBS Vacated Space the terms of the
applicable CMBS Master Lease shall be the same as those that applied under
the former Lease applying to said CMBS Vacated Space.
(ii) CMBS Vacancy Note. If a CMBS Master Lease is required at
the CMBS Closing, as provided above, Purchaser shall deliver at the CMBS
Closing a senior,
17
unsecured promissory note of Price Enterprises, Inc. (the "CMBS Vacancy
Note") in the principal amount equal to the amount obtained by dividing
the initial aggregate annual gross rent payable under all of the CMBS
Master Leases on the CMBS Closing Date by 9.5% (the "CMBS Vacant Tenant
Value"); provided, however, that if such amount is greater than
$1,000,000, then:
(1) Seller shall have the right, by notice to
Purchaser on the CMBS Closing Date, to increase the principal amount
of the CMBS Vacancy Note to equal the CMBS Vacant Tenant Value; and
(2) if Seller does not so elect to increase the
principal amount of the CMBS Vacancy Note to equal the CMBS Vacant
Tenant Value, then the CMBS Closing Date shall be extended for a
period of five (5) days, and Purchaser shall have the right during
said 5 day period to elect either to terminate its obligation to
close as to all Centers or to proceed to close on the CMBS Centers
on said extended closing date according to the remaining terms of
this Contract.
The CMBS Vacancy Note shall bear interest at 9.5% per annum (with an 18%
default rate) and shall be due and payable in full on the earlier of (x)
three (3) years from the CMBS Closing or (y) five (5) days after the CMBS
Vacancy Reconciliation Date. The CMBS Vacancy Note shall be paid first by
setoff of the CMBS Vacancy Setoff Amount (as described in Section
16(b)(iii) below). Purchaser further shall have the right to setoff
against amounts payable under the CMBS Vacancy Note any amounts then
remaining owing by Seller and Swerdlow under any CMBS Master Lease (it
being understood, however, that nothing herein shall be construed as
affecting Seller's and Swerdlow's obligation to pay amounts under each
CMBS Master Lease as and when due). Any remaining balance of the CMBS
Vacancy Note shall be paid in cash.
(iii) CMBS Vacancy Reconciliation. On the CMBS Vacancy
Reconciliation Date, the parties shall undertake the following
calculations with respect to the CMBS Master Lease.
Step 1: Compute the aggregate annualized gross rent
payable under all CMBS Master Leases as of the day preceding the
CMBS Vacancy Reconciliation Date (i.e., without giving effect to the
termination of the CMBS Master Leases on the following day).
Step 2: Divide the Step 1 amount by 9.5%.
The "CMBS Vacancy Setoff Amount" shall equal the amount determined in Step
2 above and shall not exceed the amount then owing under the CMBS Vacancy
Note.
(iv) Notwithstanding the foregoing, Seller and Swerdlow may
elect in writing prior to the CMBS Closing to exclude all or a portion of
the rent otherwise payable under a CMBS Master Lease as provided above, so
as to reduce such CMBS Master Lease or eliminate the need for a CMBS
Master Lease entirely. In such event (1)
18
the Purchase Price shall be reduced by an amount equal to such excluded
portion of the rent divided by 9.5%, and (2) any reduction in Purchase
Price calculated pursuant to clause (1) of this sentence shall be deducted
from the cash portion of the Purchase Price payable at the CMBS Closing.
(c) Hollywood Vacancies.
(i) Hollywood Master Lease. If any space ("Hollywood Vacated
Space") within the Hollywood Center or the Park Plaza Center becomes
vacant as a result of a tenant vacating its premises or Seller terminating
said tenant's lease between the Contingency Date and the Hollywood Closing
Date, and if the aggregate annual gross rent payable under the terms of
the Leases for said tenants (the "Hollywood Lost Rent") exceeds the
Permitted Lost Rent Basket for the Hollywood Center, then Seller and
Swerdlow, jointly and severally as tenant, shall enter into a master lease
with respect to all Hollywood Vacated Space (the "Hollywood Master Lease")
as follows:
(A) The aggregate annual gross rental payable under the
Hollywood Master Lease shall be equal to the amount by which the Hollywood
Lost Rent exceeds the Permitted Lost Rent Basket for the Hollywood Center.
For these purposes, the Hollywood Lost Rent shall be calculated by
summing, for all Hollywood Vacant Space, the annual gross rent that would
have been payable under the respective Lease that formerly applied to such
Hollywood Vacant Space, as such annual gross rent would have been adjusted
from time to time in accordance with the terms of said former Lease. As
Replacement Leases are entered into at Hollywood Center, the Hollywood
Master Lease shall be amended from time to time as needed (1) to remove
the space covered by the Replacement Lease from the space covered by the
Hollywood Master Lease and (2) to reduce the periodic gross rent payable
under the Hollywood Master Lease by the periodic gross rent payable under
the Replacement Lease. The annual gross rent payable under a CMBS Master
Lease shall be paid on a monthly basis in advance on the first day of each
calendar month.
(B) The term of the Hollywood Master Lease shall
commence on the Hollywood Closing Date and shall end on a date (the
"Hollywood Vacancy Reconciliation Date") which is the first to occur of:
(i) thirty-six (36) months from the Hollywood Closing Date, (ii) when all
Hollywood Vacated Space has been re-leased pursuant to one or more
Replacement Leases, or (iii) when the total periodic annual gross rent
from all Replacement Leases at the Hollywood Center has been reduced to
zero pursuant to Section 16(c)(i)(A).
(C) During the term of the Hollywood Master Lease,
Seller and Swerdlow shall have the right to seek prospective tenants to
execute Replacement Leases with respect to space covered by the Hollywood
Master Lease. All such tenants shall be subject to the approval of
Purchaser, in its sole discretion (provided that if Purchaser refuses to
permit the Partnership owning the Hollywood Center to enter into any such
lease proposed by Seller and Swerdlow which qualifies as a Threshold
Lease, then (1) the space proposed to be let pursuant to such lease shall
be removed from the space covered
19
by the Hollywood Master Lease, and (2) the periodic gross rent payable
under the Hollywood Master Lease shall be reduced, in each case as if such
lease had been entered into by the Partnership owning the Hollywood Center
in accordance with Section 16(c)(i)(A)). Seller and Swerdlow shall not
otherwise use, occupy, sublease or assign its rights under the Hollywood
Master Lease. Except as set forth above, with respect to each Hollywood
Vacated Space the terms of the Hollywood Master Lease shall be the same as
those that applied under the former Lease applying to said Hollywood
Vacated Space.
(ii) Hollywood Vacancy Note. If a Hollywood Master Lease is
required at the Hollywood Closing, as provided above, Purchaser shall
deliver at the Hollywood Closing a senior, unsecured promissory note of
Price Enterprises, Inc. (the "Hollywood Vacancy Note") in the principal
amount equal to the amount obtained by dividing the annual gross rent
payable under the Hollywood Master Lease on the Hollywood Closing Date by
9.5% (the "Hollywood Vacant Tenant Value"); provided, however, that if
such amount is greater than $1,000,000 minus the principal amount of the
CMBS Vacancy Note, then:
(1) Seller shall have the right, by notice to
Purchaser on the Hollywood Closing Date, to increase the principal
amount of the Hollywood Vacancy Note to equal the Hollywood Vacant
Tenant Value; and
(2) if Seller does not so elect to increase the
principal amount of the Hollywood Vacancy Note to equal the
Hollywood Vacant Tenant Value, then the Hollywood Closing Date shall
be extended for a period of five (5) days, and Purchaser shall have
the right during said 5 day period to elect either to terminate its
obligation to close as to the Hollywood Center or to proceed to
close on the Hollywood Center on said extended closing date
according to the remaining terms of this Contract.
The Hollywood Vacancy Note shall bear interest at 9.5% per
annum (with an 18% default rate) and shall be due and payable in full on
the earlier of (x) three (3) years from the Hollywood Closing or (y) five
(5) days after the Hollywood Vacancy Reconciliation Date. The Hollywood
Vacancy Note shall be paid first by setoff of the Hollywood Vacancy Setoff
Amount (as described in Section 16(c)(iii) below). Purchaser further shall
have the right to setoff against amounts payable under the Hollywood
Vacancy Note any amounts then remaining owing by Seller and Swerdlow under
the Hollywood Master Lease (it being understood, however, that nothing
herein shall be construed as affecting Seller's and Swerdlow's obligation
to pay amounts under the Hollywood Master Lease as and when due ). Any
remaining balance of the Hollywood Note shall be paid in cash.
(iii) Hollywood Vacancy Reconciliation. On the Hollywood
Vacancy Reconciliation Date, the parties shall undertake the following
calculations with respect to the Hollywood Master Lease.
20
Step 1: Compute the aggregate annualized gross rent
under the Hollywood Master Lease, as of the day preceding the
Hollywood Vacancy Reconciliation Date (i.e., without giving effect
to the termination of the Hollywood Master Lease on the following
day).
Step 2: Divide the Step 1 amount by 9.5%.
The "Hollywood Vacancy Setoff Amount" shall equal the amount
determined in Step 2 above and shall not exceed the amount then owing
under the Hollywood Vacancy Note.
(iv) Notwithstanding the foregoing, Seller may elect in
writing prior to the Hollywood Closing to exclude all or a portion of the
rent otherwise payable under the Hollywood Master Lease as provided above,
so as to reduce the rent thereafter payable under such Hollywood Master
Lease rent or eliminate the need for a Hollywood Master Lease entirely. In
such event (1) the Purchase Price shall be reduced by an amount equal to
such excluded portion of the rent divided by 9.5%, and (2) any reduction
in Purchase Price calculated pursuant to clause (1) of this sentence shall
be deducted from the cash portion of the Purchase Price payable at the
Hollywood Closing.
(d) The Millenia Center.
(i) Purchaser shall use commercially reasonable efforts to
obtain financing satisfactory to Purchaser for the portion of the Purchase
Price payable by Purchaser at the Millenia Closing. If Purchaser has not
obtained a satisfactory commitment for such financing by September 30,
2001, Purchaser may, on notice to Seller on or before September 30, 2001,
elect to terminate its obligation to purchase the Millenia Equity. In such
event, Purchaser's obligation to purchase, and Seller's obligation to
sell, the Millenia Equity shall terminate, and the $250,000 Escrow Deposit
held for the Millenia Closing, and any interest earned thereon will be
released to Purchaser and neither party shall have any further rights or
obligations with respect to Millenia Center or the Millenia Equity, except
for such provisions as are expressly provided to survive termination of
this Contract. Purchaser's obligation to effect the Millenia Closing shall
be subject to the satisfaction (or waiver by Purchaser) of the following
additional conditions:
(A) Seller shall have completed construction of (1) all
improvements which it is obligated to complete under the agreements
pertaining to the leases of space for the Home Depot, Home Expo and X.X.'s
stores and (2) all other improvements currently in the process of being
constructed at Millenia Center, in each case in a good and workmanlike
manner and substantially in accordance with plans and specifications
provided to Purchaser as part of the Preliminary Inspection Materials
(subject to immaterial deviations from said plans that do not adversely
affect the structural integrity or aesthetics of the Millenia Center in
any material respect) or as otherwise reasonably approved by Purchaser.
Such improvements shall have been constructed through contractors
identified in writing by Seller to Purchaser prior to
21
September 30, 2001, or as Seller otherwise advises, and such contractors
shall have provided commercially customary warranties with respect to such
work (e.g., warranties calling for the one year Florida Statutory warranty
or any longer warranty provided under the contract with the contractor, it
being understood, however, that the warranty period with respect to any
roofs included in such work shall be at least ten years) and lien releases
assuring that all potential mechanics, materialmen, or similar lien
claimants have been paid in full (and copies of the foregoing shall have
been provided to Purchaser) or the Title Company shall issue a title
policy for the Millenia Amount without exception for mechanics liens or
with affirmative insurance against collection thereof.
(B) Seller shall have delivered to Purchaser on or
before January 15, 2002: (1) as-built plans and a certificate from the
architect certifying that the construction was completed substantially in
accordance with the plans and specifications; (2) copies of the warranties
referenced in Section 16(d)(i)(A); (3) evidence reasonably satisfactory to
Purchaser that (a) the tenants under the agreements pertaining to the Home
Depot, Home Expo and X.X.'s stores shall have accepted occupancy of their
respective premises, commenced operations, provided all applicable
security and other deposits, and commenced paying rent under their
respective agreements, without the existence of any default with respect
to any obligation to pay rent, and (b) with respect to the balance of the
Center, there shall exist sufficient tenants meeting the following
requirements so that at least eighty percent (80%) of the gross leasable
square footage contemplated for the Millenia Center (including the
premises contemplated for the Home Depot, Home Expo and X.X.'s stores)
shall have been leased to tenants who shall have accepted occupancy of the
same, who shall have provided all applicable security and other deposits,
whose obligation to pay all rent under their respective leases shall have
commenced and who shall not be in default with respect to any obligation
under its lease to pay rent; (4) copies of the pertinent leases; (5)
tenant estoppel certificates for such leases (executed by the appropriate
tenants) reasonably satisfactory to Purchaser; and (6) copies of such
governmental permits and certificates of occupancy for such space from the
appropriate governmental authorities so as to permit occupancy and use of
such space.
(C) Purchaser shall have the right to inspect the
Millenia Center following delivery of the materials described in Section
16(d)(i)(A) above for the purpose of confirming such matters.
(D) The Millenia Closing further shall be subject to
each of the conditions set forth in Section 19(a) hereof insofar as they
relate to the Millenia Center, the Millenia Plaza Partnership, or the
Millenia Equity.
(ii) Seller shall apply its reasonable commercial efforts to
satisfy the conditions described in Section 16(d)(i) as expeditiously as
reasonably possible. The Millenia Closing shall occur thirty (30) days
after satisfaction of the conditions in Sections 16(d)(i)(A) and (B);
provided, however, that, subject to the satisfaction of such conditions,
Purchaser shall use its reasonable commercial efforts to close by December
31, 2001. If the Millenia Closing has not occurred by January 25, 2002,
then Purchaser shall have the right to terminate its obligation to
purchase the Millenia Equity (in which
22
case Purchaser shall have no further obligations to Seller with respect to
The Millenia Center or the Millenia Equity); or Purchaser can extend
Seller's right to satisfy the conditions in Section 16(d)(i) for
successive 60 day periods until June 30, 2002, at which time if such
conditions are not satisfied (or waived by Purchaser) either Seller
(provided that Seller is not then in default in its obligations hereunder)
or Purchaser can terminate this Contract as to the Millenia Equity on
notice to the other.
(iii) At the Millenia Closing, Purchaser shall pay to Seller
cash required to be delivered pursuant to Section 2(e).
(iv) Following the Millenia Closing and continuing through
December 31, 2002, Seller shall have a non-exclusive right to seek and to
propose to Purchaser potential additional leases for space within The
Millenia Center that is vacant as of the Millenia Closing. All such new
leases shall be subject to the approval of Purchaser, in its sole
discretion, provided that if Purchaser refuses to enter into any proposed
lease which qualifies as a Threshold Lease, then such lease shall be
treated as if it had been entered into for purposes of calculating the
Additional Purchase Price in Section 16(d)(v) below.
(v) Subsequent to the Millenia Closing, Purchaser shall pay to
Seller, in accordance with this Section 16(d)(v), an amount calculated
pursuant to this Section 16(d)(v) (the "Additional Purchase Price") if
warranted on account of any "New Lease" (as hereinafter defined) signed or
deemed signed between Closing and December 31, 2002. The Additional
Purchase Price shall be paid in addition to the Purchase Price previously
provided pursuant to Sections 1(b) and 2 in accordance with the provisions
of this Section 16(d)(v):
(A) If the Millenia Closing occurs prior to December 1,
2001, then on the later of January 10, 2002 or ten (10) days after the
Millenia Closing, Purchaser shall pay to Seller an Additional Purchase
Price amount calculated as follows:
Step 1: In accordance with the Millenia Formula,
compute the Millenia Amount as of the later of December 31, 2001 or
ten (10) days prior to the Millenia Closing, provided that for this
purpose: (1) the term "Millenia Leases" shall mean only those leases
qualifying as Millenia Leases as of the Millenia Closing and any New
Leases as of the later of December 31, 2001 or ten (10) days prior
to the Millenia Closing; and (2) for all leases qualifying as
Millenia Leases as of the Millenia Closing, the aggregate annual
gross income calculated for such leases pursuant to Step 1 of the
Millenia Formula shall not exceed the amount calculated for such
leases as of the Millenia Closing.
Step 2: Subtract the Millenia Amount calculated as
of the Millenia Closing.
(B) On January 10, 2003, Purchaser shall pay to Seller
an Additional Purchase Price amount calculated as follows:
23
Step 1: In accordance with the Millenia Formula,
compute the Millenia Amount as of December 31, 2002, provided that
for this purpose: (1) the term "Millenia Leases" shall mean only
those leases qualifying as Millenia Leases as of the Millenia
Closing and any New Leases as of December 31, 2002; (2) for all
leases qualifying as Millenia Leases as of the Millenia Closing, the
aggregate annual gross income calculated for such leases pursuant to
Step 1 of the Millenia Formula shall not exceed the amount
calculated for such leases as of the Millenia Closing; and (3) for
all New Leases that were in effect as of the later of December 31,
2001 or ten (10) days prior to the Millenia Closing, the aggregate
annual gross income calculated for such leases pursuant to Step 1 of
the Millenia Formula shall not exceed the amount calculated for such
leases as of the later of December 31, 2001 or ten (10) days prior
to the Millenia Closing pursuant to Step 1 of Section 16(d)(v)(A)
above and (4) for purposes of clause (i) of Step 3 of the Millenia
Formula, the parties shall use the actual annual operating expenses,
maintenance expenses, insurance costs and tax costs (adjusted to
reflect a full calendar year, if the Millenia Closing was subsequent
to January 1, 2002), rather than the projected annual operating
expenses, maintenance expenses, insurance costs and tax costs.
Step 2: Subtract the sum of (1) the Millenia
Amount calculated as of the Millenia Closing plus (2) the Additional
Purchase Price calculated pursuant to Section 16(d)(v)(A).
(C) For purposes of the foregoing calculations, the term
"New Lease" means, as of any date, a lease (1) of space that was vacant as
of the Millenia Closing, (2) which has been approved by Purchaser in
accordance with Section 16(d)(iv) and (3) for which, as of such date, the
tenant has accepted the subject space, has delivered a tenant estoppel
certificate reasonably satisfactory to Purchaser and any security or other
deposits required under the terms of its lease, has become obligated to
commence paying rent, and is not in default under any obligation to pay
rent under its lease. Seller need not be the procuring cause of any such
lease in order for such lease to constitute a "New Lease" for purposes of
this Section.
(vi) [***]
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
24
17. Representations and Warranties of Swerdlow and Seller. As a material
inducement to Purchaser to enter into this Contract and consummate the
transactions contemplated hereby, Swerdlow and Seller, jointly and severally,
hereby represents and warrants to Purchaser that, except as set forth on the
DISCLOSURE SCHEDULE, the following are true and correct:
(a) Organization, Standing and Power. Swerdlow and each Seller, and
each of the Partnerships is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or
organization, has all requisite power and authority as to the Partnerships, to
own, lease and operate its properties and to carry on its business as now being
conducted, and as to Swerdlow and each of the Sellers, to perform its
obligations under this Contract, and is duly qualified and in good standing to
transact business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification necessary,
except where the failure to be in good standing or so to qualify would not have
a Material Adverse Effect or would prevent or materially impair the consummation
by Swerdlow or Seller of the transactions contemplated hereby.
(b) Authority.
(i) Swerdlow and each Seller have all requisite power and
authority to enter into this Contract and each document, agreement and
instrument to be executed and delivered by Swerdlow or Seller pursuant to
this Contract and to carry out the transactions contemplated hereby or
thereby. The execution, delivery and performance of this Contract by
Swerdlow and each Seller has been duly authorized by all necessary action
on the part of Swerdlow and each Seller and no other action on the part of
Swerdlow or any Seller is required in connection herewith. This Contract
has been duly executed and delivered by Swerdlow and each Seller and
constitutes a valid and binding obligation of Swerdlow and each Seller
enforceable against it in accordance with its terms, subject to equitable
principles and applicable bankruptcy, fraudulent conveyance and similar
laws affecting creditors' rights and remedies generally. To the knowledge
of Swerdlow and each Seller, the execution and delivery of this Contract
does not, and the consummation by Swerdlow and each Seller of the
transactions contemplated hereby will not, conflict with or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or
acceleration of any material obligation or the loss of a material right or
benefit under, or the creation or imposition of any Lien on the Equity
Interests or the assets of the Partnerships (any such conflict, violation,
default, right of termination, cancellation, acceleration, loss, creation
or imposition, hereafter a "Violation"), pursuant to, (i) any provision of
the Articles of Incorporation, By-laws, partnership agreements, limited
liability company agreements or analogous instruments of governance or
formation of Swerdlow, Seller, the Partnerships or the General Partners
presently in effect (collectively, the "Governing Documents"), or (ii)
except as in the DISCLOSURE SCHEDULE, any loan or credit agreement, note,
mortgage, indenture, lease, or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, writ, order, decree,
statute, law, ordinance, rule or regulation applicable to Swerdlow,
Seller, the Partnerships or the General Partners, or their respective
properties or assets, except in the case of this clause
25
(ii), for any such Violation which insofar as reasonably can be foreseen
will not have a Material Adverse Effect.
(ii) To the knowledge of Swerdlow and Seller, and except for
the Preliminary Lender Estoppel and the Final Lender Estoppel from the
CMBS Lender and any other matters referenced in the DISCLOSURE SCHEDULE,
no consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Authority, or any other
person or entity, is required by or with respect to Swerdlow, Seller or
the Partnerships in connection with the execution and delivery by Swerdlow
and Seller of this Contract or the consummation by Swerdlow and Seller of
the transactions contemplated hereby (except for any such consents,
approvals, orders, authorizations, registrations, declarations or filing
which, if not made or obtained, will not have a Material Adverse Effect).
(c) Compliance with Applicable Laws. To the knowledge of Swerdlow
and Seller and except as set forth in the DISCLOSURE SCHEDULE, the Partnerships
(i) hold all permits, licenses, variances, exemptions, orders, authorizations
and approvals of all Governmental Authorities which are material to the
operation of their respective businesses or that are required for the ownership,
operation, maintenance and management of the Property (the "Property Permits"),
except for Property Permits the failure to obtain which insofar as reasonably
can be foreseen will not have a Material Adverse Effect, (ii) are in compliance
in all material respects with the terms of the Property Permits, and Swerdlow
and Seller are not aware of any facts which would cause Property Permits not to
be in full force and effect. The respective businesses of the Partnerships are
not being conducted in violation of any law, ordinance or regulation of any
Governmental Authority, except for violations which do not, and insofar as
reasonably can be foreseen will not, have a Material Adverse Effect. To the
knowledge of Swerdlow and Seller, except as set forth in the DISCLOSURE
SCHEDULE, as of the date of this Contract, no investigation or review by any
Governmental Authority with respect to the Partnerships is pending or threatened
other than those the outcome of which, insofar as reasonably can be foreseen,
will not have a Material Adverse Effect.
(d) Absence of Certain Changes of Events. To the knowledge of
Swerdlow and Seller, except as set forth in the DISCLOSURE SCHEDULE, and except
as contemplated by this Contract, the Partnerships have conducted their
respective businesses in the ordinary course and, there has not been (i) any
change in the significant accounting policies of the Partnerships since the
dates of the financial statements referenced on Exhibit I; or (ii) any
transaction, commitment, dispute or other event or condition (financial or
otherwise) of any character (whether or not in the ordinary course of business)
having, or which, insofar as reasonably can be foreseen, will have a Material
Adverse Effect.
(e) Taxes.
(i) Filing of Tax Returns. Each Partnership, each General
Partner and each of the owner(s) of each General Partner has timely filed
with the appropriate taxing authorities all Returns in respect of Taxes
required to be filed through the date hereof. The Returns and other
information filed is complete and accurate in all respects. Except
26
as specified in the DISCLOSURE SCHEDULE, none of the Partnerships or
General Partners have requested any extension of time within which to file
Returns in respect of any Taxes. The DISCLOSURE SCHEDULE sets forth each
jurisdiction, including each state and foreign country, in which the
Partnerships are subject to imposition of a Tax and the nature of each
such Tax. Each Partnership and each General Partner has delivered to
Purchaser complete and accurate copies of its federal, state and local
Returns for the years 1999 and 2000, if applicable.
(ii) Payment of Income Taxes. All Taxes of the Partnerships,
the General Partners and the owner(s) of the General Partners, in respect
of periods beginning before the date hereof, have been paid, or an
adequate reserve (excluding reserves for deferred Taxes to reflect timing
differences between book and taxable income) has been established
therefor, and neither the Partnerships nor the General Partners or their
owner(s) have any liability for Taxes in excess of the amounts so paid or
reserves so established. With respect to each Partnership and General
Partner, there are no Taxes for which such entity is or may become liable
that will apply to a period or portion thereof beginning the day after the
date of the closing pertaining directly or indirectly to such entity and
that are attributable to income earned or activities occurring on or
before such date. All Taxes which any Partnership or General Partner is
(or was) required by law to withhold or collect have been duly withheld or
collected, and have been timely paid over to the proper authorities, to
the extent due and payable. Each Partnership and General Partner has
complied in all material respects with all applicable laws, rules and
regulations relating to the payment and withholding of Taxes (including,
without limitation, withholding of Taxes pursuant to Sections 1441, 1442,
1445 and 1446 of the Code or similar provisions under any applicable state
and foreign laws) and has, within the time and the manner prescribed by
law, paid over to the proper governmental authorities all amounts so
withheld or has paid any applicable interest or penalties.
(iii) Audit History. Except as set forth in the DISCLOSURE
SCHEDULE, no material deficiencies for Taxes have been claimed, proposed
or assessed by any taxing or other governmental authority with respect to
any of the Partnerships or General Partners. Except as set forth in the
DISCLOSURE SCHEDULE, there are no pending or, to the best of Swerdlow's
and Seller's knowledge, threatened audits, investigations or claims for or
relating to any liability in respect of Taxes of any Partnership or
General Partner, and there are no matters under discussion with any
governmental authorities with respect to Taxes that is likely to result in
any material additional amount of Taxes of any Partnership or General
Partner. Audits of Returns for Taxes by the relevant taxing authorities
have been completed for each period set forth in the DISCLOSURE SCHEDULE
and, except as set forth in the DISCLOSURE SCHEDULE, none of the
Partnerships or General Partners has been notified that any taxing
authority intends to audit a return for any other period. Except as set
forth in the DISCLOSURE SCHEDULE, no extension of a statute of limitations
relating to Taxes is in effect with respect to any of the Partnerships or
General Partners. To the knowledge of Swerdlow and Seller, no power of
attorney with respect to any Taxes for which any Partnership or General
Partner may be liable is currently in force.
27
(iv) Tax Elections.
(A) All material elections with respect to Taxes
affecting the Partnerships as of the date hereof are set forth in the
DISCLOSURE SCHEDULE.
(B) None of the Partnerships: (i) has agreed, or is (or
will be by virtue of the transactions contemplated by this Agreement)
required, to make any adjustment under Section 481(a) of the Code by
reason of a change in accounting method or otherwise; or (ii) has made any
such election or is required to apply any of the foregoing rule under any
comparable state or local income tax provisions.
(C) None of the Partnerships has taken any positions on
its United States federal income tax Returns that would require disclosure
in order to avoid a substantial understatement penalty within the meaning
of Code Section 6662.
(v) Prior Affiliated Groups; Transferee Liability. Except as
set forth in the DISCLOSURE SCHEDULE, none of the General Partners has any
Liability for the Taxes of any Person under Treasury Regulations Section
1.1502-6 (or any similar provision of state, local or foreign law), as a
transferee or successor, by contract, or otherwise. None of the
Partnerships or General Partners has any liability pursuant to Section
6901 of the Code or otherwise under applicable law by virtue of any
transfer of an asset or assets to it.
(vi) Tax-Sharing Agreements. All tax-sharing agreements or
similar arrangements with respect to or involving any Partnership or
General Partner are set forth on the DISCLOSURE SCHEDULE.
(vii) Closing Agreements. No Partnership such entity has
requested or received any ruling from any taxing authority, or signed any
binding agreement with any taxing authority that would impact the amount
of Tax after the date of the closing pertaining directly or indirectly to
such entity.
(viii) FIRPTA and USRPHC. None of Seller or the Partnerships
is a "foreign person" as defined in section 1445(f)(3) of the Code.
(ix) Assets. There are no liens for Taxes (other than for
current Taxes not yet due and payable) on the assets of any of the
Partnerships or General Partners. None of the Partnerships has received a
notice of tax lien with respect to any of such assets. None of the assets
of the Partnerships: (i) directly or indirectly secures any debt the
interest on which is tax-exempt under Section 103(a) of the Code; (ii) is
tax-exempt bond financed property or tax-exempt use property within the
meaning of section 168 of the Code; or (iii) is required to be treated as
owned by another person pursuant to the so-called safe harbor lease
provisions of section 168(f)(8) of the Internal Revenue Code of 1954, as
amended and in effect immediately prior to the enactment of the Tax Reform
Act of 1986.
28
(x) Books and Records. Each Partnership has in its possession
all material books and records, including supporting documents, required
by applicable law regarding the collection and payment of all sales, goods
and services and use Taxes required to be collected and paid over by it
and regarding all exempt transactions, and each Partnership has maintained
all such books and records, including supporting documents, in accordance
with applicable law.
(xi) Ordinary Course. None of the Partnerships has incurred
any Liability for Taxes other than in the ordinary course of business.
(xii) Each Partnership is properly characterized as a
partnership for federal and all applicable state and local tax purposes.
(f) No Other Agreements to Sell the Property. Except as set forth in
the DISCLOSURE SCHEDULE, as of the date of this Contract neither the Seller nor
the Partnerships, nor any of their respective officers, directors, employees or
Affiliates, have entered into any agreement to sell any portion of the Equity
Interests or the Property to any other person or entity other than Purchaser.
(g) Title to Equity Interests. SREG is the sole legal and beneficial
owner of, and has good and marketable title to, all of the limited partnership
interests in the Partnerships, and SREG owns all of such limited partnership
interests free and clear of all Liens, Taxes, encumbrances and Liabilities other
than the GECC Pledge. Each General Partner listed on Exhibit A is the sole legal
and beneficial owners of, and has good and marketable title to, all of the
general partnership interests in the corresponding Partnership listed on Exhibit
A for said General Partner, and it owns own all of such general partnership
interests free and clear of all Liens, Taxes, encumbrances and Liabilities other
than the GECC Pledge. There is no authorized or outstanding subscription,
warrant, option, convertible security, or other right (contingent or other) to
purchase or otherwise acquire from a Partnership any equity securities or
partnership interests of such Partnership other than the GECC Pledge, there is
no commitment on the part of any Partnership to issue shares, subscriptions,
warrants, options, convertible securities, partnership interests or other such
rights, and no equity securities or partnership interests of any Partnership are
reserved for issuance for any such purpose. Except as set forth in the
DISCLOSURE SCHEDULE, no Partnership has any obligation (contingent or other) to
purchase, redeem or otherwise acquire any of its equity securities. Except for
this Agreement, the GECC Pledge and as set forth in the DISCLOSURE SCHEDULE,
there is no voting trust or agreement, stockholders' agreement, pledge
agreement, buy-sell agreement, right of first refusal, preemptive right or proxy
relating to any securities of any Partnership.
(h) Governing Documents and Historic Operations. A correct and
complete set of the Governing Documents, in each case as amended or restated to
the date hereof, has been delivered to Purchaser and are listed on Exhibit G
hereto. Neither Seller, nor the Partnerships, is in violation of any material
provisions of the Governing Documents. Since the date of its incorporation or
formation, as applicable, no Partnership has engaged in any business or
operations other than the ownership of the corresponding Center(s) listed on
Exhibit A for said Partnership.
29
(i) Title and Liabilities. To the knowledge of Swerdlow and Seller:
(i) each Partnership owns all material patents, trademarks, copyrights,
tradenames and other intellectual property rights required in order for such
Partnership to continue to operate, in the Ordinary Course of Business and in
the manner currently occupied, the corresponding Center(s) listed for said
Partnership on Exhibit A; (ii) there are no Liens, asserted or known Liabilities
charges, unpaid bills or obligations that relate to the Property that are not
specifically listed, on a Center by Center basis, in the DISCLOSURE SCHEDULE,
except those that will be borne by Seller (in accordance with Section 14) at the
closings.
(j) Insurance. To the knowledge of Swerdlow and Seller, except as
set forth in the DISCLOSURE SCHEDULE, (i) the Property is insured to the extent
disclosed on Exhibit H and all such insurance policies and arrangements are
disclosed (on a Center by Center basis) on said exhibit; (ii) Swerdlow and
Seller are not aware of any facts which would cause such insurance policies not
to be in full force and effect through the respective closings contemplated
hereby, all premiums with respect thereto to the extent due are currently paid,
and neither Seller nor the Partnerships have received any notice of, or are
otherwise aware of, any violation in any material respect of any of the terms
thereof; and (iii) said insurance is sufficient for compliance by the
Partnerships in all material respects with all material requirements of all
material agreements and leases to which the Partnerships are a party, the
failure of which will not result in a Material Adverse Effect.
(k) Construction and Condition of Improvements. Except as set forth
on the DISCLOSURE SCHEDULE, Swerdlow and Seller are not aware of any violations
relating to the construction of the Improvements or of violations of applicable
governmental codes, laws, ordinances, rules, and regulations which as reasonably
can be foreseen will have a Material Adverse Effect as to such Center. To the
knowledge of Swerdlow and Seller, and except (i) as set forth in the DISCLOSURE
SCHEDULE, and (ii) for matters which as far as reasonably can be foreseen will
not have a Material Adverse Effect, there are no latent defects in any of the
structural components, foundations or roofs of the Improvements.
(l) Zoning. To the knowledge of Swerdlow and Seller and except as
set forth in the DISCLOSURE SCHEDULE: (i) no conditional use permit has been
used by any governmental authority with respect to any Center; and (ii) as of
the date hereof there are no circumstances existing at any Center which Seller
knows to constitute a violation of any zoning, building, health, safety,
disability, environmental, pollution control, fire or similar law, ordinance,
order, directive or regulation respecting the Property or any part thereof,
which as reasonably can be foreseen will have a Material Adverse Effect as to
such Center.
(m) Litigation and Condemnation. Except as disclosed in the
DISCLOSURE SCHEDULE: (i) Swerdlow and Seller have received no actual notice of,
and Swerdlow and Seller are not otherwise aware of, any existing, pending or
threatened claims, actions, suits, arbitrations or proceedings (including
condemnation proceedings or sales in lieu thereof) affecting or with respect to
any aspect of any part of the Property or, the Partnerships; and (ii) Swerdlow
and Seller have received no actual notice of the desire of any Governmental
Authority or any other entity to take or use the Property or any part thereof.
30
(n) Material Agreements. Except as listed in the DISCLOSURE
SCHEDULE, there are no Material Agreements. To the knowledge of Swerdlow and
Seller, except as otherwise set forth in the DISCLOSURE SCHEDULE (i) each
Material Agreement is valid, binding and in full force and effect, and is
enforceable by each Partnership that is a party thereto in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally, and general equitable principles
(whether considered in a proceeding in equity or at law), and (ii) each
Partnership that is a party to a Material Agreement has performed in all
material respects all the material obligations required to be performed by it to
date and is not in default under any Material Agreement to which it is a party.
To the knowledge of Swerdlow and Seller, except as set forth in the DISCLOSURE
SCHEDULE, there are no service or other contracts with any person or entity
relating to the maintenance or management of any Center which cannot be
terminated upon thirty (30) days' notice by the Partnership owning that Center.
(o) Assessments. Except as set forth in the DISCLOSURE SCHEDULE,
Swerdlow and Seller are not aware of any existing, pending or threatened
improvements, Liens, or special assessments to be made against the Property by
any Governmental Authority.
(p) Financial Statements; Books and Records. Seller has delivered to
Purchaser each of the financial statements set forth on Exhibit I. Each of such
financial statements: (i) is in accord with the respective books and records of
the Partnerships and (ii) has been prepared in accordance with GAAP applied
consistently during the periods covered thereby, and fairly present the
financial condition and consolidated results of operations for the respective
periods covered thereby. To the knowledge of Swerdlow and Seller, all of the
books and records relating to the Partnerships, and the Property given to
Purchaser by Seller fairly, completely and accurately reflect in all material
respects the business and operations of the Partnerships and the ownership,
operation and occupancy of the Property and all income received and expenses
incurred by the Partnerships in connection therewith.
(q) Leases. The rent roll attached hereto as Exhibit F (the "Rent
Roll") is a true, correct and complete list of the Leases and the Tenants as of
the date of the Rent Roll, including, in all material respects, the description,
by agreement and document name and date, of each Lease, together with any
amendments, assignments and other material documents with respect thereto. To
the knowledge of Swerdlow and Seller, as of the date of this Contract; (i) all
of the information on the Rent Roll, including the description of the space, the
rent and other charges payable by Tenants, the term and options to renew, and
the Security Deposits, also is complete, true and correct in all material
respects; (ii) each of the Leases is in full force and effect and there is no
material monetary or material non-monetary default under any Lease by the tenant
thereunder or by Landlord for which notice has been given, nor, to the knowledge
of Swerdlow or Seller, has any event occurred which with the giving of notice or
the passage of time or both would result in a default thereunder by either the
landlord or the tenant. Except as set forth on the DISCLOSURE SCHEDULE, no
commission, compensation or other amount is now, or hereafter may become,
payable to any broker or other agent under any agreement or understanding in
connection with any Lease or the renewal thereof, or any other options
thereunder. Except as set forth on the DISCLOSURE SCHEDULE, Seller has received
no
31
written request by any Tenants to terminate their Lease or to limit, amend or
alter their Lease or its use or occupancy.
(r) Construction Liens. To the knowledge of Swerdlow and Seller,
except as set forth on the DISCLOSURE SCHEDULE: (i) there are no fees, dues or
other charges which are due, owing or unpaid, except for any such fees, dues or
charges incurred in the Ordinary Course of Business in connection with the
construction of or any repairs to any Center and which shall be paid by Seller
at or before a closing with respect to such Center(or borne by Seller pursuant
to Section 14); and (ii) neither Swerdlow nor Seller has received notice of, or
is otherwise aware of, a pending or threatened claim which may or could ripen
with the passage of time into a mechanic's lien upon a Center as the result of
any contract, agreement or work performed at a Center at the direction of the
Partnerships which as reasonably can be foreseen would have a Material Adverse
Effect as to such Center.
(s) Environmental Matters. To the knowledge of Seller and except as
set forth in the DISCLOSURE SCHEDULE, as of the date hereof: (i) there is no
violation at any Center of any Environmental Law, other than violations which
insofar as reasonably can be anticipated would not have a Material Adverse
Effect; (ii) no notice, demand, claim or other communication has been given to
or served on Swerdlow, Seller or the Partnerships from any entity, Governmental
Authority or individual claiming any violation of any of the Environmental Laws
or demanding payment, contribution, indemnification, remedial action, removal
action or any other action with respect to any actual or alleged environmental
damage or injury to persons, property or natural resources applicable to a
Center which have not been complied with; (iii) no above ground or underground
storage tanks, vessels and related equipment and containers are or ever were
located on or below any Center; (iv) the soil, surface water and ground water
of, under, on or around the Property are free from Hazardous Materials; (v) the
Property has never been used for or in connection with the manufacture,
refinement, treatment, storage, generation, transport or hauling of any
Hazardous Material in excess of levels permitted by applicable Environmental
Laws, nor has the Property been used by Seller or the Partnership for or in
connection with the disposal of any Hazardous Material in violation of
applicable laws; (vi) no asbestos, PCB's (as hereinafter defined) ACM (as
hereinafter defined) or PACM (as hereinafter defined) are installed, used,
incorporated into or disposed of on the Property by Seller or the Partnerships;
and (vii) no investigation, administrative order, administrative order by
consent, consent order, agreement, litigation or settlement is proposed or in
existence or threatened with any Partnership, with respect to or arising from
the presence of any Hazardous Material or the transport of any Hazardous
Material with respect to the Property.
(t) Utilities. To the knowledge of Swerdlow and Seller, except as
set forth in the DISCLOSURE SCHEDULE each Center has access rights and is
connected to water, sanitary sewer, storm sewer, gas, electricity, oil,
telephone, cable and other utilities reasonably required in any material respect
for the ownership, operation and occupancy of the Center as currently operated.
(v) Integrity of Documents. To the knowledge of Swerdlow and Seller,
except as set forth in the DISCLOSURE SCHEDULE: (i) the copies of all documents
delivered by Seller to Purchaser pursuant to this Contract are complete and
accurate in all material respects;
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(ii) the information contained in the attached exhibits and schedules is
complete and accurate in all material respects; (iii) the representations,
warranties and statements contained in this Contract and in the exhibits and
schedules hereto do not contain any untrue statement of a material fact, and,
when taken together, do not omit to state a material fact required to be stated
therein or necessary in order to make such representations, warranties or
statements not misleading in any material respect in light of the circumstances
under which they were made, and there are no facts which presently or are
reasonably likely in the future to have a Material Adverse Effect which have not
been specifically disclosed herein or in the DISCLOSURE SCHEDULE.
(w) ERISA Matters. No Partnership maintains, or has ever maintained
a Benefit Plan or is, has been, or has ever been deemed to be an ERISA Affiliate
with respect to a Benefit Plan. In addition, no Partnership contributes to or is
required to contribute to or has contributed to or been required to contribute
to any Benefit Plan. No Partnership has, or in the past had, or is, has been, or
has ever been deemed to have any liability or obligations with respect to any
Benefit Plan. No Partnership has engaged in, or is an ERISA Affiliate of an
entity that has engaged in, a transaction described in Section 4069 of ERISA. No
Partnership has engaged in, or is an ERISA Affiliate of an entity that has
engaged in, a transaction described in Section 4212(c) of ERISA.
(x) None of the Partnerships employs, or has ever employed, an
"employee" as defined in Section 3121(d) of the Code, or a "leased employee" as
defined in Section 414(n) of the Code, or is, or has ever been, a party or
signatory to a collective bargaining agreement with any collective bargaining
representative.
(y) Asbestos Standards. To the knowledge of Swerdlow and Seller,
except as set forth in the DISCLOSURE SCHEDULE, Seller has complied in all
material requests with all applicable requirements of 29 CFR ss.ss.1910.1001 and
1926.1101 (the "Asbestos Standards"), including, but not limited to, (i)
delivery to Purchaser of all material information in Seller's possession
regarding the presence, location and quantity of asbestos containing material
("ACM") and presumed asbestos containing material ("PACM"), as such terms are
defined in the Asbestos Standards; (ii) providing notice of the presence and
location of any ACM or PACM to all Tenants with employees; and (iii) providing
notice of the presence and location of any ACM and PACM to all housekeeping and
janitorial employees who may come into contact with any ACM or PACM in the
course of housekeeping or janitorial activities.
(z) No Partnership has any subsidiaries.
(aa) As of the date hereof, Xxxxxx Xxxxx is the property manager for
all of the Centers (other than Millenia Center, which at present does not have a
property manager).
18. Representations and Warranties of Purchaser.
(a) As a material inducement to Seller to enter into this Contract
and consummate the transactions contemplated hereby and except as set forth on
the DISCLOSURE SCHEDULE, Purchaser hereby makes to Seller the following
representations and warranties:
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(i) Organization, Standing and Power. Each of the Purchaser
and its Subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation or
organization, has all requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, and is duly
qualified and in good standing to transact business in each jurisdiction in
which the nature of its business or the ownership or leasing of its properties
makes such qualification necessary, except where the failure to be in good
standing or so to qualify would not have a Material Adverse Effect or would
prevent or materially impair the consummation by the Purchaser of the
transactions contemplated hereby.
(ii) Authority.
(A) The Purchaser has all requisite corporate power and
authority to enter into this Contract and to perform its obligations
hereunder. The execution, delivery and performance of this Contract by
Purchaser and of all documents to be executed by Purchaser hereunder has
been duly authorized by all necessary corporate action on the part of the
Purchaser. This Contract has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms, subject to equitable
principles and applicable bankruptcy, fraudulent conveyance and similar
laws affecting creditors' rights and remedies generally, subject to the
receipt of (1) the consent of Warburg, Xxxxxx Equity Partners, L.P.
("Warburg") which is required under that certain Securities Purchase
Agreement dated as of March 21, 2001 and certain of its affiliates; and
(2) the consent of Excel Legacy Corporation ("Excel") which is required
under that certain Agreement and Plan of Merger dated as of March 21, 2001
among Purchaser, Excel and PEI Merger Sub, Inc. Purchaser covenants that
it shall apply reasonable commercial efforts to obtain the consents
described in clauses (1) and (2) of the immediately preceding sentence on
or before the Contingency Date. If Purchaser does not terminate, on or
before the Contingency Date and in accordance with Section 8, its
obligation to effect the closings contemplated hereby, then Purchaser
shall be deemed to have represented and warranted to Seller, as of the
Contingency Date, that such consents have been obtained.
(B) To the knowledge of Purchaser the execution and
delivery of this Contract does not, and the consummation by the Purchaser
of the transactions contemplated hereby will not, result in any violation
of (i) any provision of the Articles of Incorporation or By-laws or
analogous instruments of governance or formation of the Purchaser or any
of its Subsidiaries presently in effect, or (ii) any loan or credit
agreement, note, mortgage, indenture, lease, or other agreement,
obligation, instrument, permit, concession, franchise, license, judgment,
writ, order, decree, statute, law, ordinance, rule or regulation
applicable to the Purchaser or any of its Subsidiaries, or their
respective properties or assets, except in the case of this clause (ii),
for any such violation which insofar as reasonably can be foreseen would
not have a Material Adverse Effect.
34
(C) Except for filings with the Nasdaq National Market
(or any other national securities exchange), no consent, approval, order
or authorization of, or registration, declaration or filing with, any
Governmental Authority is required by or with respect to the Purchaser or
any of its Subsidiaries in connection with the execution and delivery by
the Purchaser of this Contract or the consummation by the Purchaser of the
transactions contemplated hereby, the failure to obtain which insofar as
reasonably can be foreseen would have a Material Adverse Effect.
19. Conditions Precedent to Closing.
(a) Conditions to Purchaser's Obligation to Close. In addition to
the conditions specified elsewhere in this Contract, Purchaser's obligation to
effect the respective closings contemplated by this Contract is subject in each
case to the fulfillment of each of the following conditions (in each case to the
extent pertaining to said Closing and/or the Relevant Centers):
(i) there shall exist on the closing date no pending Order
prohibiting, enjoining or restraining Seller from consummating the
transactions contemplated hereunder with respect to such closing;
(ii) no Material Adverse Change shall have occurred since the
date hereof and remain uncured or unremedied;
(iii) Omitted
(iv) Seller and the Partnerships shall have performed in all
material respects their covenants and agreements contained in this
Contract required to be performed at or prior to the closing date, and the
representations and warranties of Swerdlow or Seller contained in this
Contract that are not qualified as to a Material Adverse Effect shall be
true and correct in all material respects, and any of such representations
and warranties that are so qualified shall be true and correct except
where the failure to be so true and correct individually or in the
aggregate would not have a Material Adverse Effect, in each case, as of
the date of such closing as if made as of such date (except to the extent
that the representation or warranty is expressly limited by its terms to
another date and except, in the case of the representations and warranties
set forth in Section 17(s), that clauses (i) through (vii) thereof shall
be deemed modified to reflect any matters set forth in the Environmental
and Engineering Reports);
(v) all permits, consents, approvals and waivers from
Governmental Authorities and other persons or entities (including the
Lenders) necessary to the consummation of the transactions contemplated
hereby with respect to such closing shall have been obtained;
(vi) Seller shall have delivered to Purchaser an opinion of
Xxxxxxxxx Xxxxxxx, LLP, counsel to Seller, dated as of the closing date,
in form reasonably satisfactory to Purchaser as to the existence, power
and authorization of Swerdlow and Seller to execute, deliver and perform
their obligations under this Agreement;
35
(vii) All Transfer Taxes if any arising out of or with respect
to the Closing shall have been paid by the Seller or Seller shall have
arranged for payment to be made at Closing. Seller shall have provided
Purchaser with (i) all forms, certificates and/or other instruments
required to pay the Transfer Taxes, together with evidence satisfactory to
Purchaser that such Transfer Taxes have been or will be paid by Seller,
and (ii) a clearance certificate or similar document(s) which may be
required by any state taxing authority to relieve Purchaser of any
obligation to withhold any portion of the payments to Seller pursuant to
this Agreement;
(viii) There shall not have been any federal legislative or
regulatory change that could cause Purchaser to cease to qualify (either
prior to or upon consummation of the transactions contemplated hereby) as
a REIT for federal or state income tax purposes;
(ix) Seller shall have delivered each of the items to be
delivered by Seller pursuant to Section 20;
(x) In the case of the Hollywood Closing, Purchaser's
obligations to close shall be further subject to the conditions set forth
in Section 13 (to the extent applicable to the Hollywood Center); and
(xi) In the case of the Millenia Closing, Purchaser's
obligations to close shall be further subject to the conditions set forth
in Section 13 (to the extent applicable to the Millenia Center).
(b) Conditions to Seller's Obligation to Close. In addition to the
conditions specified elsewhere in this Contract, Seller's obligation to effect
the respective closings contemplated by this Contract is subject in each case to
the fulfillment of each of the following conditions (in each case to the extent
pertaining to said closing and/or Relevant Centers):
(i) there shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Purchaser from consummating the
transactions contemplated hereunder;
(ii) Purchaser shall have paid the amount due to Seller as set
forth in Section 20;
(iii) Purchaser shall have delivered each of the items to be
delivered by Purchaser pursuant to Section 2 hereof;
(iv) Purchaser and its Subsidiaries shall have performed in
all material respects their covenants and agreements contained in this
Contract required to be performed at or prior to the closing date and the
representations and warranties of Purchaser and its Subsidiaries contained
in this Contract that are qualified as to a Material Adverse Effect shall
be true and correct in all respects and any of such representations and
warranties that are not so qualified shall be true and correct except
where the failure to be so true and correct individually or in the
aggregate would not have a Material
36
Adverse Effect, in each case, as of the closing date as if made as of the
closing date (except to the extent that the representation or warranty is
expressly limited by its terms to another date);
(v) all permits, consents, approvals and waivers from
Governmental Authorities and other parties (excluding (a) any lenders with
respect to the CMBS Debt, if such lender shall have provided the
Preliminary Lender Estoppel and (b) any other lenders with security
interests in the Relevant Centers or the related Equity Interests, it
being understood that in each case it shall be Seller's responsibility to
obtain said permits, consents, approvals or waivers) necessary to the
consummation of the transactions contemplated hereby shall have been
obtained; and
(vi) if Purchaser elects to pay a portion of the Purchase
Price through delivery of the PM Note, Purchaser shall have delivered to
Seller an opinion of counsel to Purchaser in form reasonably satisfactory
to Seller as to the existence, power and authorization of Purchaser to
execute and deliver the PM Note and the Security Agreement, and as the
enforceability of said documents against Purchaser (subject to customary
exceptions, including the effects of bankruptcy and equitable principles).
20. Items to be Delivered at Closing.
(a) At each closing, Seller shall deliver to Purchaser each of the
following (in each case to the extent applicable to the Relevant Center for the
closing):
(i) Executed and acknowledged counterparts of the Assignment
of Partnership Interests conveying ownership to all of the Equity
Interests within each of the Partnerships owning any of the Relevant
Centers, substantially in the form of Exhibit J.
(ii) A certificate from each Seller that it is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Code.
(iii) With respect to each Partnership owning any of the
Relevant Centers, in each case as listed on Exhibit A, searches, in the
names of Seller and the Partnership of the Uniform Commercial Code records
for the State of Florida and any other state pursuant to whose laws such
entities have been formed or are existing. Such searches shall indicate
that (a) as of the date of such searches (which date shall be no more than
15 days preceding the relevant closing), the Equity Interests attributable
to the Relevant Centers were not the subject of any filed financing
statements other than financing statement which will be terminated and
released in connection with the closing and (b) the assets of the General
Partners and the Partnerships were not subject to any filed financing
statements other than financing statements (1) evidencing Permitted Title
Exceptions with respect to such Relevant Centers or (2) which will be
terminated and released in connection with the closing, or granted to
Seller to evidence the Security Agreement for the PM Note.
(iv) With respect to each Relevant Center, a fully paid ALTA
owner's policy of title insurance or marked up commitment signed and
redated as of the closing,
37
insuring the relevant Partnership as owner of its respective Center free
and clear of any Liens other than Permitted Title Exceptions with respect
to said Center and containing the endorsements referenced in Exhibit C
attached hereto (to the extent that the same are issuable under applicable
Florida law), each title insurance policy to be issued by the Title
Company through its Fort Lauderdale Branch, in an aggregate amount equal
to the Purchase Price allocable to that Center and otherwise substantially
in the form of the owners' policies of title insurance contained in the
Preliminary Inspection Materials.
(v) A Closing certificate from Swerdlow and each Seller in the
form of Exhibit L (the "Seller's Closing Title Certificate").
(vi) In the case of the CMBS Closing: (A) a Final Lender
Estoppel with respect to the CMBS Debt which shall be dated no earlier
than fifteen (15) days prior to said closing and shall confirm that the
outstanding indebtedness under the CMBS Debt shall be no greater than the
CMBS Maximum Loan Amount as of the CMBS Closing (it being understood,
however, that if the Final Lender Estoppel instead indicates that the
outstanding indebtedness under the CMBS Debt shall be greater than the
CMBS Maximum Loan Amount as of the CMBS Closing Date, then Purchaser shall
have the right, by written notice to Seller, to elect to proceed with the
CMBS Closing with no adjustment in the applicable Purchase Price, it being
agreed, however, that in such event the cash portion of the Purchase Price
payable at the CMBS Closing shall be reduced by an amount equal to the
excess of the outstanding indebtedness under the CMBS Debt as of the CMBS
Closing Date over the CMBS Maximum Loan Amount); and (B) release of the
GECC Pledge and guarantors.
(vii) With respect to each Relevant Center, each of the
following:
(A) Originals of all Leases (and the related Tenant
Estoppel Certificate) pertaining to space within the Relevant Centers,
and, to the extent in Seller's possession, any subleases relating thereto,
including all of the original amendments and guarantees relating to such
Leases, together with complete copies of all landlord-to-landlord and
tenant-to-tenant assignments of such Leases up to and including the
closing date, together with any non-monetary security deposits, advance
rentals or other collateral received under such Leases to the extent in
Seller's possession;
(B) Copies of all material files in Seller's possession
or control pertaining to the Leases of space within the Relevant Centers,
the management, maintenance or operation of the Relevant Centers and any
books and records and any other files which are used in connection with
the ownership, operation, management, maintenance or occupancy of the
Relevant Centers (including any warranties pertaining to any improvements
at the Centers (e.g., roof warranties)); and
(C) All keys, combinations to locks and/or passwords,
codes or instructions for other security devices related to the Relevant
Centers in Seller's possession.
38
(viii) With respect to the Millenia Closing, a recordable
restriction or other agreement in form and substance reasonably
satisfactory to Seller and Purchaser which shall provide in perpetuity
that no building or other improvement which may block visibility to the
Millenia Center may be placed above ground in the area shown as "No Build
Area" on the Site Plan with respect to the real property adjacent to
Millenia Center attached hereto as Exhibit N (the "Millenia Adjacent
Property"), other than those consistent with the operation, striping,
paving, lighting and landscaping of parking areas thereon, said approval
not to be unreasonably withheld.
(ix) Resolutions (or other evidence of action reasonably
satisfactory to Purchaser) of Swerdlow and each Seller authorizing the
transactions effected at such closing.
(b) At each closing:
(i) Purchaser shall make the applicable cash payment to Seller
required by Section 2. Purchaser further shall execute and deliver the PM
Note and the relevant Security Documents, to the extent called for by
Section 2(c). Purchaser further shall deliver to Seller to the extent
applicable at closing the executed Brainfood Note, CMBS Vacancy Note, and
Hollywood Vacancy Note to the extent contemplated hereby, and executed and
acknowledged counterparts of the applicable Assignments of Partnership
Interests referred to in Section 20(a).
(ii) Purchaser shall deliver a resolution of Purchaser
authorizing the transactions.
21. Covenants.
(a) Pre-Closing Covenants of Seller. With respect to the Relevant
Centers for each closing contemplated by this Contract, Seller, jointly and
severally, covenants that during the period from the Date of this Contract
through the consummation of such closing (or the earlier termination, in
accordance with the provisions of this Contract, of Purchaser's obligation to
effect said closing), Seller shall comply, and Swerdlow and Seller shall cause
each corresponding Partnership listed on Exhibit A with respect to said Relevant
Centers to comply, with the agreements set forth in this Section 21(a) (except
to the extent that Purchaser otherwise shall consent in writing):
(i) Continuity of Operations. Seller shall cause the
Partnerships to carry on the business of the Partnerships substantially in
the same manner as the Partnerships have heretofore conducted such
business, shall not permit said Partnerships to engage in any other
business or activity, and shall not introduce any new method of
management, operation or accounting with respect to the Relevant Centers,
except that the foregoing shall not preclude actions prior to the fifth
day preceding the Contingency Date so long as such actions are not
inconsistent in any material respect with the transactions contemplated by
this Contract and Seller provides Purchaser with written notice of such
actions at least 5 days prior to the Contingency Date.
39
(ii) Maintenance. Seller shall cause the Partnerships to
maintain the Relevant Centers substantially in their present condition,
subject to normal wear and tear (from the last required repair) or damage
or loss due to casualty or condemnation, and, without limiting the
foregoing, Seller shall cause said Partnerships to not diminish the
quality or quantity of maintenance and upkeep services heretofore provided
to the Relevant Centers in any material respect.
(iii) Existing Leases. Seller shall not, and Seller shall not
permit any Partnership to, commit any intentional default by it under any
of the Leases of space within the Relevant Centers. Seller shall not, and
Seller shall not permit any Partnership to, make any new leases or any
amendments to (including any extensions to or renewals of) or cancel any
of the existing Leases of space within the Relevant Centers, without the
prior written consent of Purchaser in each instance, which consent shall
not be unreasonably withheld or delayed.
(iv) Existing Loans and Encumbrances. At or before each
closing, Seller shall pay off, in full, any and all loans secured by any
Relevant Center or the Equity Interests attributable to the Relevant
Centers, except for loans secured by Liens which, as of said closing,
constitute Permitted Title Exceptions with respect to the Relevant
Centers.
(v) New Contracts, Encumbrances, etc. Seller shall not permit
any Partnership to grant or permit any new encumbrances or Liens on or
about the Relevant Centers without the prior written consent of Purchaser
in each instance, which consent shall not be unreasonably upheld. Seller
further shall not permit any Partnership to enter into any other new
Contracts pertaining to any Center except for (1) leases otherwise
permitted hereunder and (2) service contracts entered in the Ordinary
Course of Business and which are terminable at or before the closing or
upon 30 days notice. Seller shall not permit any said Partnership to
undertake or omit to undertake any other act which may have a Materially
Adverse Effect on a Relevant Center.
(vi) Notices. Seller shall cause the Partnership to promptly
deliver to Purchaser copies of, all notices of violations of laws,
ordinances, orders, condemnations, directives, regulations or requirements
issued by, filed by or served by any Governmental Authority against or
affecting any said Partnership or any part or aspect of any Relevant
Centers received by Seller prior to the date herewith, and at Seller's
expense, Seller shall cause the Partnerships to comply in all material
respects with all such noted violations issued prior to the Contingency
Date. In addition, Seller shall notify Purchaser promptly of any casualty
affecting a Relevant Center occurring prior to the closing and Seller
shall cause the Partnerships to promptly commence to restore such Relevant
Center to at least the condition that existed immediately prior to such
casualty in the Ordinary Course of Business and consistent with the
requirements of its insurance carrier and the receipt of insurance
proceeds therefor, and requirements of applicable mortgages.
(vii) Transfer. Except as permitted hereunder, Seller will
not, and Seller shall not permit any Partnership to, sell, assign, convey,
lease, mortgage, pledge or
40
transfer the Equity Interests or any other interests in the Relevant
Centers to any other person, or to create any Lien or encumbrance on the
Equity Interests or the Relevant Centers.
(viii) Loan Agreement. Notwithstanding anything contained in
this Contract, it is expressly understood that (A) Seller and the
Partnerships shall be permitted to take any action with respect to any
Partnership and any Relevant Center between the date hereof and the date
of the closing with respect to such Relevant Center that Seller or said
Partnerships are obligated to take under any of the Loan Documents, the
Leases or any other agreement by which said Partnerships or any of the
Relevant Centers may be bound, without such action constituting a default
under this Contract (provided that if such action otherwise would violate
a covenant of Seller set forth herein, then Seller promptly shall provide
Purchaser with notice of such action), and (B) Seller and said
Partnerships shall not be required by this Contract to take (or omit to
take) any action which in either case would constitute a default under any
of the Loan Documents, the Leases or any other agreement by which the
Partnerships or any of the Relevant Centers may be bound.
(ix) Insurance. Seller shall cause the Partnership to have in
effect and maintain at all times up to the Closing Date for the Relevant
Centers the insurance substantially of the kind, in the amount and with
the insurers set forth on Exhibit F or equivalent insurance.
(x) Omitted
(xi) Issuance of Securities. Seller shall not permit any
Partnership to, issue, deliver or sell, or authorize or propose the
issuance, delivery or sale of, any equity securities of the Partnership
any voting debt securities of the Partnership or any securities or options
convertible into, or exchangeable or exercisable for, any such equity
securities or voting debt securities.
(xii) Governing Documents. Seller shall not permit any
Partnership to, amend or restate (or propose to amend or restate) the
Governing Documents applicable to the Partnership.
(xiii) No Acquisitions. Seller shall not permit any
Partnership to, acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial equity interest in or a substantial
portion of the assets of, or by any other manner, any business or
corporation, partnership, limited liability entity, association or other
business organization or division thereof, or otherwise acquire or agree
to acquire any assets, in each case, which are material, individually or
in the aggregate, to the Partnership, other than in the Ordinary Course of
Business or, in the case of the Partnership owning Millenia Center, the
improvement of Millenia Center as contemplated hereby.
(xiv) No Dispositions. Seller shall not permit any or
Partnership to, sell, lease, encumber or otherwise
41
dispose of or agree to sell, lease, encumber or otherwise dispose of, any
of its assets, which are material, individually or in the aggregate to
Partnership except as provided herein.
(xv) Indebtedness. Seller shall not permit any Partnership to,
incur, assume or guarantee any indebtedness for borrowed money.
(xvi) Other Actions; Notice of Inaccuracies in Representations
and Warranties. Neither Seller, nor the Partnerships shall take any action
that would or reasonably would be likely to result in any of its
representations and warranties set forth in this Contract being untrue in
any material respect as of the date made (to the extent so limited) or any
of the conditions set forth herein not being satisfied. Further, should
Seller learn that any of the representations or warranties of Seller set
forth herein are inaccurate in any material respect (as of the date made
or thereafter), Seller promptly shall provide Purchaser with written
notice describing the inaccuracy.
(xvii) Certain Other Actions.
(A) Seller shall cause the Partnerships to duly and
timely file all reports, federal, state and local Tax Returns and other
documents required to be filed with federal, state, local and other
authorities, subject to extensions permitted by applicable law.
(B) Seller shall promptly notify Purchaser of any
action, suit, proceeding, claim or audit pending against or with respect
to the Partnerships in respect of any federal, state or local Taxes where
there is a reasonable probability of a determination or decision by a
relevant authority which would materially increase the tax Liabilities of
such party.
(C) Seller shall not permit the Partnerships to make any
changes in their accounting methods or policies except as required by law
or generally accepted accounting principles.
(D) Seller shall not permit the Partnerships to take any
action, or fail to take any action, if such action or failure to act could
cause Swerdlow Real Estate Group, Inc. ("Swerdlow") to fail to qualify as
a REIT.
(E) Seller shall not permit the Partnerships to enter
into any letter of intent or contract for the sale of any Equity Interests
or the Property.
(b) Pre-Closing Covenants of the Purchaser. Until the date upon
which each of the closings has occurred or Purchaser has been released from any
obligation hereunder to effect any further closings:
(i) neither the Purchaser nor any of its Subsidiaries shall
take any action that would or reasonably would be likely to result in any
of its representations and warranties set forth in this Contract being
untrue as of the date made (to the extent so limited) or any of the
conditions set forth herein not being satisfied.
42
(ii) Purchaser shall cooperate promptly and in good faith with
Seller in connection with any obligation, which Seller may have hereunder
to obtain the Preliminary Lender Estoppels and the Final Lender Estoppels
(it being understood, however, that Purchaser shall not be obligated to
incur any financial obligations with respect thereto).
Notwithstanding anything to the contrary set forth in this Agreement, nothing in
this Agreement shall prohibit Purchaser or Seller from taking, any action at any
time or from time to time that in the reasonable judgment of the Board of
Directors of Purchaser or Seller, as applicable, upon advice of counsel, is
legally necessary or desirable for Purchaser or Swerdlow to maintain its
qualification as a REIT for federal and state income tax purposes or to
eliminate or reduce income or excise taxes under Sections 856-860 and 4981 of
the Code (and similar provisions of state or local tax law), including without
limitation, making dividend or distribution payments to stockholders of
Purchaser or Seller.
(c) Covenants with Respect to Certain Tax Matters.
(i) Tax Sharing Agreements. All tax-sharing agreements or
similar arrangements with respect to or involving any Partnership or
General Partner shall be terminated prior to the first to occur of the
Millenia Closing, the CMBS Closing or the Hollywood Closing (the "First
Closing"), and, after the First Closing, neither Purchaser nor the
Partnerships, shall be bound thereby or have any liability thereunder for
amounts due in respect thereof. With respect to all of those Partnerships
that directly or indirectly relate to one or more Centers which are the
subject of a particular closing, all tax-sharing agreements or similar
arrangements with respect to or involving such Partnerships and their
respective General Partners, shall be terminated prior to such closing,
and, after such closing, neither Purchaser nor any of such Partnerships
shall be bound thereby or have any liability thereunder for amounts due in
respect thereof.
(ii) Apportionment. With respect to each Partnership, any
Taxes for a period including a Pre-Closing Partial Period and a
Post-Closing Partial Period (both as defined below) with respect to such
entity shall be apportioned between such Pre-Closing Partial Period and
such Post-Closing Partial Period, based, in the case of real and personal
property Taxes, on a per diem basis and, in the case of other Taxes, on
the actual activities, taxable income or taxable loss of such entity
during such Pre-Closing Partial Period and such Post-Closing Partial
Period. All determinations necessary to give effect to the foregoing
allocations shall be made in a manner consistent with the prior practice
of the applicable entity. Notwithstanding the foregoing, the Transfer
Taxes attributable to a particular closing shall be paid by Seller as
provided in Section 14(b) and shall be deemed attributable to the period
up to and including the date on which said closing occurs, except as
provided in Section 13. For purposes of this Agreement, (i) a "Pre-Closing
Partial Period" with respect to a particular entity means any Tax period
beginning before the date of the closing pertaining directly or indirectly
to such entity and ending after such date, but only with respect to the
portion of such period up to and including such date, and (ii) a
"Post-Closing Partial Period" with respect to a particular entity means
any Tax period beginning before the date of the closing pertaining
directly
43
or indirectly to such entity and ending after such date, but only with
respect to the portion of such period beginning the first day after such
date.
(iii) Filing of Tax Returns and Payment of Taxes.
(1) Tax Returns of Partnerships.
(a) Termination of the Partnerships. As a result
of the purchase of all of the partnership interests in the Partnerships as
provided herein, each Partnership shall be considered terminated as provided in
Section 708(b)(1)(B) of the Code and Treasury Regulations Sections
1.708-1(b)(1)(iii) and 1.708-1(b)(1)(iv), with the date of the termination being
the date of the closing pertaining directly or indirectly to such Partnership.
As a result of such termination, Seller shall cause the Partnerships to prepared
an accounting of the books of each Partnership using an "interim closing of the
books" method, and each Partnership's taxable year shall be closed, effective as
of the close of business on the date of the closing pertaining directly or
indirectly to such Partnership. Said accounting shall be prepared by the
Partnerships' accountants (the "Accountants"), on behalf of each Partnership,
within 90 days after the date of the closing pertaining directly or indirectly
to such Partnership. Seller shall instruct the Accountants to prepare and file
on behalf of the Partnerships and at the expense of the Seller a final Tax
Return for each Partnership, and to prepare the Schedule K-1's associated with
such final Tax Returns, in accordance with Code Sections 706 and 708 and the
regulations thereto for the short tax period beginning with the first day of the
Partnership's taxable year and ending with the date of the closing pertaining
directly or indirectly to such Partnership. Such final Tax Returns shall be
available for the review and reasonable approval of Purchaser. Seller shall make
a timely and proper election pursuant to Code Section 754 with respect to each
Partnership if such would result in a tax benefit to Purchaser, unless, with
respect to each Partnership, such an election is already in effect or if
Purchaser instructs Seller not to make the election.
(b) Tax Returns. With respect to each Partnership,
the Purchaser will be responsible for the preparation and filing of all Tax
Returns for the Partnership's successor in interest for tax purposes for all Tax
periods beginning on the date of the closing pertaining directly or indirectly
to such Partnership. Purchaser will make all payments required with respect to
any such Tax Returns.
(c) Payment of Taxes. With respect to each
Partnership, to the extent not paid by the Seller on or prior to the date of the
closing pertaining directly or indirectly to such Partnership, the Seller shall
be responsible for, and shall pay, or cause to be paid, all Taxes of Seller or
the Partnership with respect to the Partnership or the Seller's partnership
interests in the Partnership that relate to Tax periods ending on or before such
date or a Pre-Closing Partial Period, including, without limitation, all Taxes
associated with the sale and transfer of Seller's partnership interests in the
Partnership hereunder. Seller shall also be responsible for and pay all filing
and recording taxes and fees, and all sales, use and transfer taxes and fees, if
any, associated with the sale and transfer of Seller's partnership interests in
the Partnerships hereunder. With respect to each Partnership, in the case of the
portion of any Tax
44
period that begins before the date of the closing pertaining directly or
indirectly to such Partnership and ends after such date, Taxes shall be
apportioned as provided in Section 21(c)(ii).
(3) Payment of Taxes. Promptly after the Purchaser
acquires actual knowledge of an amount of Taxes payable by or with respect to
any one or more of the Partnerships, which Taxes are attributable to a
Pre-Closing Partial Period or a Tax period ending on or before the date of the
closing pertaining directly or indirectly to such entity, the Purchaser shall
give notice thereof to the Seller. Seller will pay the amount of such Taxes to
Purchaser within 30 days after the receipt of such notice provided however that
Seller shall have the right to contest such Taxes and not make payment until
such contest is finally determined or settled by Seller, and so long as
Purchaser shall not be subject to any penalties.
(4) Transfer Taxes. Notwithstanding the foregoing
provisions of this Section 21(c)(iii), Seller will, at its own expense (except
as otherwise provided if fee title to the Hollywood Center is transferred in
connection with Purchaser's 1031 exchange) file all necessary Tax Returns and
other documentation with respect to the Transfer Taxes, and, if required by
applicable law, Purchaser will, and will cause its affiliates to, join in the
execution of any such Tax Returns and other documentation. The parties hereto
agree to cooperate with the other in the filing of any Tax Returns with respect
to the Transfer Taxes, including supplying in a timely manner a complete list of
all property interests held by the Partnerships and any information with respect
to such property that is reasonably necessary to complete such Tax Returns.
Notwithstanding anything contained herein, Purchaser shall pay all taxes, costs
and expenses attributable to the PM Note and Security Agreement.
(iv) Post-Closing Audits; Cooperation. With respect to each
Partnership, Seller, on the one hand, and Purchaser, on the other hand, agree to
give prompt notice to each other of any proposed adjustment to Taxes for periods
ending on or prior to the date of the closing pertaining directly or indirectly
to such entity or any Pre-Closing Partial Period. Sellers and Purchaser shall
cooperate with each other in the conduct of any audit or other proceedings
involving any of the Partnerships for such periods and each may participate at
its own expense, provided that Seller shall have the right to control the
conduct of any such audit or proceeding for which Seller (i) agrees that any
resulting Tax is covered by the indemnity provided in Section 25(a)(iii) of this
Agreement, and (ii) demonstrates to Purchaser their ability to make such
indemnity payment. Notwithstanding the foregoing, Seller may settle or otherwise
resolve any such claim, suit or proceeding with the consent of Purchaser, such
consent not to be unreasonably withheld. Seller, on the one hand, and Purchaser,
on the other hand, agree to furnish or cause to be furnished to each other, upon
request, as promptly as practicable, such information and assistance (including
access to books and records) related to Partnerships as is reasonably necessary
for the preparation of any Tax Return, claim for refund or audit, and the
prosecution or defense of any claim, suit or proceeding relating to any proposed
adjustment. Seller and Purchaser further agree, upon request, to use their best
efforts to obtain any certificate or other document from any Governmental
Authority or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed (including, but not limited to, with
respect to the transactions contemplated hereby).
45
(d) Risk of Loss. Except as provided in this Section 21(d), prior to
the respective closings contemplated by this Contract the risk of loss from
fire, casualty or any other act or occurrence ("Casualty") with respect to the
Relevant Centers involved in the closings shall be borne by the Seller. Seller
shall immediately notify Purchaser in writing upon the occurrence of any
Casualty affecting any Center or any part thereof. Seller further shall provide
Purchaser, within twenty (20) days after the occurrence of the Casualty, with a
reasonably detailed estimate of the cost to repair the damage resulting from the
Casualty (the "Amount of Damage"), which estimate shall be subject to
Purchaser's approval (and which approval shall not be unreasonably withheld or
delayed). If the Casualty occurs within twenty (20) days of the date scheduled
for the closing, unless otherwise agreed by Purchaser said closing date shall be
extended until the seventh day after the approval of the Amount of Damage by
Purchaser.
(i) Fire and Other Casualty. If the Amount of Damage
attributable to a Casualty at the Centers involved in the closing is less than
five percent (5%) of the Purchase Price allocable to the closing involving such
Centers (which, for these purposes, shall mean (A) in the case of the CMBS
Centers, the total Purchase Price less the portion thereof payable in cash at
the Hollywood Closing or the Millenia Closing, (B) in the case of the Hollywood
Closing, shall mean the portion of the Purchase Price payable in cash at the
Hollywood Closing, and (C) in the case of the Millenia Closing, shall mean the
portion of the Purchase Price payable in cash at the Millenia Closing), then
Purchaser shall continue to be obligated to effect such closing in accordance
with the balance of the terms set forth in this Contract, except that at such
closing Purchaser shall be entitled to a credit against the Purchase Price
(which credit shall be effected by reducing the cash portion of the Purchase
Price payable at such closing) equal to the sum of (1) any deductibles suffered
by the Partnerships owning the Centers prior to having the right to collect
proceeds to cover the Amount of Damage under any applicable insurance policies
plus (2) any such insurance proceeds collected by Seller or the Partnership on
account of such Casualty prior to such Closing, except to the extent that the
same (a) have been applied to effecting the repair of the damage, (b) otherwise
continue to be held for such purpose by the Partnerships owning the Centers or
(c) otherwise continue to be held as required by the terms of the CMBS Loan
Documents. If instead the Amount of Damage attributable to a Casualty at a
Centers is greater than or equal to five percent (5%) of the Purchase Price
allocable to the closing involving such Centers, then Purchaser shall, at its
option, in its sole and absolute discretion, elect one of the following within
five (5) days after the approval of the Amount of Damage: (i) terminate its
obligation to effect said closing by giving written notice to Seller, in which
event the provisions of Section 3(c) shall apply; (ii) extend the scheduled
closing date with respect to such closing for a reasonable time, which time
shall not exceed one hundred twenty (120) days, in order to enable Seller to
repair such damage to the improvements, and in such an event, Seller shall
promptly repair such damage, and such damage shall be repaired so that the
improvements will conform to the condition of the Centers immediately preceding
such Casualty (provided that if such completion has not been accomplished by
such extended closing date, then (a) Purchaser shall have a period of five (5)
days to elect to proceed thereafter under clause (i) or clause (iii) of this
sentence and (b) if Purchaser elects to proceed thereafter under clause (iii) of
this sentence, then the closing shall occur on a date selected by Purchaser no
later than fifteen (15) days after the five (5) day period afforded Purchaser to
make such election); or (iii) close the transaction contemplated by this
Agreement, in which event shall continue to be obligated to effect such closing
in accordance with the balance of the terms set forth in this Contract, except
that at such
46
closing Purchaser shall be entitled to a credit against the Purchase Price
(which credit shall be effected by reducing the cash portion of the Purchase
Price payable at such closing) equal to the sum of (A) any deductibles suffered
by the Partnerships owning the Centers prior to having the right to collect
proceeds to cover the Amount of Damage under any applicable insurance policies
plus (B) any such insurance proceeds collected by Seller on account of such
Casualty prior to such Closing, except to the extent that the same (1) have been
applied to effecting the repair of the damage, (2) otherwise continue to be held
for such purpose by the Partnerships owning the Centers or (3) otherwise have
been applied as required by the terms of the CMBS Loan Documents.
(ii) Condemnation. The risk of loss due to condemnation or
eminent domain from an applicable governmental authority shall be borne by the
Seller. Seller shall immediately notify Purchaser in writing upon notice of
knowledge of any condemnation or eminent domain proceeding affecting any Center
or any part thereof, which is pending, threatened or contemplated. In the event
any portion of any Center is becomes the subject of a condemnation proceeding by
an applicable governmental authority prior to the closing with respect to such
Center, Purchaser shall, at its option, in its sole and absolute discretion,
select one of the following: (i) terminate its obligation to effect said closing
by giving written notice to Seller within ten (10) calendar days after Purchaser
receives notice of said condemnation or plan or threat of condemnation from
Seller, in which event the provisions of Section 3(c) shall apply; or (ii)
accept the Property in its condemned state and proceed to close on the
transaction contemplated by this Agreement according to the remaining terms
hereof, in which event, Purchaser shall be entitled to all the proceeds awarded
relating to said condemnation, subject to the terms of the CMBS Loan Documents.
22. No Assignment. Neither this Contract nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of the other party; provided, however, that Purchaser may, without such
consent, assign all such rights to an Affiliate of Purchaser, provided, however
that the PM Note, the CMBS Vacancy, the Hollywood Vacancy Note and the Brainfood
Note and all indemnities and other obligations of Purchaser hereunder or made at
closing shall be the direct obligation of Price Enterprises Inc. Subject to the
foregoing, this Contract shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, and no
other person shall have any right, benefit or obligation under this Contract as
a third party beneficiary or otherwise.
23. Notices. Notices which may or are required to be given under this
Contract by any party to another shall be given by hand delivery, transmitted by
telecopier, facsimile or by registered or certified mail, return receipt
requested, and shall be addressed to the respective parties hereto at their
addresses as set forth below or to such other addressee, addresses or facsimile
numbers as may be designated by any party hereto by notice addressed to each of
the other parties listed below:
If to Seller or Swerdlow:
c/o Swerdlow Real Estate Group, Inc.
000 Xxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxx 00000
47
Attention: Xxxxxxxx Xxxxxxx, Esq.
With a copy to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq. and Xxxx X. Xxxxxxx, Esq.
If to Purchaser:
Price Enterprises, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a copy to:
Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Notices shall be deemed to have been given when delivered by hand or transmitted
by telecopier or facsimile, on the date indicated as the date of receipt on the
transmission confirmation.
24. Termination. In the event that any condition set forth in Section 19
is not satisfied in all material respects on or prior to the closing date set
forth Section 12 for a closing contemplated by this Contract, then the party to
this Contract whose obligations are conditioned upon the satisfaction of such
condition may in its sole and absolute discretion terminate its obligation to
effect said closing by written notice delivered to the other party at or prior
to the occurrence of the closing, and the provisions of Section 3(d) thereafter
shall apply.
25. Indemnity.
(a) Indemnification by Seller and Swerdlow. Seller and Swerdlow, on
a joint and several basis, shall indemnify, protect, defend and hold Purchaser
and its Affiliates, successors and assigns and persons serving as officers,
directors, partners, managers, stockholders, employees and agents thereof
(individually a "Purchaser Indemnified Party" and collectively the "Purchaser
Indemnified Parties") harmless from and against any Damages which may be
sustained or suffered by any of them arising out of or based upon any of the
following matters:
48
(i) fraud or intentional misrepresentation in any material
respect of Seller or Swerdlow under this Contract or in any certificate,
schedule or exhibit delivered pursuant hereto (collectively, "Fraud Claims");
(ii) any failure to convey title at a closing to the Equity
Interests free and clear of any Liens or any inaccuracy in any of the
representations or warranties made by Seller and Swerdlow in Sections 3 and 4 of
the Seller's Closing Title Certificate delivered pursuant to Section 20 at such
Closing (collectively, "Ownership Claims");
(iii) with respect to each Relevant Center involved in a
closing, any Liability of Swerdlow, Seller or the Partnerships owning the
Relevant Centers (collectively, the "Seller Indemnifying Parties" and
individually a "Seller Indemnifying Party") incurred in connection with or
arising from (i) their respective activities, assets and all events and
transactions prior to the closing, and any breach of the representations and
warranties or any covenant with respect to, Taxes or Tax related matters set
forth herein or in the exhibits hereto, (ii) all Taxes resulting from or arising
in connection with a change of ownership or termination of partnership, joint
venture, or similar arrangements to which a Seller Indemnifying Party is a party
caused by the transactions effected in connection with such closing, (iii) with
respect to each Seller Indemnifying Party (other than Seller), all Taxes with
respect to such Seller Indemnifying Party with respect to all Tax periods ending
on or prior to the date of such closing pertaining directly or indirectly to
such Seller Indemnifying Party, (iv) with respect to each Seller Indemnifying
Party (other than Seller), all Taxes with respect to such Seller Indemnifying
Party with respect to any Pre-Closing Partial Period, (v) all Taxes with respect
to Seller with respect to all Tax periods whatsoever (with the Liabilities
described in the foregoing clauses (i) through (v), inclusive referred to
collectively as "Tax Claims"); and
(iv) other than Fraud Claims, Ownership Claims and Tax Claims,
any other breach of any representation, warranty or covenant of Seller under
this Contract or in any schedule, closing certificate or exhibit delivered
pursuant hereto, or by reason of any claim, action or proceeding asserted or
instituted growing out of any matter or thing constituting a breach of such
representations, warranties or covenants (collectively, "General Claims").
(b) Limitations on Indemnification by Swerdlow and Seller. Anything
contained in this Contract to the contrary notwithstanding, the liability of
Seller and Swerdlow to provide any indemnification to any Purchaser Indemnified
Party and the right of the Purchaser Indemnified Parties to indemnification
under this Section 25 (or otherwise) shall be subject to the following
provisions:
(i) No claims for indemnification shall be made under this
Contract against Seller or Swerdlow, and no indemnification shall be
payable to any Purchaser Indemnified Party, with respect to General Claims
arising with respect to a Relevant Center, unless a Purchaser Indemnified
Party provides Swerdlow and Seller with a written notice asserting such
claim within 18 months following the closing with respect to the Relevant
Center.
49
(ii) No claims for indemnification shall be made under this
Contract against Seller or Swerdlow, and no indemnification shall be
payable to any Purchaser Indemnified Party (or any Partnership owning said
Relevant Center with respect to any Tax Claim, unless a Purchaser
Indemnified Party provides Swerdlow and Seller with a written notice
asserting such claim within one month after expiration of all applicable
statutes of limitation with respect to the Tax Laws that are the subject
of the indemnification claim, and the expiration of all applicable
statutes of limitation taking into account any extensions thereof.
(iii) No claims for indemnification with respect to Ownership
Claims under this Contract with respect to a Relevant Center shall be made
by any Purchaser Indemnified Party unless a Purchaser Indemnified Party
provides written notice to Swerdlow and Seller of such claim within five
years after the applicable closing.
(iv) Claims made by any Purchaser Indemnified Party against
Seller or Swerdlow for indemnification with respect to Fraud Claims under
this Contract or in any certificate, schedule or exhibit delivered
pursuant hereto shall not be subject to any of the limitations set forth
in Section 25(b).
(c) Indemnification by Purchaser. Purchaser agrees to indemnify and
hold Seller, Swerdlow and their Affiliates and persons serving as officers,
directors, partners, managers, stockholders, employees and agents thereof
(collectively the "Seller Indemnified Parties") harmless from and against any
Damages which may be asserted against, incurred by sustained or suffered by any
of them arising from and after a closing hereunder out of or based upon any
breach of any representation, warranty or covenant made by Purchaser in this
Contract or in any certificate delivered by Purchaser hereunder, or by reason of
any claim, action or proceeding asserted or instituted growing out of any matter
or thing constituting such a breach or in anyway relating to or arising out of
the ownership of the Equity Interests and the ownership and operation of the
Property from and after the applicable Closing Date (except, in each case, to
the extent that the claim, action or proceeding arises out of a breach by
Swerdlow or Seller of a covenant, representation or warranty set forth herein).
(d) Limitation on Indemnification by Purchaser. Notwithstanding the
foregoing, no indemnification shall be payable to the Seller Indemnified Parties
with respect to claims asserted pursuant to Section 25(c) above with respect to
a Relevant Center unless a Seller Indemnified Party provides Purchaser with
written notice of such claim within eighteen (18) months after the applicable
closing. Claims for indemnification with respect to fraud, intentional
misrepresentation or the cause or knowledge of a deliberate or willful breach of
any representations, warranties or covenants of Purchaser under this Contract or
in any certificate, schedule or exhibit delivered pursuant hereto shall not be
subject to any of the limitations set forth in Section 25(c).
(e) Notice; Defense of Claims. An indemnified party shall make
claims for indemnification hereunder by giving written notice thereof to the
indemnifying party promptly on discovery. If indemnification is sought for a
claim or Liability asserted by a third party, the indemnified party shall also
give written notice thereof to the indemnifying party promptly after
50
it receives notice of the claim or Liability being asserted, but the failure to
do so shall not relieve the indemnifying party from any Liability except to the
extent that it is prejudiced by the failure or delay in giving such notice. Such
notice shall summarize the basis for the claim for indemnification and any claim
or Liability being asserted by a third party. The indemnifying party shall be
entitled to direct the defense against a third party claim or Liability with
counsel selected by it (subject to the consent of the indemnified party, which
consent shall not be unreasonably withheld). The indemnified party shall at all
times have the right to fully participate at its own expense in the defense of a
third party claim or Liability, directly or through counsel; provided, however,
that if the named parties to the action or proceeding include both the
indemnifying party and the indemnified party and the indemnified party is
advised that representation of both parties by the same counsel would be
inappropriate under applicable standards of professional conduct, the
indemnified party may engage separate counsel at the expense of the indemnifying
party. If no such notice of intent to dispute and defend a third party claim or
Liability is given by the indemnifying party, the indemnified party shall have
the right, at the expense of the indemnifying party, to undertake the defense of
such claim or Liability (with counsel selected by the indemnified party), and to
compromise or settle it, with consent of the indemnifying party, which consent
shall not be unreasonably withheld. If the third party claim or Liability is one
that by its nature cannot be defended solely by the indemnifying party, then the
indemnified party shall make available such information and assistance as the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense, at the expense of the indemnifying party.
Notwithstanding the foregoing provisions of this Section 25(e) to the contrary
and Seller's right to contest any Tax Claim, the Seller Indemnifying Parties, on
a joint and several basis, shall reimburse Purchaser immediately upon demand for
any Tax Claims subject to indemnification under Section 25(a)(iii).
26. Remedies.
(a) Purchaser's Remedies. If Swerdlow or Seller shall default in
performing any obligation of Swerdlow or Seller under this Contract for any
reason, or if any condition to Purchaser's obligation to effect a closing
contemplated hereby shall not have been satisfied as of the date scheduled
pursuant to Section 12 for said closing, Purchaser may as its sole and exclusive
remedy elect to (i) terminate its obligation to effect said closing, in which
case the provisions of Section 3(d) shall apply; (ii) seek to enforce the
equitable remedy of specific performance of this Contract (it being specifically
understood and agreed that such remedy shall be available to enforce, among
other obligations, Seller's obligations under Section 16(d) with respect to
construction and leasing of the improvements at Millenia Center); or (iii) waive
the satisfaction of any unsatisfied condition or obligation and consummate the
closing; provided, however, that nothing herein shall be construed as limiting
the parties' rights and obligations under Section 25 of this Contract (except
that if Purchaser shall have become aware, prior to a closing, of facts which
reasonably should have led Purchaser to conclude that Seller or Swerdlow then
was in default in its representations, warranties or covenants hereunder or that
a condition to such closing has not been satisfied, and Purchaser nonetheless
shall have determined to effect such closing, then Purchaser shall be deemed to
have waived any right thereafter to pursue any claims under of this Contract
against Seller or Swerdlow insofar as such claims arise out of such facts).
51
(b) Seller's Remedies. IF PURCHASER SHALL DEFAULT IN PERFORMING ITS
OBLIGATIONS HEREUNDER TO EFFECT A CLOSING CONTEMPLATED HEREBY, OTHER THAN (1)
DUE TO SELLER'S DEFAULT OR CAUSE, OR (2) DUE TO PURCHASER'S RIGHT TO TERMINATE
ITS OBLIGATION TO EFFECT SAID CLOSING PURSUANT TO ANY OTHER PROVISION OF THIS
CONTRACT, THEN SELLER SHALL, AS ITS SOLE AND EXCLUSIVE RIGHT AND REMEDY,
TERMINATE ITS OBLIGATION TO EFFECT SAID CLOSING AND RETAIN THE XXXXXXX MONEY
DEPOSIT ALLOCATED TO SAID CLOSING PURSUANT TO SECTION 3 (INCLUDING ALL INTEREST
THEREON) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY FOR PURCHASER'S DEFAULT
(PURCHASER AND SELLER AGREEING THAT IT IS NOT OTHERWISE POSSIBLE TO MEASURE
SELLER'S DAMAGES RESULTING FROM PURCHASER'S DEFAULT, INCLUDING ANY COSTS,
EXPENSES AND FEES SELLER MAY INCUR IN CONNECTION THEREWITH), AND THEREAFTER
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, OBLIGATIONS OR LIABILITIES
HEREUNDER WITH RESPECT TO SAID CLOSING EXCEPT FOR SUCH INDEMNITY OR OTHER
PROVISIONS WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS CONTRACT OR AS TO ANY
CLOSING (IT BEING UNDERSTOOD THAT, IN ACCORDANCE WITH THIS CONTRACT, PURCHASER
AND SELLER MAY CONTINUE TO BE OBLIGATED TO EFFECT THE OTHER CLOSINGS
CONTEMPLATED HEREBY).
____________________ _____________________
Purchaser's Initials Seller's Initials
27. Miscellaneous.
(a) This Contract shall not be amended waived, terminated or
otherwise modified in any respect, and no consent or approval required pursuant
to this Contract shall be effective, unless the same shall be in writing and
signed by or on behalf of the party to be charged, except as expressly provided
to the contrary.
(b) The Letter of Intent dated February 16, 2001 and all other prior
statements, understandings, representations and agreements between the parties,
oral or written, are superseded by and merged in this Contract. This Contract
shall be given a fair and reasonable construction in accordance with the
intentions of the parties hereto, and without regard to or aid of canons
requiring construction against the party drafting this Contract.
(c) Wherever this Contract provides that a party must send a notice,
make an election, perform some obligation or take some other action within a
specific time period in order to exercise a right or remedy it may have
hereunder, time shall be of the essence with respect to the taking of such
action or the performance of such obligation.
(d) Except as expressly provided herein, no failure or delay of any
party in the exercise of any right or remedy given to such party hereunder or
the waiver by any party of any condition hereunder for its benefit shall
constitute a waiver of any other or further right or remedy nor shall any single
or partial exercise of any right or remedy preclude any other or
52
further exercise thereof or any other right or remedy. No waiver by either party
of any breach hereunder or failure or refusal by the other party to comply with
its obligations shall be deemed a waiver of any other or subsequent breach,
failure or refusal to so comply.
(e) This Contract may be executed in several counterparts, each of
which will be deemed an original, but all of which will constitute one and the
same instrument.
(f) The captions in this Contract are inserted for convenience and
reference only and shall in no way affect, define, limit or describe the scope,
intent or construction of any provision hereof.
(g) This Contract shall be interpreted and enforced in accordance
with the laws of the State of Florida without reference to principles of
conflicts of laws.
(h) EACH PARTY HEREBY WAIVES (FOR ITSELF AND ITS SUCCESSORS AND
ASSIGNS) TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY SUCH
PARTY AGAINST ANY OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
(i) Except as set forth in Section 14, each party shall be
responsible for all of its own costs and expenses associated with its execution
and delivery of this Contract.
(j) Any legal action or proceeding with respect to this Contract may
be brought in the courts of the State of Florida or of the United States of
America for the Miami District and the appellate courts of any thereof, and by
execution and delivery of this Contract, each party to this Contract hereby
accepts, generally and unconditionally, the jurisdiction of the aforesaid
courts. The venue for any proceeding shall be Miami-Dade County. Each party to
this Contract hereby expressly and irrevocably submits to the in personam
jurisdiction of the foregoing courts in any suit, action or proceeding arising,
directly or indirectly, out of or relating to this Contract. To the extent
permitted under applicable law, this consent to personal jurisdiction shall be
self-operative and no further instrument or action, other than service of
process in one of the manners specified in this Contract or as otherwise
permitted by law, shall be necessary in order to confer jurisdiction upon the
person of such party in any such court.
(k) To the fullest extent permitted under applicable law, each party
to this Contract irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in such a
court referred to in this Section 26, any claim that any such suit, action or
proceeding has been brought in an inconvenient forum, any claim that it is not
personally subject to the jurisdiction of any such court or that this Contract
or the subject matter hereof may not be enforced in or by such court.
(l) No party shall issue any press release or public statement (a
"Release") with respect to the transactions contemplated by this Contract prior
to a closing without the prior written consent of all parties to this Contract
and (ii) after any such closing, any Release issued by any of Seller or
Purchaser shall be subject to the review and approval of the other parties
53
(which approval shall not be unreasonably withheld). If Seller or Purchaser is
required by law to issue a Release, such party shall, if practicable, at least
two (2) Business Days prior to the issuance of the same, deliver a copy of the
proposed Release to the other parties for their review. The Seller hereby
consents to the filing of the Contract with the SEC.
(m) As used in this Contract, the singular shall include the plural
and the masculine gender shall include the feminine and neuter and vice versa,
as the context requires.
(n) Words such as "herein," "hereinafter," "hereof," "hereto" and
"hereunder," when used with reference to this Contract, refer to this Contract
as a whole, unless the context otherwise requires.
(o) The Exhibits annexed hereto, and the capitalized terms defined
therein, are hereby incorporated by reference into the body of this Contract as
if the same were fully set forth herein.
(p) Whenever used herein, the term "including" shall be construed to
mean "including without limitation."
(q) Attorneys Fees and Legal Expenses. In the event any action is
instituted by a party hereto concerning any misrepresentation or any breach of
any of the warranties, covenants or agreements contained in this Contract, the
prevailing party in such action shall be entitled to all costs and expenses
(including, but not limited to, attorneys' fees, legal expenses and court costs)
incurred in such action and any appeal therefrom.
(r) Further Assurances. Purchaser and Seller will, at any time prior
to, at, or after a closing contemplated hereby, duly execute and deliver to the
other party any additional documents which either Purchaser or Seller reasonably
determine are necessary in connection with the consummation of this Contract,
and the failure of either party to demand such document at or before a closing
shall not alleviate the obligation of the other party to execute and deliver the
same at any time upon request of Purchaser or Seller.
(s) Survival of Representations, Warranties, Agreements and
Covenants. All of the representations, warranties, agreements and covenants of
Seller set forth in this Agreement (including, without limitation, the
representations, warranties, agreements and covenants of Seller set forth in any
Exhibit hereto) shall survive each closing, provided, however, that the rights
of any Purchaser Indemnified Party to bring a claim on account of any such
representation, warranty, agreement or covenant shall be subject to the
limitations set forth in Section 25.
(t) Survival of Representations, Warranties, Agreements and
Covenants. All of the representations, warranties, agreements and covenants of
Purchaser set forth in this Agreement shall survive the Closing.
(u) The phrase "to the knowledge of Seller" or similar phrase as
used in this Contract means the conscious awareness at the time such knowledge
speaks, of the following officers or employees of Seller: Xxxxxxx Xxxxxxxx,
Xxxxx Xxxx, Xxx Xxxxxxx, Xxx XxXxxxx,
54
Xxxxxx Xxxxx (and any replacement property manager for a Center, if Xxxxxx Xxxxx
is not the property manager for the Center as of the closing date), and Xxxxx
Xxxxxxx.
(v) General Partner. Notwithstanding anything contained herein any
obligation, representation, covenant or indemnity made hereunder by any General
Partner shall be deemed to relate solely to the Partnership and property that
corresponds to such General Partner.
28. Definitions. The following capitalized terms used in this Contract
shall, unless the context otherwise requires, shall have the following meanings:
"Additional Purchase Price" shall have the meaning assigned to such
term in Section 16(d)(v).
"Affiliate" means with respect to any Person (i) any other Person
that directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such Person,. (ii) any other
Person owning or controlling 10% or more of the outstanding voting securities of
or other ownership interests in such Person, (iii) any officer, director, member
or partner of such Person or (iv) if such Person is an officer, director, member
or partner, any other Person for which such Person acts in any such capacity.
"Anchor Tenant" means, with respect to a Center, a Tenant occupying
20,000 square feet or more within that Center.
"Assumption Fees" means the assumption fee payable to the CMBS
Lenders in the amount of one (1%) percent of the unpaid principal balance of the
CMBS Notes and all other costs and expenses (including attorneys' fees) payable
to the CMBS Lender pursuant to the terms and provisions of the CMBS Loan
Documents, or as otherwise required by the CMBS Lender, in connection with
obtaining the consent of the CMBS Lender to the sale of the Equity Interest or
the Properties to Purchaser, and to the pledge of the CMBS Equity to Seller to
secure the PM Note.
"Benefit Plan" shall mean an "employee benefit plan" within the
meaning of Section 3(2) of ERISA, or any employment, consulting, severance
parachute or change in control, or other similar contract agreement, arrangement
or policy, or any plan arrangement (written or oral), program, agreement or
commitment providing for insurance coverage (including without limitation any
self-insured arrangements), workers' compensation, disability benefits,
supplemental unemployment benefits, vacation benefits, retirement benefits,
life, health, disability or accident benefits (including without limitation any
"voluntary employees' beneficiary association" as defined in Section 501(c)(9)
of the Code providing for the same or other benefits) or for deferred
compensation, profit-sharing bonuses, stock options, stock appreciation rights,
stock purchases or other forms of incentive compensation or post-retirement
insurance, compensation or benefits.
"Brainfood Adjustment Amount" shall have the meaning assigned to
such term in Section 16.
55
"Brainfood Note" means the note described in Section 16(a).
"Brainfood Reconciliation Date" shall have the meaning assigned to
such term in Section 16(a).
"Brainfood Replacement Lease" shall have the meaning assigned to
such term in Section 16(a).
"Brainfood Replacement Tenant" shall have the meaning assigned to
such term in Section 16(a).
"Brainfood Space" shall have the meaning assigned to such term in
Section 16(a).
"Business Day" means any day other than a Saturday, Sunday or other
day on which banks are authorized to be closed in the State of New York or the
State of Florida.
"Casualty" means any physical damage or destruction to any Property,
including by means of fire, casualty or any other act or occurrence.
"Center" shall have the meaning assigned to such term in the
Recitals of this Contract.
"Claims" means any Liabilities, obligations, losses, damages,
penalties, assessments, actions or causes of action, judgments, suits, claims,
demands, costs, expenses (including, without limitation, reasonable attorneys'
fees and expenses, whether or not suit is brought, and settlement costs) and
disbursements.
"CMBS Centers" means the Oakwood Plaza Center, the Oakwood Business
Center, the Cypress Creek Station Center, the Kendale Lakes Center and the Cross
County Center.
"CMBS Closing" shall have the meaning assigned to such term in
Section 12.
"CMBS Closing Date" shall have the meaning assigned to such term in
Section 12.
"CMBS Debt" means, collectively, the loans evidenced by the CMBS
Notes.
"CMBS Equity" means the Equity Interests attributable to the CMBS
Centers.
"CMBS Lender" means the holder of the CMBS Notes as of the Closing
Date.
"CMBS Loan Documents" means the CMBS Notes and any other documents
evidencing, securing or guarantying the obligations under the CMBS Notes.
"CMBS Lost Rent" shall have the meaning assigned to such term in
Section 16(b)(i).
56
"CMBS Maximum Loan Amount" shall mean $162,828,873.
"CMBS Notes" means the notes described on Exhibit J.
"CMBS Set-Off Amount" shall have the meaning assigned to such term
in Section 16(b)(iii).
"CMBS Vacancy Note" shall have the meaning assigned to such term in
Section 16(b).
"CMBS Vacancy Reconciliation Date" shall have the meaning assigned
to such term in Section 16(b).
"CMBS Vacant Tenant Value" shall have the meaning assigned to such
term in Section 16(b).
"CMBS Vacated Space" shall have the meaning assigned to such term in
Section 16(b).
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any corresponding federal tax statute enacted after the date of
this Contract. A reference to a specific section of the Code refers not only to
such specific section but also to any corresponding provision of any federal tax
statute enacted after the date of this Contract, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Contract containing such reference.
"Contingency Date" shall have the meaning assigned to such term in
Section 6.
"Contracts" means all written contracts or agreements to which any
Partnership is a party or by which it or its assets is or are bound.
"Cure Deadline" shall have the meaning assigned to such term in
Section 7.
"Cure Election Deadline" shall have the meaning assigned to such
term in Section 7.
"Current Liabilities" means, with respect to any Person, all current
Liabilities of such Person, including any Liabilities for the following:
(i) prepaid rents and other prepaid accounts receivable
previously received;
(ii) real estate taxes, assessments and personal property
taxes attributable to the period prior to the Closing Date, whether or not due
and payable;
(iii) taxes payable by such Person relating to operations
prior to the Closing Date, including, without limitation, business and occupancy
taxes and sales taxes, if any;
57
(iv) all other payables of such Persons, if any, not otherwise
apportioned herein; and
(v) all other Liabilities of such Person that would be deemed
current liabilities under GAAP.
"Damages" shall mean damages, Liabilities, losses (including,
without limitation, diminution in value), obligations, deficiencies, claims,
demands, Taxes, fines, penalties, costs and expenses of any kind or nature
whatsoever (whether or not arising out of third-party claims), including,
without limitation, interest, costs of mitigation, losses in connection with any
Environmental Law (including, without limitation, any clean-up or remedial
action), lost profits, losses resulting from any shutdown or curtailment of
operations, attorneys' fees and all amounts paid in investigation, defense or
settlement of any of the foregoing.
"DISCLOSURE SCHEDULE" shall mean the schedule attached hereto as
Exhibit K which sets forth the exceptions to the representations and warranties
contained in Section 17 and Section 18, respectively, and certain other
information called for by this Contract. The exceptions shall be memorialized in
sections within the DISCLOSURE SCHEDULE which cross-reference the particular
representations and warranties to which they relate.
"Xxxxxxx Money Deposit" shall have the meaning assigned to such term
in Section 3.
"Environmental and Engineering Report" shall have the meaning
assigned to such term in Section 5.
"Environmental Laws" means all present and future federal, state or
local laws, ordinances, codes, statutes, regulations, administrative rules,
policies or orders, and other authorities, which relate to the environment
and/or classify, regulate, impose liability, obligations, restrictions on
ownership, occupancy, transferability or use of the Property, and/or list or
define hazardous substances, materials, wastes, contaminants, pollutants and/or
the Hazardous Materials, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601, et seq., as now or hereafter amended, the Resources Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as now or hereafter amended,
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1081, et seq., as
now or hereafter amended, the Clean Water Act, 33 U.S.C. Section 1251, et seq.,
as now or hereafter amended, the Clean Air Act, 42 U.S.C. Section 7901, et seq.,
as now or hereafter amended, the Toxic Substance Control Act, 15 U.S.C. Sections
2601 through 2629, as now or hereafter amended, the Public Health Service Act,
42 U.S.C. Sections 300f through 300j, as now or hereafter amended, the Emergency
Planning and Community Right-to-know Act, 42 U.S.C. Sections 11001 to 11050, as
now or hereafter amended, the Occupational Safety and Health Act, 29 U.S.C.
Sections 651 to 678, as now or hereafter amended, and any similar federal, state
or local laws and ordinances and the regulations now or hereafter adopted,
published and/or promulgated pursuant thereto and other federal, state and local
laws relating to industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, disposal or transportation of any
Hazardous Materials.
58
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean any entity which is (or at any relevant
time was) a member of a "controlled group of corporations" with, under "common
control" with, or a member of an "affiliated service group" with any
Partnership, as defined in Section 414(b), (c), (m) or (o) of the Code, or under
"common control" with any Partnership within the meaning of Section 4001(b)(1)
of ERISA.
"Escrow Agent" means Lawyers Title Insurance Corporation located in
Fort Lauderdale, Florida (provided that the Xxxxxxx Money Deposit shall be
handled in accordance with Section 3).
"Escrow Agreement" means the Escrow Agreement, dated as of the date
hereof, among Seller, Purchaser and Escrow Agent.
"Estoppel Certificate" has the meaning set forth in Section 10(b).
"Estoppel Cure Deadline" has the meaning set forth in Section 10(b).
"Estoppel Cure Notice" has the meaning set forth in Section 10(b).
"Estoppel Delivery Deadline" has the meaning set forth in Section
10(a).
"Estoppel Objection Matter" has the meaning set forth in Section
10(b).
"Estoppel Objection Notice" has the meaning set forth in Section
10(b).
"Estoppel Termination Notice" has the meaning set forth in Section
10(c)(ii).
"Final Lender Estoppel" means, with respect to the CMBS Debt, a
certificate executed by the CMBS Lender substantially in form attached hereto as
Exhibit P or as otherwise approved by the CMBS Lender and reasonably
satisfactory to Purchaser.
"Force Majeure" means a public emergency, act of God or other
similar cause beyond Purchaser's control.
"Fraud Claims" shall have the meaning assigned to such term in
Section 25(a)(i).
"GAAP" means generally accepted accounting principles and practices
consistently applied for all periods so as to properly reflect the financial
condition, results of operations and changes in cash flows of any entity.
"GECC Pledge" means the Amended and Restated Pledge and Security
Agreement dated as of February 23, 2000, as amended, made by SREG Operating
Limited Partnership, Swerdlow Real Estate Group, Inc., SREG Holdings, Inc., SREG
SC Management, Inc., PM SREG Holdings, LLC, MJS SREG, LLC, SREG DMA LLC and SREG
Management Company, Inc., collectively, as Pledgor, to General Electric Capital
Corporation, as Lender.
59
"General Claims" shall have the meaning assigned to such term in
Section 25(a)(iv).
"General Partners" means each of the Delaware corporations listed on
Exhibit A hereto.
"Governmental Authority" means any national or federal government,
any state, regional, local or other political subdivision thereof with
jurisdiction and any Person with jurisdiction exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
(including without limitation, any court).
"Governing Documents" shall have the meaning assigned to such term
in Section 17(b).
"Guarantors" means, collectively, Swerdlow Real Estate Group, Inc.,
a Maryland corporation, and SREG Operating Limited Partnership, a Delaware
limited partnership.
"Hollywood Center" means Hollywood Xxxxx Xxxxxx xxx xxx Xxxx Xxxxx
Xxxxxx as described on Exhibit A.
"Hollywood Closing" shall mean the Closing with respect to the
Hollywood Center.
"Hollywood Equity" shall mean the Equity Interest attributable to
the Hollywood Center.
"Hollywood Vacancy Note" shall have the meaning assigned to such
term in Section 16(c).
"Hollywood Vacant Tenant Value" shall have the meaning assigned to
such term in Section 16(c).
"Hazardous Material" means all hazardous wastes, toxic substances,
pollutants, contaminants, radioactive materials, flammable explosives and other
such materials, including, but not limited to, substances defined as "hazardous
substances," "hazardous materials," "toxic substances," "toxic pollutants," or
"infectious waste" in any applicable laws or regulations, including, but not
limited to, the Environmental Laws, and any material that has been shown to have
significant adverse effects on human health, including, but not limited to,
asbestos, polychlorinated biphenyls ("PCBs"), urea formaldehyde foam insulation,
petroleum products (including any products or by-products therefrom), lead-based
paints, and any material containing or constituting any of the foregoing, and
any such other substances, materials and wastes which are or become regulated by
reason of actual or threatened risk of toxicity causing injury or illness, under
any Environmental Laws or other applicable federal, state or local law, statute,
ordinance or regulation, or which are classified as hazardous or toxic under
current or future federal, state or local laws or regulations.
60
"Improvements" shall mean all buildings, structures, fixtures and
other improvements now or hereafter located on, over and under the Property,
including, but not limited to, the heating, ventilating, air conditioning,
lighting, plumbing, water, electrical, gas and sewer fixtures, equipment and
systems located thereon and the landscaping thereon.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 26.
"Inspection Materials" shall have the meaning assigned to such term
in Section 5.
"Landlord Estoppel Certificate" shall have the meaning assigned to
such term in Section 10(a).
"Lease" means any lease, license or occupancy agreement with respect
to any of the Properties.
"Lesser Tenant" shall have the meaning assigned to such term in
Section 1(b)(i).
"Liabilities" means any direct or indirect liability, indebtedness,
obligation, commitment, expense, claim, guaranty or endorsement of or by any
person of any type, whether accrued, absolute, contingent, matured, unmatured or
other.
"Licenses" means all licenses, permits, certificates, approvals and
authorizations issued or required with respect to the ownership and operation of
each Property.
"Lien" means any mortgage, deed of trust, lien (statutory or other),
pledge, hypothecation, assignment, preference, priority, security interest, or
any other encumbrance or charge.
"Material Adverse Change" means a material adverse change occurring
from and after the date hereof in the business, operations or financial
condition of a Partnership or of a Center.
"Material Adverse Effect" means (i) any material adverse effect or
change in the condition, assets, Liabilities or Liens of any Center or on the
ability of any Partnership to operate its respective Center in the manner which
its has been operated historically, or any event or condition which would, with
the passage of time, constitute such a material adverse effect or Material
Adverse Change, (ii) any material adverse effect or change in the condition
(financial or other), business, results of operations, prospects, assets,
Liabilities or operations of any Partnership or any event or condition which
would, with the passage of time, constitute a material adverse effect or
Material Adverse Change and (iii) any Material Adverse Change in the ability of
any Seller or Swerdlow to consummate the transactions contemplated hereby, or
any event or condition which would, with passage of time, constitute a material
adverse effect or Material Adverse Change.
"Material Agreements" means all of the material notes, bonds,
mortgages, indentures, licenses, leases, contracts and other instruments and
obligations to which such entity
61
is a party or by which it or any of its respective properties (including any
Center within which such entity directly or indirectly owns any ownership
interests) may be bound.
"Millenia Adjacent Property" shall have the meaning assigned to such
term in Section 20(a).
"Millenia Amount" shall have the meaning assigned to such term in
Section 1(b).
"Millenia Closing" means the closing with respect to the Millenia
Center.
"Millenia Equity" means the Equity Interests attributable to
Millenia Center.
"Millenia Formula" shall have the meaning assigned to such term in
Section 1(b).
"Millenia Leases" shall have the meaning assigned to such term in
Section 1(b)(i).
"New Leases" shall have the meaning assigned to such term in Section
16(d).
"Objection Matter" shall have the meaning assigned to such term in
Section 7.
"Objection Notice" shall have the meaning assigned to such term in
Section 7.
"Order" means any statute, order, rule or regulation of any
Governmental Authority.
"Ordinary Course of Business" means, with respect to any of the
Partnerships, the ordinary and prudent course of business consistent with past
customs and practices of such Partnership or otherwise consistent with industry
standards for the maintenance and operation of properties similar in size,
quality, type and location to the Property owned by such Partnership.
"Ownership Claims" shall have the meaning assigned to such term in
Section 25(a)(ii).
"Partnership" means each of the Delaware limited partnerships listed
on Exhibit A hereto.
"Permitted Lost Rent Basket" means the following amounts with
respect to the following Centers:
Oakwood Plaza $125,074
Oakwood Business Center $81,092
Hollywood Hills Plaza $95,644
(includes Park Plaza)
Cypress Creek Station $114,794
00
Xxxxxxx Xxxxx Xxxxx $27,399
Cross County Plaza $0
"Permitted Title Exceptions" shall mean: (a) as to the CMBS Center,
the Liens granted as of the date hereof to secure the CMBS Notes (but only if
the lenders with respect to the CMBS Debt shall have provided Preliminary and
Final Lender Estoppels as contemplated by Sections 2(a) and 19(a)); (b) as to
each Center, any other exceptions to title expressly disclosed in the title
reports as applying to such Center, other than any such exceptions as to which
Purchaser timely shall have delivered an Objection Notice pursuant to Section 7
(provided, however, that if (1) Seller shall not have elected to cure such
Objection Matter, or (2) Seller shall have elected to cure such Objection Matter
and then failed to effect such cure by the Cure Deadline, and Purchaser
nonetheless shall have delivered the Purchaser's Election Not to Terminate, then
such Objection Matter, to the extent that it affects title to a Center, shall be
a Permitted Title Exception with respect to that Center); and (c) any other
exceptions previously approved in writing by Purchaser.
"Person" means any natural person, corporation, limited partnership,
limited liability company, limited liability partnership, general partnership,
joint stock company, joint venture, real estate investment trust, association,
company, trust, bank, trust company, land trust, business trust or other
organization irrespective of whether it is a legal entity, or any government or
agency or political subdivision thereof.
"Pre-Closing Partial Period" shall have the meaning assigned to such
term in Section 21(c)(ii).
"Preliminary Lender Estoppel" means, with respect to the CMBS Debt,
a certificate executed by the CMBS Lender substantially in the form attached
hereto as Exhibit P or as otherwise approved by the CMBS Lender and reasonably
satisfactory to Purchaser.
"Preliminary Title Report" shall have the meaning assigned to such
term in Section 5(b).
"Prepaid Payables" means any payments made by or on behalf of each
Partnership prior to the Closing Date for payment obligations and other
Liabilities of such Partnership relating to a period which extends in whole or
in part beyond the Closing Date, in each case to the extent such obligations or
Liabilities are attributable to the period after the Closing Date (e.g., real
estate taxes paid prior to Closing for a period that includes any days after the
Closing will be deemed a Prepaid Payable to the extent of the payment
attributable to the period after Closing). "Prepaid Payables" shall include:
(i) prepaid real estate taxes, assessments and personal
property taxes, if any, on the basis of the fiscal years, respectively, for
which same have been assessed;
(ii) reserves, deposits, escrow funds and cash collateral held
by Lender;
63
(iii) prepaid charges and payments under Contracts or
permitted renewals or replacements thereof:
(iv) prepaid fees for Licenses and annual permit and
inspection fees;
(v) prepaid utilities, including, without limitation, water
charges, sewer rents, telephone, electricity and gas, on the basis of the most
recently issued bills therefor, subject to adjustment after the Closing when the
next bills are available, or if current meter readings are available, on the
basis of such readings;
(vi) prepaid deposits with telephone and other utility
companies, and any other Persons who supply goods or services to any
Partnership;
(vii) prepaid trade association dues and trade subscriptions;
and
(viii) all other prepaid payables of each Partnership, if any,
not otherwise described herein.
"PM Note" shall have the meaning assigned to such term in Section
2(c).
"Property" means each of the premises, and all improvements thereon,
with the legal description set forth on Exhibit A.
"Property Permits" shall have the meaning assigned to such term in
Section 17(c).
"Purchaser's Election Not to Terminate" shall have the meaning
assigned to such term in Section 9.
"Purchaser Indemnified Party" shall have the meaning assigned to
such terms in Section 25(a).
"REIT" shall have the meaning assigned to such term by Code Section
856 and any applicable state or local counterparts thereto.
"Relevant Centers" means: (a) with respect to the CMBS Closing, the
Centers identified on Exhibit A as the Oakwood Plaza, Oakwood Business Center,
Cypress Creek Stations, Kendale Lakes Plaza and Cross County Plaza Centers; (b)
with respect to the Hollywood Closing, the Hollywood Hills Plaza Center; and (c)
with respect to the Millenia Closing, the Millenia Center.
"Rent Roll" means the rent roll attached hereto as Exhibit F.
"Replacement Lease" means a lease for vacant space that satisfies,
in each case, each of the following requirements: (1) the lease shall have been
approved by Purchaser, in its sole discretion; (2) the lease shall be to a
tenant who has taken occupancy, who has provided all required security and other
deposits due upon the commencement of the lease, whose obligation to pay rent
has commenced, who is not in default with respect to any obligation under its
lease to
64
pay rent, and who has executed a tenant estoppel certificate reasonably
acceptable to Purchaser; and (3) Seller shall have paid all lease commissions,
tenant improvement costs, tenant relocation costs or other similar costs payable
by the landlord under the lease, and Seller further shall have paid to the
Partnership owning the Center within which the applicable vacant space is
located an amount equal to any rent credits, rent abatements or other tenant
inducements provided to the tenant under the lease (as reasonably calculated by
Purchaser).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Deposits" mean all security, other deposits, advance
rentals and other collateral received under the Leases.
"Seller Indemnified Party" shall have the meaning assigned to such
terms in Section 25(c).
"Seller Indemnifying Party" shall have the meaning assigned to such
terms in Section 25(a)(iii).
"Shop Space" shall have the meaning assigned to such term in Section
1(b).
"Shop Tenants" shall have the meaning assigned to such term in
Section 10(a).
"Stabilized Rent" for a particular lease means the full contractual
annualized base rent due under the lease by its terms, calculated without regard
to any annual increase in base rent but after the expiration or exhaustion of
any rent abatement periods, rent credits or similar tenant inducements provided
under such lease and without giving credit for any portion thereof which exceeds
the then current market rental for similar space, as established by Seller and
approved by Purchaser, which approval shall not be unreasonably withheld. For
purposes of applying these principles: (A) a lease shall be deemed to include a
"tenant inducement" for a particular month if the annualized contractual base
rent payable for said month under the lease is more than 15% less than the
annualized contractual base rent payable under the terms of the lease for the
immediately following month (disregarding for purposes of this calculation
formulaic inflation based adjustments which, when assessed in the context of
circumstances existing at the time of execution of the lease, were reasonably
established so as to call for increases that likely would not exceed the actual
future rate of inflation); and (B) if the terms of the lease call for the
scheduled annualized base rent to reduce from time to time during the term of
the lease, then the full annualized contractual base rent of the lease for
purposes of these calculations shall be deemed to be the lowest scheduled
annualized base rent called for by the lease after the commencement of any such
reductions.
"Subject Allocation" shall have the meaning assigned to such term in
Section 21(c)(iii)(2)(d).
"Subsidiary" when used in respect to any party means any
corporation, partnership, limited liability company, joint venture or other
entity, (i) of which such party
65
directly or indirectly owns or controls a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization or (ii) as to which such party owns, directly
or indirectly, a majority of the equity interests therein.
"Tax" or "Taxes" means mean all taxes, charges, fees, levies or
other assessments, payable to or imposed by any Governmental Authority,
including, without limitation, all net income, gross income, gross receipts,
sales, use, VAT, service, service use, ad valorem, transfer, franchise, license,
lease, withholding, social security, payroll, employment, excise, estimated,
severance, stamp, recording, occupation, real and personal property, gift,
windfall profits or other taxes, customs duties, fees, assessments or charges of
any kind whatsoever, whether computed on a separate, consolidated, unitary,
combined or other basis, together with any interest, fines, penalties, additions
to tax or other additional amounts imposed thereon or with respect thereto
imposed by any taxing authority (domestic or foreign). The terms "Tax" and
"Taxes" include any liability for the payment of any amounts of any of the
foregoing types as a result of being a member of an affiliated, consolidated,
combined or unitary group, or being a party to any agreement or arrangement
whereby liability for payment of such amounts was determined or taken into
account with reference to the liability of any other person.
"Tax Claims" shall have the meaning assigned to such term in Section
25(a)(iii).
"Tax Returns" means all returns, declarations, reports, estimates,
statements, schedules, information returns or other information or documents
with respect to any Tax (including without limitation information returns and
other material information).
"Tenants" means all persons and entities renting or occupying space
under the Leases.
"Tenant Estoppel Certificate" shall have the meaning assigned to
such term in Section 10(a).
"Threshold Lease" means a lease to a Shop Tenant if:
(i) the new lease has an initial term of not less than five (5)
years and, including options to renew or extend, if any, not more than an
additional ten (10) years;
(ii) in the event an option to renew or extend is granted to the
proposed Shop Tenant, said option to renew or extend must increase the minimum
annual rental not less than fifteen percent (15%);
(iii) the intended use of the leased premises is "retail," or office
space consistent with a neighborhood shopping center, and does not violate any
existing exclusive or restrictive use covenant in any existing leases in the
Center within which the leased premises is located or any other agreement
affecting said Center;
66
(iv) the initial minimum annual rental shall be not greater than
115% of the then current market rental for similar space, and shall increase not
less than six percent (6%) every three (3) years;
(v) the new lease shall be categorized as being "triple net" and the
proposed Shop Tenant shall pay its pro rata share of all common area maintenance
costs (including a 15% administrative fee thereon), real estate taxes and
insurance;
(vi) the proposed Shop Tenant has a reasonable financial statement;
(vii) the proposed Shop Tenant has reasonable business experience
and expertise to operate a retail store;
(viii) the proposed new lease shall not include any type of
"exclusive or restrictive" use provision which could be applied to restrict the
use of space within the Center then or thereafter occupied by a tenant leasing
at least 5,000 square feet within the Center; and
(ix) the proposed Shop Tenant cannot unreasonably terminate its
lease during the first five (5) years of the lease term or otherwise include
terms more burdensome on the landlord than those applying under the form lease
currently used by the Partnership owning the Center.
"Title Company" means Lawyers Title Insurance Corporation, Branch
Office, Fort Lauderdale, Florida.
"Transfer Taxes" shall have the meaning assigned to such term in
Section 14(b).
"Utilities" shall have the meaning assigned to such term in Section
17(t).
"Violation" shall have the meaning assigned to such term in Section
17(b).
67
29. Exhibits. The parties acknowledge that this Contract is being executed
in advance of completion of all of the exhibits contemplated by the text of this
Contract. Swerdlow Seller and Purchaser agree to work together in good faith to
complete all said exhibits by the fifth (5th) business day after the date of
this Contract and to attach the same hereto in a manner reasonably acceptable to
all parties.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
68
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the date and year first above written.
SWERDLOW:
SWERDLOW REAL ESTATE GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SELLERS:
SREG OPERATING LIMITED PARTNERSHIP
By: Swerdlow Real Estate Group, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG OAKWOOD PLAZA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG OBC, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG HOLLYWOOD HILLS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
69
SREG CYPRESS CREEK, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG KENDALE, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG CROSS COUNTY, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SREG (MILLENIA) INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
PURCHASER:
PRICE ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President-
Acquisitions
70
EXHIBIT A
SCHEDULE OF CENTERS, PARTNERSHIPS
AND GENERAL PARTNERS
Partnership
(each a Delaware General Partner
Limited (each a Delaware
Center Name Property Location Partnership) corporation)
------------------- ------------------- ---------------- --------------------
Oakwood Plaza 0000 Xxxxxxx Xxxx., Xxxxxxx Xxxxx XXXX Xxxxxxx
Xxxxxxxxx, XX Limited Plaza, Inc.
Partnership
Oakwood Business 000 Xxxxxxx Xxxx, Xxxxxxx SREG OBC, Inc.
Center 100 and 000 Xxxxxxx Xxxxxxxx Xxxxxx
Xxxx., Xxxxxxx
Xxxxxxxxx, XX Partnership
Hollywood Hills 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx SREG Hollywood
Plaza (includes Blvd., and North Plaza Limited Hills, Inc.
Xxxx Xxxxx) Xxxx Xxxx, Xxxxxxxxxxx
Xxxxxxxxx, XX
Cypress Creek 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx SREG Cypress
Station Avenue Associates Creek, Inc.
Ft. Lauderdale, FL Limited
Partnership
Xxxxxxx Xxxxx Xxxxx 00000 Xxxxx Xxxxxxx Xxxxxxx Lakes SREG Kendale,
Drive Plaza Limited Inc.
Miami, FL Partnership
Cross County Plaza 4254 Okeechobee Cross County SREG Cross
Blvd. Associates County, Inc.
West Palm Beach, Limited
Florida Partnership
Millenia Plaza Orlando, FL Millenia Plaza SREG (Millenia)
Associates I Inc.
Limited
Partnership]
Exhibit A - Page 1 of 1
