Exhibit 10.12
AGREEMENT
BANK OF AMERICA, N.A.
("Seller")
and
AMERICAN FINANCIAL RESOURCE GROUP, LLC
("Purchaser")
Dated: AUGUST 7, 2002
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ..................................................................... 1
1. DEFINED TERMS ............................................................................. 1
2. [INTENTIONALLY OMITTED] ................................................................... 3
3. SALE AND PURCHASE OF PROPERTIES ........................................................... 4
4. PROPERTIES - REAL AND PERSONAL ASSETS ..................................................... 4
5. PURCHASE PRICE ............................................................................ 5
6. INTENTIONALLY DELETED ..................................................................... 6
7. RETAINED PREMISES LEASE; ADDITIONAL COMPENSATION .......................................... 8
8. SETTLEMENT ................................................................................ 10
9. TITLE ..................................................................................... 11
10. SERVICE AND MAINTENANCE CONTRACTS ......................................................... 13
11. DOCUMENTS TO BE DELIVERED BY SELLER AT SETTLEMENT ......................................... 13
12. DOCUMENTS TO BE DELIVERED BY PURCHASER AT SETTLEMENT ...................................... 14
13. POSSESSION ................................................................................ 15
14. ADJUSTMENTS ............................................................................... 15
15. EXPENSES ..................................................................................
16. DEFAULT ................................................................................... 16
17. RISK OF LOSS .............................................................................. 17
18. BROKERS ................................................................................... 18
19. FEE PROPERTIES "AS-IS." ................................................................... 18
20. DISCLAIMER ................................................................................ 18
21. DUE DILIGENCE PERIOD; PURCHASER'S ACCESS TO FEE PROPERTIES ................................ 21
22. NOTICES AND ASSESSMENTS: TAX APPEALS ...................................................... 23
23. NOTICES ................................................................................... 23
24. NO SURVIVAL ............................................................................... 23
25. FURTHER ASSURANCES ........................................................................ 23
26. ESTOPPEL CERTIFICATES; SNDA ............................................................... 24
27. MISCELLANEOUS ............................................................................. 24
28. PURCHASER'S REPRESENTATIONS ............................................................... 27
29. SELLER'S REPRESENTATIONS .................................................................. 27
30. INDEMNIFICATION ........................................................................... 28
31. CONFIDENTIALITY ........................................................................... 29
32. NO OFFER .................................................................................. 29
33. NO LIABILITY .............................................................................. 29
34. RADON NOTICE .............................................................................. 20
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TABLE OF CONTENTS
Page
35. ESCROW ....................................................................................
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AGREEMENT
THIS AGREEMENT ("Agreement"), made as of August 7, 2002, between BANK OF
AMERICA, N.A., a national banking association, having an address at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, XX0-000-00-00, Xxxxxxxxx, XX 00000 ("Seller"), and
AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware limited liability company,
having an address at 0000 Xxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Purchaser").
Preliminary Statement
WHEREAS, Seller owns various real properties more particularly described
on Exhibit A attached hereto (hereinafter collectively referred to as the
"Properties" and individually as a "Property"); and
WHEREAS, Seller desires to sell the Properties to Purchaser and Purchaser
desires to purchase the Properties from Seller, all on the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), Seller and Purchaser, intending
to be legally bound hereby, agree as follows:
1. Defined Terms. The following terms shall have the meanings set
forth below when used in this Agreement:
(a) "Due Diligence Period" means the period that ends seventy-five
(75) days after the date this Agreement is executed by Purchaser and Seller.
(b) "Leases" means those leases for tenant's occupying space in
the Properties as set forth on the Rent Roll (defined below) and including the
Retained Premises Lease for each Property.
(c) "Rent Roll" means the rent roll attached hereto as Exhibit K.
(d) "Retained Premises" means the aggregate rentable square feet
located in each Property as set forth on Exhibit B, which shall be leased by
Seller from Purchaser for a term commencing on the Settlement Date pursuant to
the terms of the Retained Premises Lease.
(e) "Retained Premises Lease" shall have the meaning given such
term in Section 7(a).
2. [Intentionally Omitted].
3. Sale and Purchase of Properties. On the terms and conditions
hereinafter provided, Seller shall convey to Purchaser, and Purchaser shall
acquire from Seller, Seller's right, title and interest in and to all of the
Properties. It is the intention of the parties that Seller shall convey, and
Purchaser shall acquire, all of the Properties. Purchaser shall have no right to
acquire some, but not all, of the Properties.
4. Properties - Real and Personal Assets.
(a) The conveyance to Purchaser by Seller of each Property
shall include Seller's fee interest in all those certain identified tracts or
parcels of land ("Parcels"), with the buildings ("Buildings") and all other
improvements erected on the Parcels and fixtures and equipment attached thereto,
all building plans, building licenses and permits to the extent transferable,
and warranties and guaranties to the extent transferable, together with all
rights, privileges, tenements, hereditaments, rights of way, easements,
appendages and appurtenances of such land, but specifically excluding the
following (the "Excluded Items"): all trade fixtures, equipment, furniture,
furnishings, appliances, supplies, records, documents, cash, coin, and other
items of moveable personal property relating to the operation of Seller's
business that may be situated upon the Parcels (including, without limitation,
all safe deposit boxes, safes, vaults, vault doors, signage, pylons, monuments,
alarms and security equipment, Automated Teller Machine ("ATM") machines
connected to or located within the Buildings or situated as freestanding
structures on the Parcels and ATM equipment, drive-through facilities and
equipment, telecommunication equipment, satellite dishes and antennas, teller
counters and equipment and under-counter steel, computers, computer terminals
and computer equipment, draperies, decorations, any office equipment (whether
leased or owned) located in the Buildings, artwork, and any personal property
belonging to any tenant occupying any portion of the Property. All of the
Excluded Items are hereby excluded from the Properties to be conveyed hereunder
and shall remain the property of Seller.
(b) Prior to the Settlement Date, Seller and Purchaser shall
identify any and all fixtures, equipment and other personal property included as
part of such Properties (collectively, "Personal Property") and allocate a
portion of the Purchase Price (as hereinafter defined) for such Properties to
the value of the Personal Property. If the parties cannot agree upon an
appropriate allocation, they shall retain Price Waterhouse Consulting or another
qualified consultant agreed to by Seller and Purchaser to advise them as to the
proper allocation of the Purchase Price. The cost of the allocation and
valuation report shall be divided equally by Seller and Purchaser and the
conclusions contained in the allocation and valuation report shall be binding on
Purchaser and Seller.
5. Purchase Price and Xxxxxxx Money Deposit.
(a) The total purchase price ("Purchase Price") of the
Properties shall be Thirty-Six Million Three Hundred Seventy-Five Thousand Six
Hundred Sixty-Nine Dollars
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($36,375,669.00). The Purchase Price shall be allocated among each Property as
set forth on Exhibit D attached hereto.
(b) As of the date hereof, Purchaser has deposited with
Commonwealth Land Title Insurance Company, 0000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, XX 00000 (the "Escrow Agent"), the sum of Two Hundred Fifty
Thousand Dollars ($250,000.00) (the "Xxxxxxx Money") as security for the
performance of Purchaser's obligations hereunder, which shall be held in escrow
and disbursed as herein provided. Any interest earned on the Xxxxxxx Money shall
be a part of the Xxxxxxx Money. If the sale of the Properties is consummated
pursuant to the terms of this Agreement, the Xxxxxxx Money shall be paid to
Seller and applied to the payment of the Purchase Price. If this Agreement is
terminated in accordance with the provisions of Section 9 or Section 21 of this
Agreement, the Xxxxxxx Money shall be immediately returned to Purchaser, and
neither party hereto shall have any further obligations under this Agreement,
except those provisions which specifically survive termination. In the event
Purchaser defaults under the terms of this Agreement, all Xxxxxxx Money shall be
immediately delivered by the Escrow Agent to Seller, and neither party shall
have any further obligations under this Agreement, except those provisions which
specifically survive termination.
6. (Intentionally Omitted).
7. Retained Premises Lease. Seller and Purchaser acknowledge that
Seller currently occupies space in portions of each of the Properties and
following Settlement will continue to occupy space in the Retained Premises. In
connection with the execution of this Agreement, Seller, as tenant, and
Purchaser, as landlord, shall enter into a separate Lease Agreement at
Settlement for the Retained Premises in each of the Properties in substantially
the form attached hereto as Exhibit C (the "Retained Premises Lease"). The rent
and other consideration to be paid by Seller to Purchaser for each of the
Retained Premises is set forth on Exhibit B. Seller and Purchaser agree to
negotiate the final terms of the Retained Premises Lease in good faith. If
Seller and Purchaser are unable to agree upon the final terms and conditions of
the Retained Premises Lease prior to the expiration of the Due Diligence Period,
either party may terminate this Agreement by delivering written notice to the
other prior to the expiration of the Due Diligence Period, in which event the
parties shall have no further liabilities or obligations hereunder, except as to
those obligations which expressly survive the termination of this Agreement.
8. Settlement. Settlement shall be the meeting at which Seller
transfers ownership of the Properties to Purchaser by deed and Purchaser pays
the Purchase Price (as adjusted in accordance with this Agreement) to Seller
("Settlement"). Settlement shall occur and be completed thirty (30) days after
the expiration of the Due Diligence Period ("Settlement Date"), time being of
the essence. Settlement shall occur at the office of Xxxxxx, Xxxxx & Bockius
LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Pennsylvania, or at such other place as
Seller and Purchaser may mutually agree.
9. Title.
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(a) As to each Property, the title conveyed shall be good and
indefeasible and such as will be insured by any reputable title insurance
company at regular rates, free and clear of all liens, judgments and similar
encumbrances, subject however to:
(i) the state of facts shown on an accurate survey of
the Property, other than a matter which would constitute an Objection (as
hereinafter defined) that Purchaser does not waive pursuant to Section 9(c)
below;
(ii) zoning regulations, municipal building restrictions
and all other laws, ordinances, regulations and restrictions of any duly
constituted public authority enacted prior to the Settlement Date;
(iii) grants to governmental entities or to utility and/or
power companies, the right of the public in sidewalks and abutting public
rights-of-way, and easements given to the public for water course maintenance,
slope rights or sight rights;
(iv) the lien of current taxes and assessments not yet
due and payable;
(v) special taxes and assessments becoming a lien on or
after the Settlement Date;
(vi) if applicable, the Leases, and any other leases of
the Property entered into with Purchaser's consent pursuant to Section 10(b)
below;
(vii) standard exceptions set forth in the form of title
insurance policy of the title insurance company selected by Purchaser; and
(viii) any other matter which would constitute an Objection
(as hereinafter defined) that Purchaser waives pursuant to Section 9(c) below,
provided that with respect to any Monetary Objection (as hereinafter defined)
against Seller, same shall not constitute an Objection if a title insurance
company authorized to do business in the state in which the affected Property is
located agrees that it will insure title free of such Monetary Objection or with
affirmative insurance against the enforcement of such Monetary Objection against
the affected Fee Property, and such removal or affirmative coverage does not
require Purchaser to defend an action brought on any such judgment.
(b) The term "Objection" shall mean any matter shown on the
survey obtained by Purchaser or which would be shown on a current survey or any
covenant, easement, restriction or other title defect or encumbrance (including
any lien), other than the matters referred to in Section
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9(a) above, which renders title to the Property either unmarketable or
uninsurable at regular rates, materially reduces the value of the Property or
impairs or restricts its use for the uses contemplated by the Purchaser.
(c) As to each Property, Purchaser shall order, at Purchaser's
expense, a title commitment from a title insurance company authorized to do
business in the state in which such Property is located and, if so desired by
Purchaser, a survey at Purchaser's expense. Prior to the expiration of the Due
Diligence Period, Purchaser shall deliver to Seller a copy of the title
commitment and, if applicable, survey for such Property, along with written
notice of any Objection ("Title Objection Notice") to Seller. Purchaser shall be
deemed to have waived any Objection existing on the last day of the Due
Diligence Period and not specified in the Title Objection Notice. The
out-of-pocket expenses incurred by Purchaser for the title commitment and survey
shall be subject to a credit to be provided by Seller at Settlement as provided
in Section 15(b) hereafter.
(d) Seller shall have no obligation to bring any action or
proceeding or otherwise to incur any expense or liability (contingent or
otherwise) to remedy an Objection; provided, however, that if an Objection is a
monetary lien, judgment or encumbrance of an ascertainable amount (a "Monetary
Objection"), Seller shall be obligated at or prior to the Settlement Date, to
cause such Monetary Objection to be satisfied or to cause the title insurance
company to insure title free of such Monetary Objection or with affirmative
insurance against the enforcement of such Monetary Objection by delivery of an
acceptable indemnity. If Seller is unable to convey title to a Property in
accordance with this Agreement or does not elect to remedy an Objection (other
than a Monetary Objection), Purchaser may elect either (i) to accept such title
as Seller is able to convey at Settlement, without any reduction of the Purchase
Price or any credit or allowance on account thereof or any other claim against
Seller, or (ii) to terminate this Agreement in its entirety as to all of the
Properties. Purchaser shall not be entitled to elect to close on less than all
of the Properties regardless of whether the Objections relate to less than all
of the Properties. Such election shall be made by Purchaser within ten (10) days
after written notice from Seller to Purchaser stating that Seller is unable to
convey title in accordance with this Agreement or does not elect to remedy an
Objection (other than a Monetary Objection), such notice from Seller to be given
within ten (10) days after its receipt of the Title Objection Notice, in which
event this Agreement shall be null and void and the parties shall have no
further liabilities or obligations hereunder, except as to those obligations
which expressly survive the termination of this Agreement.
(e) Although Seller is not obligated to do so, Seller shall
have the right to remedy any Objection with respect to a Property on written
notice given to Purchaser within ten (10) days after Seller's receipt of the
Title Objection Notice. For the purpose of remedying an Objection, Seller shall
have the right to one or more adjournments of the Settlement for an aggregate
period not to exceed forty-five (45) days. If Seller fails to remedy the
Objection prior to the adjourned Settlement, the provisions of Section 9(d)
above shall be applicable, and Seller shall be deemed to have elected not to
remedy the Objection.
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(f) The sale includes whatever right, title and interest Seller
has in and to the equipment and fixtures presently on each Property which are
appurtenant to or used in the operation thereof (subject to the exclusions set
forth in Section 4 above). Seller makes no representations as to the quality,
kind or condition thereof, and Purchaser agrees to take the same "WHERE-IS" and
"AS-IS."
10. Service and Maintenance Contracts.
(a) Seller has entered into certain maintenance and service
contracts for certain of the Properties, all of which shall be terminated at or
prior to the Settlement for each such Property. Seller shall indemnify, defend
and hold Purchaser harmless from and against all claims for payment by such
contractors for services with respect to such Property rendered prior to the
date of the Settlement for such Property. The foregoing provisions of this
Section 10(a) shall survive the Settlement for such Property and delivery of the
Deed (as hereinafter defined) or Assignment (as hereinafter defined), as
applicable.
(b) Seller hereby agrees that from and after the date hereof,
Seller shall not enter into any leases of or contracts for any Property, the
term of which leases or contracts extend beyond the Settlement for such property
without Purchaser's prior written consent, which consent may be given or
withheld in Purchaser's sole discretion. Purchaser shall object to any request
within five (5) business days of presentment by Seller or Purchaser shall be
deemed to have consented to the requested lease or contract.
11. Documents to be Delivered by Seller at Settlement. At Settlement,
Seller shall deliver to Purchaser:
(a) for each Property, the customary form of special or limited
warranty deed (such that Seller shall only warrant for claims arising by,
through or under Seller, but none others) for the state for which the Property
is located (collectively, the "Deeds") shall be duly executed by Seller, be in
form for recordation, and be accompanied by completed realty transfer tax forms
(to be provided by Purchaser's title insurance company);
(b) for each Property, two (2) counterpart originals of an
assignment and assumption of leases in the form attached hereto as Exhibit E
("Assignment"), pursuant to which Seller shall assign and Purchaser shall assume
Seller's interest as lessor in the Leases;
(c) for each Property, a xxxx of sale in the form attached
hereto as Exhibit F ("Xxxx of Sale"), pursuant to which Seller shall sell and
transfer the personal property at each Property subject to this Agreement to
Purchaser;
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(d) a closing statement (to be prepared by Purchaser's title
insurance company) showing the applicable Settlement adjustments, duly executed
by Seller;
(e) FIRPTA affidavit in the form attached hereto as Exhibit G
and the customary form of mechanic's lien and possession affidavit, each duly
executed by Seller, together with such documents and other evidence as is
reasonably required by Purchaser's title insurance company to establish that
Seller is authorized to execute the closing documents. A California Form 590
shall also be provided for each Property located in California;
(f) a Certificate of Seller in the form attached hereto as
Exhibit H, confirming the truth, accuracy and completeness of the
representations and warranties of Section 29 hereof with respect to Seller;
(g) a certified copy of the Bylaws adopted by the Board of
Directors of Seller confirming the authority of certain officers to execute
documents and a certified statement of incumbency of the officer of Seller
executing the documents described in this Section 11;
(h) originals, to the extent in Seller's possession, of
surveys, permits, licenses, leases, subleases, warranties and guarantees covered
by this Agreement;
(i) for each Property, four (4) counterpart originals of the
Retained Premises Lease in the form provided in Section 7 above; and
(j) for each Property, two (2) counterpart originals of the
SNDA (as hereinafter defined).
12. Documents to be Delivered by Purchaser at Settlement. At
Settlement on each Property, Purchaser shall deliver to Seller:
(a) the Purchase Price as described in Section 5, as adjusted
pursuant to Sections 14, 15 and 17, by wire transfer of immediately available
funds;
(b) for each Property, two (2) counterpart originals of the
Assignment described in Section 11(b) above duly executed by Purchaser;
(c) a closing statement (to be prepared by Purchaser's title
insurance company) showing the applicable Settlement adjustments, duly executed
by Purchaser;
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(d) a Certificate of Purchaser or Purchaser's permitted assignee,
in the form attached hereto as Exhibit I, confirming the truth, accuracy and
completeness of the representations and warranties of Section 28 hereof with
respect to Purchaser or such assignee, as applicable, and duly executed by
Purchaser or Purchaser's permitted assignee;
(e) for each Property, four (4) counterpart originals of the
Retained Premises Lease in the form provided in Section 7 above; and
(f) for each Property, two (2) counterpart originals of the SNDA (
as hereinafter defined), duly executed by Purchaser's lender.
13. Possession. At Settlement on each Property, Seller shall give
Purchaser possession of the Property, free and clear of all tenants except for
the Leases (including the Retained Premises Lease) and such other permitted
leases pursuant to Section 10(b).
14. Adjustments.
(a) At Settlement, Purchaser and Seller shall adjust for real
estate taxes and assessments on the Properties, municipal water and sewer
charges, fuel, utility charges, rent, and lease liabilities, such adjustments to
be calculated as of 11:59 PM on the day immediately preceding Settlement. In
addition, Seller shall account to and turn over to Purchaser any and all
security deposits paid by existing tenants of the Properties. Prior to the
Settlement, Seller shall have paid all service providers under the service and
maintenance contracts for the Properties for services rendered up to the day
prior to the Settlement. If the Settlement shall occur before the tax rate or
assessed valuation of a Property is fixed for the then-current year, the
apportionment of real estate taxes for the year of Settlement shall be upon the
basis of the most recent tax bills and the tax rate for the most recent tax year
applied to the latest assessed valuation. There shall be no post-Settlement
reconciliations or reprorations.
(b) All rents (including operating expense reimbursements and
similar charges (collectively, "Tenant Pass-Throughs"), credits, security
deposits and set-offs due or required to be paid under or by reason of the
Leases shall be adjusted by appropriate credit to the Seller or Purchaser (as
the case may be) on the Settlement Date. Tax contributions shall be pro-rated as
and when received. If, at the Settlement Date, any tenant is in arrears in the
payment of rents, Seller will disclose the same to Purchaser in writing and such
amounts shall not be adjusted on the Settlement Date. Prior to the Settlement
Date, Seller shall use Seller's current business practices to collect such
arrearages. If Purchaser shall collect any such arrearages within six (6) months
after the Settlement Date, then Purchaser shall turn over to Seller the
arrearages so collected, less the reasonable cost of collection thereof;
provided, however, Seller may continue to seek to collect the arrearages by
legal action following the Settlement Date. All rents collected by Purchaser
after the Settlement Date (except for amounts specifically billed and paid
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as end of year reconciliation payments for Tenant Pass-Throughs, which shall be
separately accounted for and allocated, pro rata, between Seller and Purchaser
as their interest may appear) shall be first applied to rents payable after the
Settlement Date and only the excess thereof shall be paid over to Seller on
account of the arrearages. To the extent that items to be apportioned hereunder
may be required to be paid directly by a tenant under its Lease, same shall not
be apportioned, provided, however, that such items shall have been paid by such
tenant currently through the month including the Settlement Date. The provisions
of this subparagraph (b) shall survive the Settlement and the delivery of the
Deeds and Assignments.
(c) Seller shall pay at or prior to Settlement all brokerage fees
and commissions for existing Leases entered into prior to the date hereof. If
Settlement takes place, all brokerage fees and commissions, if any, for
renewals, extensions and expansions of existing Leases exercised after the date
hereof, and for new Leases and modifications of existing Leases entered into
after the date hereof and approved by the Purchaser as provided in Section 10(b)
above, shall be paid by the Purchaser.
15. Expenses.
(a) At Settlement, Purchaser shall pay the realty transfer taxes
applicable to the conveyance of the Properties, if any, all title insurance
search fees and premiums, and all escrow and closing charges of the settlement
or closing agent. Seller shall pay any recording fees for the satisfaction of
any mortgages, liens or judgments affecting any Property, and Purchaser shall
pay all recording fees in connection with the conveyances of the Properties.
Each party shall bear all other fees, charges and expenses incurred by it,
without contribution from the other, in connection with this transaction.
(b) Notwithstanding the provisions of subsection (a) above, in the
event of a Settlement and if and only if the subject transaction closes, Seller
shall provide Purchaser with a credit against the Purchase Price for the actual,
out-of-pocket amounts paid by Purchaser to unaffiliated third parties for the
following closing costs (the "Approved Closing Costs"), not to exceed the
amounts set forth below for the individual items specified:
(i) Real estate brokerage commission in an aggregate amount not to
exceed $257,00.00;
(ii) Survey expenses in an amount not to exceed $6,200.00 per
Property or an aggregate of $111,600.00 for all Properties;
(iii)Phase I Environmental Study expenses in an amount not to
exceed $5,000.00 per Property or an aggregate of $90,000.00
for all Properties;
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(iv) Structural and physical inspection expenses in an amount not
to exceed $6,500.00 per Property or an aggregate of
$117,000.00 for all Properties;
(v) Purchaser's legal expenses for this transaction in an amount
not to exceed $275,000.00;
(vi) All fees and costs associated with any loan obtained by
Purchaser (including, without limitation, loan discount fees;
points; appraisal fees; underwriting fees; application fees;
closing fees; document preparation fees; consultant fees;
lender's title insurance; lender's attorney's fees; transfer,
documentary and recordation taxes; and recording fees) in an
amount not to exceed the lesser of one percent (1.0%) of the
principal amount of the loan obtained by Purchaser or
$270,000.00;
(vii) Reasonable and customary title commitment and title insurance
expenses and escrow and closing charges of the settlement
agent;
(viii)Transfer taxes and recording fees as required by applicable
law; and
(ix) Miscellaneous expenses approved in advance by Seller in an
aggregate amount not to exceed $100,000.00.
Seller shall have no obligation to provide a credit to Purchaser for any costs
associated with this transaction other than those specifically set forth above
and subject to the individual limitations set forth above and in no event shall
the Approved Closing Costs in connection with this transaction exceed Two
Million Twenty-Five Thousand Two Hundred Eight-Nine Dollars ($2,025,289.00) in
the aggregate for all Approved Closing Costs. Seller shall have no obligation to
reimburse or otherwise pay Purchaser for any Approved Closing Costs incurred by
Purchaser or any third parties engaged by Purchaser in the event a Settlement
does not occur, except as otherwise provided in Section 16(a). Any expenses
incurred by Purchaser in excess of any of the individual limitations set forth
above or in excess of the aggregate amount specified above for all Approved
Closing Costs shall be the sole responsibility of Purchaser. Evidence of the
actual amounts paid or to be paid by Purchaser for the aforesaid items shall be
provided by Purchaser to Seller at Settlement either in the form of paid
receipts or invoices or by line items to be disbursed at Settlement as shown on
the Settlement Statement together with detailed invoices supporting such unpaid
items.
16. Default.
(a) If Seller breaches this Agreement prior to or at Settlement,
the sole liability of Seller shall be and the sole remedy of Purchaser shall be
limited to either (i) payment to Purchaser, as
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liquidated damages, for each Property for which Settlement has not occurred and
for which Purchaser has performed some or all of its investigations pursuant to
Sections 9 and 21, the sum equal to Purchaser's actual, reasonable out-of-pocket
costs and expenses incurred subsequent to the date of this Agreement (to the
extent documented to Seller's reasonable satisfaction by copies of paid invoices
and bills and canceled checks) for title, survey and other due diligence reports
and evaluations, whereupon Purchaser shall deliver to Seller complete copies
(with all appendices and exhibits) of all (interim drafts as well as final
reports, if any) due diligence reports, evaluations, investigations, surveys and
title searches in Purchaser's possession or control (without representation or
warranty and with a disclaimer of reliance), and this Agreement shall become
null and void and the parties shall have no further liabilities or obligations
hereunder; or (ii) a suit by Purchaser for specific performance only.
(b) If Purchaser breaches this Agreement prior to or at any Settlement,
Seller shall be entitled to terminate this Agreement in its entirety and to
immediately receive as liquidated damages the Xxxxxxx Money being held by Escrow
Agent. In addition, Purchaser shall deliver to Seller complete copies (with all
appendices and exhibits) of all (interim drafts as well as final reports, if
any) due diligence reports, evaluations, investigations, surveys and title
searches in Purchaser's possession or control (without representation or
warranty and with a disclaimer of reliance). The provisions of this subparagraph
(b) shall survive the expiration or earlier termination of this Agreement. The
parties acknowledge that the aforesaid liquidated damages are reasonable and do
not constitute a penalty and are being agreed upon due to the difficulty of
calculating the actual amount of damages that Seller might sustain in the event
of a default by Purchaser and termination of this Agreement.
Initials as to Section 16(b): _________ Seller
Initials as to Section 16(b): _________ Purchaser
(c) Notwithstanding anything to the contrary contained in Section
16(a), in the event Seller's breach is caused by or arises out of regulatory
issues, Seller shall have no liability whatsoever to Purchaser; this Agreement
shall become null and void in its entirety, and the parties shall have no
further liabilities or obligations hereunder, except for those obligations which
expressly survive the termination of this Agreement.
17. Risk of Loss. If a condemnation proceeding is instituted
against a Property or any portion thereof, or if a Property is substantially
damaged by fire or other casualty, prior to Settlement, Purchaser may terminate
this Agreement in its entirety upon written notice to Seller, whereupon the
parties shall have no further liabilities or obligations hereunder, except for
those obligations which expressly survive the termination of this Agreement. If
Purchaser does not so terminate this Agreement in the case of condemnation or
substantial damage by fire or other casualty, or if in the case of fire or other
casualty to a Property there is less than substantial damage, then in each of
such cases, this Agreement shall continue to be effective as to all of the
Properties,
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and Seller shall assign to Purchaser at Settlement all of Seller's right to
receive any award for such condemnation or insurance proceeds as a result of
such damage (as the case may be), together with all of Seller's rights to
litigate such claim and to negotiate a settlement with the condemning authority
or the insurance carrier; provided, however, to the extent Seller self-insures
(including a deductible or any under-insured amount) against a casualty, then
the Purchase Price for the affected Property shall be adjusted to reflect a
credit in favor of Purchaser for the amount of such under-insured amount. For
purposes of this Section, a Property shall be deemed to have been "substantially
damaged" if such damage occurs at a Property that Seller is responsible to
restore and such restoration either will require more than one-hundred twenty
(120) days to complete or will cost in excess of twenty-five percent (25%) of
the Purchase Price of such Property. Seller agrees to maintain its current
property insurance policies on the Properties during the pendency of this
Agreement.
18. Brokers. Each party represents and warrants to the other that it has
not dealt with any real estate broker, agent or finder in connection with this
Agreement, other than Xxxxxxxx Xxxx Corporate Services, Inc. ("Seller's
Broker"). The parties agree to indemnify and hold one another harmless based
upon their actions and dealings from any claims or causes of action concerning
brokerage or finder's fees or commissions. If any claim against Seller is
asserted by any person, firm or corporation claiming a commission and/or
finder's fee with respect to the transactions contemplated by this Agreement,
and resulting from any act, representation or promise of Purchaser, Purchaser
shall indemnify, defend and save harmless Seller from such claim resulting from
any act, representation or promise of Purchaser. If any claim against Purchaser
is asserted by any person, firm or corporation claiming a commission and/or a
finder's fee with respect to the transactions contemplated by this Agreement,
and resulting from any act, representation or promise of Seller, Seller shall
indemnify, defend and save harmless Purchaser from such claim resulting form any
act, representation or promise of Seller. The terms of this Section 18 shall
survive the Settlement on each Property and the delivery of the Deed or
Assignment, as applicable, and shall survive the expiration or earlier
termination of this Agreement. Seller shall pay any brokerage fee or commission
that may be due to Seller's Broker in connection with this transaction pursuant
to a separate agreement between them.
19. Properties "AS-IS." Purchaser either (a) has heretofore inspected
each of the Properties, or caused an inspection thereof to be made on
Purchaser's behalf, or (b) will have done so prior to the end of the Due
Diligence Period (as hereinafter defined) or (c) will have waived its right to
do so as hereinbelow set forth, so that, by the end of the Due Diligence Period
(as hereinafter defined), Purchaser shall be (or shall have had the opportunity
to become) acquainted with the condition of the Properties and the improvements
located therein. Purchaser agrees to take the Properties "AS-IS," "WHERE-IS,"
and in their present condition, subject to reasonable use, wear and tear, and
(subject to Section 17 above) damage by fire and other casualties, and (subject
to Section 17 above) due to a taking by condemnation or eminent domain, between
the date hereof and the Settlement on each of the Properties. Until the
Settlement, Seller agrees to maintain each Property in its present condition,
reasonable wear and tear excepted. The provisions of this Section 19 shall
survive the Settlement and the delivery of the Deeds and Assignments.
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20. Disclaimer.
(A) PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE WARRANTY OF TITLE AS SET OUT IN THE DEED), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF ANY
OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(B) THE INCOME TO BE DERIVED FROM ANY OF THE PROPERTIES; (C) THE SUITABILITY OF
ANY OF THE PROPERTIES FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR
ANYONE ELSE MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY ANY OF THE
PROPERTIES OR THEIR OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF ANY OR THE PROPERTIES; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION
OR MATERIALS, IF ANY, INCORPORATED INTO ANY OF THE PROPERTIES; (G) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE PROPERTIES; OR (H) ANY
OTHER MATTER WITH RESPECT TO ANY OF THE PROPERTIES, AND SPECIFICALLY, THAT
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION, ZONING OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING THE EXISTENCE IN OR ON ANY OF THE PROPERTIES OF HAZARDOUS MATERIALS
(AS DEFINED BELOW). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN
GIVEN THE OPPORTUNITY TO INSPECT EACH PROPERTY, PURCHASER IS RELYING SOLELY ON
ITS OWN INVESTIGATION OF EACH PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO
BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO EACH PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO ANY OF THE PROPERTIIES, OR THE OPERATION THEREOF,
FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
PROPERTIES AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH
ALL FAULTS. ALL PROVISIONS OF THIS ARTICLE SHALL SURVIVE SETTLEMENT OR THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT WITHOUT SETTLEMENT, AS
APPLICABLE.
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(B) "Hazardous Materials" shall mean any substance which is or
contains (i) any "hazardous substance" as now or hereafter defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. (S) 9601 et. seq.) "CERCLA") or any regulations
promulgated under or pursuant to CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act, as amended (42
U.S.C. (S) 6901 et seq.) ("RCRA") or regulations promulgated under or pursuant
to RCRA; (iii) any substance regulated by the Toxic Substances Control Act, as
amended (15 U.S.C. (S) 2601 et seq.); (iv) gasoline, diesel fuel, or other
petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any
form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii)
radon gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under Environmental
Requirements (as hereinafter defined) or the common law, or any other applicable
laws relating to each Property. Hazardous Materials shall include, without
limitation, any substance, the presence of which on each Property, (A) requires
reporting, investigation or remediation under Environmental Requirements; (B)
causes or threatens to cause a nuisance on the Property or adjacent property or
poses or threatens to pose a hazard to the health or safety of persons on the
Property or adjacent property; or (C) which, if it emanated or migrated from the
Property, could constitute a trespass.
(C) "Environmental Requirements" shall mean all laws, ordinances,
statutes, codes, rules, regulations, agreements, judgments, orders, and decrees,
now or hereafter enacted, promulgated, or amended, of the United States, the
states, the counties, the cities, or any other political subdivisions in which
the Property is located, and any other political subdivision, agency or
instrumentality exercising jurisdiction over the owner of the Property, the
Property or the use of the Property, relating to pollution, the protection or
regulation of human health, natural resources, or the environment, or the
emission, discharge, release or threatened release of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, without limitation, ambient air,
surface, water, ground water or soil).
(D) Purchaser acknowledges that, subject to the termination rights
set forth in Section 21(b), Purchaser shall accept all Properties (including all
improvements located thereon) at Settlement in their AS IS physical condition
WITH ALL FAULTS, including, without limitation, with the presence of Hazardous
Materials thereon or therein. Purchaser, on behalf of itself and its successors
and assigns, hereby waives, releases, acquits and forever discharges Seller its
current and former officers, directors, shareholders, employees, agents,
attorneys, representatives, and any other persons acting on behalf of Seller and
the successors and assigns of any of the preceding, of and from any and all
claims, actions, causes of action, demands, rights, damages, costs, expenses or
compensation whatsoever, direct and indirect, known or unknown, foreseen or
unforeseen, which Purchaser or its successors or assigns now has or which may
arise in the future on account of or in any way related to or in connection with
any past, present, or future physical characteristic or condition of each
Property or the improvements thereon, including, without limitation, any
Hazardous Materials in, at, on, under or related to the Property or the
improvements thereon or any violation or potential violation of any
Environmental Requirement applicable thereto and further including, without
limitation, any claim for contribution or indemnification arising under any
Environmental Requirements, common law or otherwise. Notwithstanding anything to
the contrary
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set forth herein, this release shall survive the Settlement and the expiration
or earlier termination of this Agreement.
This release includes claims of which Purchaser is presently unaware or
which Purchaser does not presently suspect to exist which, if known by
Purchaser, would materially affect Purchaser's release to Seller. Purchaser
specifically waives the provision of California Civil Code Section 1542, which
provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected the
settlement with the debtor."
(E) The provisions of this Section 20 shall survive the Settlement
and the delivery of the Deeds and Assignments.
21. Due Diligence Period; Purchaser's Access to Properties. During the
Due Diligence Period, Purchaser shall be granted access to each of the
Properties in order to perform such due diligence review and analysis of the
Properties as Purchaser deems necessary including, without limitation, to
investigate, review, survey and physically inspect each Property, to obtain a
title search and survey, to conduct Phase I environmental studies and
engineering studies of each Property as described below, and to review the
Leases being assigned to Purchaser.
(a) During the Due Diligence Period for each Property, as same may
be extended with respect to such Property pursuant to Sections 21(b) hereof,
Purchaser, its employees and agents, at Purchaser's sole cost and expense, shall
have the right to enter upon such Property to inspect such Property. Purchaser
shall give Seller at least 48 hours prior written notice of its desire to enter
upon the Property and shall coordinate such entry and inspection with Seller so
that the entry is at a mutually convenient time. Purchaser shall conduct such
inspections in a manner which shall not interfere with Seller's business
operations on the Property. Prior to each such entry, Purchaser shall provide
certificates of insurance to Seller evidencing liability insurance in the
minimum amount of $2,000,000.00 combined per occurrence limit carried by
Purchaser and/or Purchaser's agents in order to insure any loss arising out of
or in connection with entry upon the Property. The aforesaid insurance shall be
issued by an insurance company licensed in the state where the Property is
located and said insurance company shall be acceptable to Seller. Upon
completion of any inspections, Purchaser, shall restore the Property to the
condition in which it existed prior to said inspections. Purchaser shall and
hereby does indemnify, defend, and save harmless Seller from and against any and
all claims arising out of the entry on and inspection of each and every Property
by Purchaser and/or Purchaser's employees and agents, including, without
limitation, Seller's attorneys' fees and costs. Notwithstanding anything
contained in this Agreement to the contrary, the terms of this subsection shall
survive (i) Settlement on such Property and the delivery of the Deed, and (ii)
the expiration or earlier termination of this Agreement.
(b) Prior to the expiration of the Due Diligence Period, if
Purchaser's environmental consultant, based on records and other documentation
obtained during its Phase I
15
environmental investigation ("Phase I Study"), determines that a Phase II
environmental study ("Phase II Study") is necessary with respect to a Property,
Purchaser shall either perform the Phase II Study at Purchaser's sole cost and
expense or terminate this Agreement within ten (10) days of Purchaser's receipt
of the Phase I Study (but in no event beyond the expiration of the Due Diligence
Period), in which event this Agreement shall terminate in its entirety and be
null and void, except for those obligations which expressly survive the
termination of this Agreement. If Purchaser obtains a Phase II Study for such
Property and provides a copy thereof to Seller during the Due Diligence Period
and if the Phase II Study identifies one or more environmental conditions
requiring actual remediation and abatement (as opposed to further testing),
then, within ten (10) days after Purchaser delivers the Phase II Study to
Seller, Seller, at its sole election, shall either (i) agree to remediate and
xxxxx the disclosed environmental condition(s) at Seller's sole cost and expense
in conformity with all applicable Environmental Requirements or (ii) this
Agreement shall automatically terminate in its entirety and be null and void,
except for those obligations which expressly survive the termination of this
Agreement. Unless Seller notifies Purchaser during such ten (10) day period of
Seller's election to remediate and xxxxx the disclosed environmental
condition(s), Seller shall be deemed to have elected to terminate this Agreement
in its entirety as expressed in clause (ii) above. Should Purchaser fail to
provide Seller with a copy of the Phase II Study prior to the expiration of the
Due Diligence Period, Purchaser shall be deemed to have accepted the condition
of the Property and Seller shall have no obligation to perform any remediation,
abatement or further testing of the Property. Unless the Agreement is terminated
by Seller as aforesaid, the Due Diligence Period and Settlement automatically
shall be extended for such time as is necessary for Seller or Purchaser, as
applicable, to complete the remediations described above. In the event of a
termination of this Agreement as provided herein, Purchaser shall be solely
responsible for all of Purchaser's due diligence and investigation costs and
expenses.
(c) [Intentionally Omitted].
(d) Within five (5) days following the execution date of this
Agreement, Seller shall make available to Purchaser for inspection and copying
at Purchaser's expense all documents and records relating to the Properties
which to Seller's best knowledge, Seller has in its possession, such documents
to be made available to Purchaser at the location or locations where such
documents are kept in the ordinary course of Seller's business.
22. Notices and Assessments: Tax Appeals.
(a) Seller shall (i) comply with the requirements of any and all
notices relating to each Property which may be issued by municipal or other
public authorities prior to the date of this Agreement and (ii) pay for all work
and improvements done or ordered to be done prior to the date of this Agreement
by any such authority which results in the imposition of a confirmed lien
against a Property prior to Settlement. If Settlement takes place as to such
Property, all other requirements and notices shall be complied with by Purchaser
and all other work or improvements done or ordered done shall be performed and
paid for Purchaser.
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(b) Seller agrees that from and after Seller's execution of this
Agreement that Seller will not file any real estate tax assessment appeal with
respect to any Property prior to Settlement on such Property without Purchaser's
prior written consent.
23. Notices. All notices hereunder shall be in writing and shall be deemed
to have been properly given if personally delivered, sent via facsimile or sent
by private overnight express carrier, such as Federal Express, next business day
delivery, charges prepaid, addressed to Seller at Bank of America, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, XX0-000-00-00, Xxxxxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxxxxx, facsimile number (000) 000-0000; with a copy to Bank of America,
N.A., 000 Xxxx Xxxxxx, XX0-000-00-00, Xxxxxx, XX 00000, Attention: Xxxxxxx Xxxx,
Esquire, facsimile number (000) 000-0000; addressed to Purchaser at 0000 Xxx
Xxxxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx. Xxxxxxxx Xxxxxxxx, facsimile
number (000) 000-0000; with a copy to Xxxxxx, Xxxxx Xxxxxxx LLP, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx Xx., Esquire,
facsimile number (000) 000-0000; and addressed to Escrow Agent at Commonwealth
Land Title Insurance Company, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX
00000, Attention: Xxxxx X. Xxxxxx, facsimile number (000) 000-0000. Notices by
the parties may be given on their behalf by their respective counsel. Notice
shall be deemed to have been given upon the date of delivery, if personally
delivered, or sent via facsimile or one business day after the date of deposit
if sent by private overnight express carrier, next business day delivery.
24. No Survival. Except as otherwise provided, none of the provisions of
this Agreement shall survive any Settlement and delivery of any of the Deeds or
Assignments, as applicable.
25. Further Assurances. From time to time and at the request of either
Seller or Purchaser (whether before, at or after the Settlement), the other
party shall execute, acknowledge and deliver such other and further documents as
the requesting party may reasonably request to effectuate the provisions of this
Agreement. The provisions of this Section 25 shall survive the expiration or
earlier termination of this Agreement.
26. Estoppel Certificates; SNDA.
(a) At Settlement, Seller shall, as tenant under the Retained
Premises, execute and deliver to Purchaser and Purchaser's lender, a tenant
estoppel in substantially the form attached as Exhibit J hereto ("Tenant
Estoppel"). Within ten (10) days of Purchaser's receipt of the Rent Roll,
Purchaser shall notify Seller in writing of those tenant's listed on the Rent
Roll that Purchaser shall require a Tenant Estoppel and Seller shall use
commercially reasonably efforts to obtain and deliver to Purchaser and
Purchaser's lender during the Due Diligence Period, Tenant Estoppels executed by
at least eighty-five percent (85%) of the tenants under the Leases identified by
Purchaser in Purchaser's notice, provided that Seller obtains and delivers to
Purchaser and Purchaser's lender, at least one Tenant Estoppel from a tenant in
each Property that contains third-party tenants. In the event Seller is unable
to deliver to the requisite
17
number of Tenant Estoppels to Purchaser and Purchaser's lender, which Tenant
Estoppels contain no material adverse discrepancies from the information set
forth on the rent roll attached as Exhibit K hereto, Purchaser's sole remedy
shall be to terminate this Agreement in its entirety by written notice to Seller
prior to the expiration of the Due Diligence Period, in which event the parties
shall have no further liabilities or obligations hereunder, except for those
obligations which expressly survive the termination of this Agreement. The
phrase "commercially reasonable efforts" as used in this Section does not
require Seller to declare a default or terminate any of the Leases or initiate
any litigation to compel the delivery of a Tenant Estoppel.
(b) Seller shall, as tenant under the Retained Premises, execute and
deliver to Purchaser at Settlement a Subordination, Non-Disturbance and
Attornment Agreement for each Retained Premises Lease in the form attached
hereto as Exhibit L ("SNDA"). Purchaser shall obtain the execution of each SNDA
by Purchaser's lender and deliver the same to Seller at Settlement.
27. Miscellaneous.
(a) This Agreement shall not be recorded in the office for the
recording of deeds or in any other office or place of public record. Prior to
Settlement, this Agreement shall not be deemed or construed to give Purchaser
any equitable ownership of, or title to, any Property.
(b) This Agreement and the exhibits attached hereto contain the entire
agreement between Seller and Purchaser and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind or nature whatsoever. This Agreement may be modified only
by an agreement in writing between the parties hereto.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, personal and legal
representatives, successors and permitted assigns; provided, however, that
Purchaser shall not assign or otherwise transfer this Agreement without the
prior written consent of Seller, which Seller may grant or deny in its sole
discretion. Notwithstanding anything to the contrary in the preceding sentence,
Purchaser, may, with Seller's prior written consent, not to be unreasonably
withheld, assign this Agreement in its entirety to a partnership, limited
liability company or corporation which is an "Affiliate" of Purchaser and in
which Xxxxxxxx Xxxxxxxx is the principal. Purchaser's request for consent to the
assignment to an Affiliate must be accompanied by evidence satisfactory to
Seller of the relationship among Purchaser, such Affiliate, and Xxxxxxxx
Xxxxxxxx. For purposes hereof, the term "Affiliate" shall mean a partnership,
limited liability company, or corporation that is owned by or is under common
control and ownership with, Purchaser. In no event shall any assignment of this
Agreement relieve Purchaser named herein from liability hereunder.
(d) This Agreement shall be governed and construed in accordance with
the laws of the State of North Carolina.
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(e) Whenever in this Agreement a period of time is stated as a number
of days, it shall be construed to mean calendar days; provided, however, that
when any period of time so stated would end upon a Saturday, Sunday, or legal
holiday, such period shall be deemed to end upon the next day following which is
not a Saturday, Sunday or legal holiday.
(f) The date and time for the performance of all obligations hereunder
shall be deemed to be of the essence of this Agreement.
(g) If any term or provision of this Agreement shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement shall not be
affected and each such remaining provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(h) This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument. The date of this Agreement shall
be the date of Seller's execution hereof.
(i) This Agreement is contingent upon Seller obtaining the approval of
Seller's senior management to all of the terms, provisions and conditions
contained herein on or before August 16, 2002 (the "Management Approval Date").
In the event Seller does not obtained such approvals, Seller shall have the
option to terminate this Agreement by written notice to Purchaser prior to 4:00
p.m. (EST) on the Management Approval Date, in which event the parties shall be
released from further liability hereunder, except for those provisions which
specifically survive termination.
(j) Seller and Purchaser are parties to that certain Eleventh Addendum
To Agreement (the "Eleventh Addendum") that is being executed simultaneously
with this Agreement in connection with an existing agreement between the
parties. The terms of said Eleventh Addendum are hereby incorporated as a part
of this Agreement as if fully set forth herein. In the event Purchaser elects to
terminate and void the Eleventh Addendum as provided therein or Purchaser
otherwise defaults under the terms of the Eleventh Addendum, Seller, may, at its
option and in addition to all other remedies provided in the Eleventh Addendum,
terminate this Agreement by written notice to Purchaser provided within fifteen
(15) days after Seller's receives Purchaser's notice of termination relating to
the Eleventh Addendum or Purchaser's default thereunder, in which event the
parties shall be released from further liability hereunder, except for those
provisions which specifically survive termination.
28. Purchaser's Representations. Purchaser (and, if applicable,
Purchaser's Affiliate) represents to Seller, which representations shall be
true, correct and complete as of each Settlement Date hereunder and which shall
survive each Settlement, as follows:
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(a) Purchaser is, and at the Settlement shall be, a corporation (or
limited liability company, or limited partnership, as applicable) duly
organized, validly existing, and in good standing under the laws of the state of
formation, and as of each Settlement, with full power and authority to conduct
its business affairs each state where the Properties are located.
(b) The execution, delivery and performance of this Agreement, in
accordance with its terms, do not violate Purchaser's articles of incorporation,
by-laws, or any contract, agreement, commitment, order, judgment or decree to
which Purchaser is a party or by which it is bound.
(c) The execution and delivery of this Agreement and the performance
by Purchaser of its obligations hereunder have been duly authorized by all
required action of Purchaser and the officers of Purchaser in full compliance
with the provisions of Purchaser's articles of incorporation and by-laws. The
person executing this Agreement on behalf of Purchaser is duly authorized to do
so.
(d) Purchaser has the right, power and authority to make and perform
its obligations under this Agreement and this Agreement is a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
(e) Purchaser executing this Agreement is wholly owned and controlled
by Xxxxxxxx Xxxxxxxx.
29. Seller's Representations. Seller represents to Purchaser, which
representations shall be true, correct and complete as of the Settlement Date
hereunder and which shall survive the Settlement, as follows:
(a) Seller is, and at the Settlement shall be, a national banking
association, duly organized and validly existing, with full power and authority
to conduct its business affairs in each state where the Properties are located.
(b) The execution, delivery and performance of this Agreement by
Seller, in accordance with its terms, do not violate Seller's articles of
incorporation, by-laws, or any contract, agreement, commitment, order, judgment
or decree to which Seller is a party or by which it is bound.
(c) The execution and delivery of this Agreement and the performance
by Seller of its obligations hereunder have been duly authorized by all required
action of Seller and the officers of Seller in full compliance with the
provisions of Seller's articles of incorporation and by-laws. The person
executing this Agreement on behalf of Seller is duly authorized to do so.
20
(d) Seller has the right, power and authority to make and perform its
obligations under this Agreement and this Agreement is a valid and binding
obligation of Seller enforceable against Seller in accordance with its terms.
30. Indemnification. With respect to and following the Settlement on
the Properties:
(a) Purchaser shall indemnify and hold Seller harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees), losses,
damages and liabilities that arise out of or relate to (i) the presence of any
Hazardous Materials in, on or at a Property (or any improvements) at the time of
Settlement, but only to the extent that the presence of such Hazardous Materials
were disclosed in a Phase I Study or Phase II Study obtained by Purchaser, (ii)
transactions or operations at a Property on and after the Settlement Date or
(iii) any breach by Purchaser of any representation, warranty or covenant of
Purchaser contained in this Agreement that survives the Settlement. If any claim
or lawsuit is made or commenced as to which Seller proposes to demand such
indemnification, it shall notify Purchaser with reasonable promptness; provided,
however, that any failure of Seller to notify Purchaser shall not relieve
Purchaser from its obligations hereunder, except to the extent Purchaser is
actually prejudiced by such failure to give notice. Purchaser shall have the
option of defending such claim or lawsuit with counsel of its own choosing at
its own cost and expense and such counsel shall, to the extent consistent with
its professional responsibilities, cooperate with Seller and any counsel
designated by Seller. Purchaser shall be liable for any settlement of any claim
or lawsuit against Seller made with Purchaser's written consent, which consent
shall not be unreasonably withheld.
(b) Seller shall indemnify and hold Purchaser harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees), losses,
damages and liabilities that arise out of or relate to (i) transactions or
operations at a Property before the Settlement Date, but specifically excluding
any matter relating to the physical condition of a Property or the presence of
any Hazardous Materials in, on or at a Property (or any improvements) at the
time of Settlement, and (ii) any breach by Seller of any representation,
warranty or covenant of Seller contained in this Agreement that survives the
Settlement. If any claim or lawsuit is made or commenced as to which Purchaser
proposes to demand such indemnification, it shall notify Seller with reasonable
promptness; provided, however, that any failure of Purchaser to notify Seller
shall not relieve Seller from its obligations hereunder, except to the extent
that Seller is actually prejudiced by such failure to give notice. Seller shall
have the option of defending such claim or lawsuit with counsel of its own
choosing at its own cost and expense and such counsel shall, to the extent
consistent with its professional responsibilities, cooperate with Purchaser and
any counsel designated by Purchaser. Seller shall be liable for any settlement
of any claim or lawsuit against Purchaser made with Seller's written consent,
which consent shall not be unreasonably withheld.
(c) The provisions of this Section 30 shall survive the Settlement and
the delivery of the Deeds and Assignments.
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31. Confidentiality.
(a) Purchaser agrees that this Agreement and any and all information
obtained by Purchaser, its agents, representatives and employees, in connection
with any examinations and inspections of the Properties will be held in strict
confidence by Purchaser and its agents, representatives and employees and will
not be disclosed to anyone other than Purchaser's investors and its and their
professional advisers on a "need to know " basis, without the prior written
consent of Seller. No news release, public or private announcement, denial or
confirmation relating to this Agreement or any part of the transactions
contemplated herein shall be made without the prior written consent of Seller.
In the event this Agreement is terminated prior to the Settlement on a Property,
Purchaser will return to Seller any documents and other materials received from
Seller with respect to such Property. Purchaser shall indemnify, defend and hold
Seller harmless from any loss, damages, costs or expenses (including reasonable
attorney's fees) arising as a result of Purchaser's breach of this Section 31.
(b) Notwithstanding anything to the contrary contained in Section
31(a) above, following expiration of the Due Diligence Period, Purchaser may
market the Properties to Purchaser's contacts (including existing tenants
occupying space in a Property and persons who Purchaser believes may be
interested in using such Property and persons, including brokers, who may have
contacts and relationships with such users), but in doing so, shall not publicly
market or advertise or promote in any manner the availability of such Property
for sale, lease or other disposition.
32. No Offer. This Agreement shall neither be deemed an offer to sell nor
shall it bind, obligate or be effective against Seller unless and until (a) the
Agreement has been approved in writing by Seller's appropriate management
authority and (b) this Agreement has been fully executed by Seller and Purchaser
and an executed copy is delivered to Seller.
33. No Liability. No individual officers, directors, shareholders, agents
or representatives of Seller or of Purchaser shall have any personal liability
under this Agreement, either for the observance or performance of such party's
rights, duties or obligations hereunder, or for the default of such party to
observe and perform its obligations hereunder, or under any document executed in
connection with the transactions contemplated hereby, or otherwise.
34. Radon Notice. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT.
35. Escrow. Escrow Agent is authorized and agrees by its joinder herein to
deposit
22
the Xxxxxxx Money promptly upon receipt thereof, to hold same in escrow and,
subject to clearance thereof, to disburse same in accordance with terms and
conditions of this Agreement. In the event of doubt as to Escrow Agent's duties
or liabilities under the provisions of this Agreement, the Escrow Agent may in
its sole discretion, continue to hold the Xxxxxxx Money until the parties
mutually agree to the disbursement thereof, or until a judgment of a court of
competent jurisdiction shall determine the rights of the parties thereto, or
Escrow Agent may deposit same with the court having jurisdiction of the dispute,
and upon notifying all parties concerned of such action, all liability on the
part of the Escrow Agent shall terminate, except to the extent of accounting for
any items theretofore delivered out of escrow. In the event of any suit between
Purchaser and Seller wherein the Escrow Agent is made a party thereto, the
Escrow Agent shall be entitled to recover reasonable attorney's fees and costs
incurred, said fees and costs to be charged and assessed as court costs in favor
of the prevailing party. All parties agree that the Escrow Agent shall not be
liable to any party or person whomsoever for misdelivery to Purchaser or Seller
of items subject to this escrow, unless such misdelivery shall be due to willful
breach of this Agreement or gross negligence on the part of Escrow Agent.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
SELLER
BANK OF AMERICA, N.A.
By:____________________________________
Xxxxxx Xxxxxxxxx, Senior Vice President
Date of Execution:____________, 2002
PURCHASER
AMERICAN FINANCIAL RESOURCE GROUP, LLC
By:____________________________________
Xxxxxxxx Xxxxxxxx, Manager
Date of Execution:____________, 2002
23
The undersigned Escrow Agent hereby joins in the execution of this
Agreement for the purpose of agreeing to hold and disburse the Xxxxxxx Money in
accordance with the provisions of this Agreement and further agreeing to the
provisions in Section 35 thereof.
ESCROW AGENT:
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
24
LIST OF EXHIBITS
Exhibit A List of Properties
Exhibit B Retained Premises Allocation and Rent Schedule
Exhibit C Form of Retained Premises Lease
Exhibit D Purchase Price Allocation
Exhibit E Form of Lease Assignment and Assumption Agreement
Exhibit F Form of Xxxx of Sale
Exhibit G FIRPTA Affidavit
Exhibit H Seller's Certificate of Representations and Warranties
Exhibit I Purchaser's Certificate of Representations and Warranties
Exhibit J Form of Tenant Estoppel
Exhibit K Rent Roll
Exhibit L Form of Subordination, Non-Disturbance and Attornment Agreement
25
EXHIBIT A
List of Properties
------------------------------------------------------------------------------------------------------------------------------------
Space Rental Rate Allocation of
------------------------------------------------------------------------------------------------------------------------------------
Location Address City State Envelope (RSF) Per RSF Price
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Van Nuys Main Xxxxxx 0000 Xxx Xxxx Xxxx Xxx Xxxx XX 12,935 $ 16.56 $ 1,492,129
------------------------------------------------------------------------------------------------------------------------------------
Altamonte Springs 000 X. Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 10,138 $ 16.56 $ 2,850,675
------------------------------------------------------------------------------------------------------------------------------------
Cleveland Ave 0000 Xxxxxxxxx Xxxxxx Xxxx Xxxxx XX 15,820 $ 16.56 $ 1,547,157
------------------------------------------------------------------------------------------------------------------------------------
E. Hillsborough 0000 Xxxx Xxxxxxxxxxxx Xxxxxx Xxxxx XX 18,064 $ 16.56 $ 1,020,944
------------------------------------------------------------------------------------------------------------------------------------
Forest Oaks 0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxx XX 10,642 $ 16.56 $ 1,132,182
------------------------------------------------------------------------------------------------------------------------------------
Millhopper 0000 XX 00xx Xxxxxx Xxxxxxxxxxx XX 21,766 $ 16.56 $ 2,417,603
------------------------------------------------------------------------------------------------------------------------------------
Prima Vista 000 X Xxxxx Xxxxx Xxxx Xxxx Xx. Xxxxx XX 6,759 $ 16.56 $ 5,364,737
------------------------------------------------------------------------------------------------------------------------------------
Prima Vista Annex 000 X Xxxxx Xxxxx Xxxx Xxxx Xx. Xxxxx XX - $ 16.56 $ -
------------------------------------------------------------------------------------------------------------------------------------
Southside Conyers 0000 Xxxxxxx 000 Xxxxxxxxx Xxxxxxx XX 8,395 $ 16.56 $ 2,155,874
------------------------------------------------------------------------------------------------------------------------------------
Waycross 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 2,500 $ 16.56 $ 992,499
------------------------------------------------------------------------------------------------------------------------------------
Fort Dodge Main 000 Xxxxx Xxxxxx Xxxxx Xxxx Xxxxx XX 7,500 $ 16.56 $ 1,788,265
------------------------------------------------------------------------------------------------------------------------------------
Dodge City 000 X. Xxxxxx Xx. Xxxxx Xxxx XX 7,000 $ 16.56 $ 425,763
------------------------------------------------------------------------------------------------------------------------------------
Main Bank 00 Xxxxx Xxxxxx Xxxx Xxxxxx XX 6,650 $ 16.56 $ 1,100,244
------------------------------------------------------------------------------------------------------------------------------------
Jefferson Motorbank 000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxx XX 1,278 $ 16.56 $ -
------------------------------------------------------------------------------------------------------------------------------------
Raytown 00000 Xxxx 00xx Xx. Xxxxxxx XX 7,788 $ 16.56 $ 900,219
------------------------------------------------------------------------------------------------------------------------------------
Meadowood Midrise 0000 X. Xxxxxxxx Xxxx XX 9,682 $ 16.56 $ 5,437,624
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX 10,852 $ 16.56 $ 699,687
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx City Main 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx Xxxx XX 7,605 $ 16.56 $ 782,502
------------------------------------------------------------------------------------------------------------------------------------
Nassau Bay 0000 Xxxx Xxx Xxxx Xxxxxx Xxx XX 17,730 $ 16.56 $ -
------------------------------------------------------------------------------------------------------------------------------------
Nassau Bay Motorbank 0000 Xxxxxx Xxx Xxxx Xxxxxx Xxx XX 1,530 $ 16.56 $ 2,806,093
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Oak Hill 0000 Xxxxxxx 000 Xxxx Xxxxxx XX 12,208 $ 16.56 $ 3,461,472
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
196,842 $ 36,375,669
-----------------------------------------------------------------------------------------------------------------------
EXHIBIT B
Retained Premises Allocation and Rent Schedule
Information contained on Exhibit A
EXHIBIT C
Retained Premises Lease
The basic form of the Retained Premises Lease shall be prepared, agreed
upon, initialed and attached to this Agreement by August 16, 2002. Should the
parties be unable to agree upon the basic form of the Retained Premises Lease by
the aforesaid date, either party shall have the right to terminate this
Agreement by written notice to the other. Once agreed upon by the parties, the
basic form of the Retained Premises Lease shall be subject to the remaining
provisions in Section 7 of the Agreement.
2
EXHIBIT D
Purchase Price Allocation
Information contained on Exhibit A
3
EXHIBIT E
Property Name:
FORM OF LEASE ASSIGNMENT AND
ASSUMPTION AGREEMENT WITH SELLER AS LESSOR
THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement"), made this
__________ day of ____________, 2002, by and between BANK OF AMERICA, N.A.,
having an address at NC1-007-52-02, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, XX 00000 ("Assignor"), and ________________________________, having
an address at 0000 Xxx Xxxxxxx, Xxxxxxxxxx, XX 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is the landlord under those certain leases attached
hereto as Exhibit "A" ("Leases") with respect to the premises described therein
("Property");
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of
________, 2002, as amended, between Assignor as seller and American Financial
Resource Group, Inc. as purchaser ("Agreement"), Assignor desires to assign all
of its right, title and interest in and to the Leases to Assignee, and Assignee
desires to assume Assignor's right, title and interest in and to the Leases in
accordance with the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each of the parties hereto, Assignor
and Assignee do hereby agree as follows:
1. Assignment and Covenants.
(a) Assignor hereby assigns, gives, grants, bargains, sells, conveys,
transfers and sets over unto Assignee, its successors and assigns, as of the
Effective Date (as hereinafter defined) all of Assignor's right, title and
interest in and to the Leases.
(b) Assignor, for itself, its successors and assigns, covenants with
Assignee, its successors and assigns, as follows: that Assignor is the true and
lawful owner of the leasehold estate created by the Leases; that the Leases are
now in full force and effect; and that Assignor has the right to sell and convey
the leasehold estate created by the Leases.
2. Assumption. Assignee hereby accepts the foregoing assignment and, in
consideration thereof, Assignee hereby covenants and agrees that, on and after
the Effective Date Assignee shall assume, observe, perform, fulfill and be bound
by all terms, covenants, conditions and obligations of the Leases that arise on
and after the Effective Date and are to be observed, performed and fulfilled by
the landlord named therein on and after the Effective Date in the same
4
manner and to the same extent as if Assignee were the landlord named therein.
3. Indemnification.
(a) Assignor hereby indemnifies and agrees to defend and hold harmless
Assignee from and against any and all liability, loss, damage and expense,
including, without limitation, reasonable attorneys' fees, that Assignee may
incur under the Leases by reason of any failure or alleged failure of Assignor
to have complied with or to have performed, before the Effective Date, all of
the obligations of the landlord under the Leases that were to be performed
before the Effective Date.
(b) Assignee hereby indemnifies and agrees to defend and hold harmless
Assignor from and against any and all liability, loss, damage and expense,
including without limitation, reasonable attorneys' fees, that Assignor may
incur under the Leases by reason of any failure or alleged failure of Assignee
to comply with or to perform, on or after the Effective Date, all of the
obligations of the landlord under the Leases that arise on and after the
Effective Date and are to be performed on or after the Effective Date.
4. Effective Date. The "Effective Date", as used herein, shall mean the
date of Closing under the Agreement.
5. Successors and Assigns. The terms and conditions of this Assignment
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
6. Counterparts. This Assignment may be executed in several counterparts,
each of which shall constitute one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first set forth above.
ASSIGNOR
BANK OF AMERICA, N.A.
By:_________________________________
Name:
Title:
ASSIGNEE
____________________________________
By:_________________________________
Name:
Title:
6
Exhibit "A"
Leases
7
EXHIBIT F
Property Name:
FORM OF XXXX OF SALE
FOR VALUE RECEIVED, BANK OF AMERICA, N.A. ("Seller"), hereby sells,
bargains, conveys and transfers to ___________________________________
("Purchaser"), its successors and assigns, forever, all of Seller's right, title
and interest in and to the fixtures, equipment and other items of personal
property listed on Exhibit A attached hereto and made a part hereof
(collectively, the "Personal Property") located on or attached to the real
estate and the building and improvements erected thereon located at [STREET
ADDRESS] (the "Property").
TO HAVE AND TO HOLD the above-mentioned Personal Property unto Purchaser
its successors and assigns, forever.
Seller covenants, represents and warrants that it has good and legal title
to the Personal Property free and clear of all claims, liens, security
interests, charges and encumbrances, and that Seller has the right to transfer
and convey such title to the Personal Property to Purchaser. All terms,
covenants, representations and warranties contained herein shall be for and
inure to the benefit of, and shall bind, the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned has executed this Xxxx of Sale as of the __ day of ________, 20__.
BANK OF AMERICA, N.A.
By:____________________________
Name:
Title:
8
Exhibit A to Xxxx of Sale
Inventory of Personal Property
(to be agreed upon and attached)
9
EXHIBIT G
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee (buyer) that withholding
of tax is not required upon the disposition of a U.S. real property interest by
Bank America, N.A., the undersigned hereby certifies the following on behalf of
Bank America, N.A.;
1. Bank America, N.A. is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revnuew Code and Income Tax Regulations);
2. Bank America, N.A.'s U.S. Employer identification number is
____________________, and
3. Bank America, N.A.'s office address is:________________________________.
Bank America, N.A. understands that this certification may be disclosed to
the Internal Revenue Service by transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and, to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of Bank America, N.A.
BANK OF AMERICA, N.A.
_______________________________
Title
Dated:_________________________
10
EXHIBIT H
SELLER'S CERTIFICATE OF REPRESENTATION AND WARRANTIES
_________________, ___ 20__
American Financial Resource Group, LLC
0000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Re: Agreement dated __________, 2002 (the "Agreement") by and between Bank
of America, N.A. ("Seller") and American Financial Resource Group, LLC
("Purchaser")
Dear Xx. Xxxxxxxx:
Reference is made to the above-described Agreement for the acquisition
of various Properties (as defined in the Agreement) set forth on Exhibit A
attached hereto. Pursuant to Section 11(f) of the Agreement, Seller hereby
certifies that the representations of Seller made in Section 29 of the Agreement
are true, accurate, and complete as of the date hereof. The foregoing is subject
to the provisions of Section 30(b) of the Agreement.
Very truly yours,
BANK OF AMERICA, N.A.
By:____________________________
Name:
Title:
11
Exhibit A to Seller's Certificate
12
EXHIBIT I
PURCHASER'S CERTIFICATE OF REPRESENTATIONS AND WARRANTIES
_________________, ___ 20__
Bank of America, N.A.
NC1-007-52-02
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Re: Agreement dated __________, 2002 (the "Agreement") by and between Bank
of America, N.A. ("Seller") and American Financial Resource Group, LLC
("Purchaser")
Dear Xx. Xxxxxxxxx:
Reference is made to the above-described Agreement for the acquisition
of various Properties (as defined in the Agreement) set forth on Exhibit A
attached hereto. Pursuant to Section 12(d) of the Agreement, Purchaser hereby
certifies that the representations of Purchaser made in Section 28 of the
Agreement are true, accurate, and complete as of the date hereof. The foregoing
is subject to the provisions of Section 30(a) of the Agreement.
Very truly yours,
AMERICAN FINANCIAL RESOURCE GROUP
By:____________________________________
Name:
Title:
13
Exhibit A to Purchaser's Certificate
14
EXHIBIT J
Form of Tenant Estoppel
TENANT ESTOPPEL CERTIFICATE
The undersigned, having the power and authority to do so, this ____ day
of ______, 2002 hereby states, certifies and affirms to BANK OF AMERICA, N.A.
("Landlord") and _______________ ("Purchaser") and ______________________
("Lender") the following as of the date hereof:
1. That the undersigned is the tenant ("Tenant") under the following
described lease agreement (the "Lease"), by and between Tenant and Landlord,
which Lease covers certain premises (the "Leased Premises") located at
______________________________ (the "Property"):
(A) Tenant Name:______________________________________________
(B) Suite Number: ___________________________________________
(C) Approximate number of rentable square feet in Leased
Premises: ________________________________________________
(D) Date of Lease: __________________________________________
(E) Dates of Amendments: _____________________________________
(F) Lease Expiration Date: ___________________________________
(G) Current Monthly Base Rent: _______________________________
(H) Additional Rent: _________________________________________
(I) Security Deposit:_________________________________________
(J) Renewal Options: _________________________________________
2. That Tenant has accepted and is occupying the Leased Premises under
the terms of the Lease.
3. That neither the Security Deposit (if any) nor any part thereof has
been returned to Tenant.
4. That all base rent, additional rental and other charges (including,
if applicable, the operating expense charges and charges made by Landlord with
respect to real estate taxes) due and
15
payable through _________, 2002 have been paid by Tenant.
5. That the copy of the Lease (with all the modifications and
amendments) attached hereto as Exhibit A is a true, correct and complete copy of
the Lease.
6. That the Lease, as of the date hereof, is in full force and has not
been modified or amended in any respect whatsoever, except as noted above.
7. That to the best knowledge and belief of Tenant, Landlord is not in
default under any of the terms or provisions of the Lease to be performed by
Landlord beyond applicable notices and grace periods.
8. That Tenant has no current claim of offset or defense to the
payment of rent and other charges payable by Tenant and, to Tenant's best
knowledge and belief, has no current claim against Landlord in regard to any
obligation of Landlord relating to the Leased Premises which rises to the level
of default under the Lease. Tenant has not currently advanced any funds for or
on behalf of the Landlord for which Tenant has the right to deduct from future
rent payments.
9. That Tenant has not prepaid any rent for a period of more than
sixty (60) days from the date hereof.
10. Tenant has not given Landlord notice of its intention to vacate the
Leased Premises prior to the Lease Expiration Date.
Tenant:
_______________________________
By: _______________________________
Title: _______________________________
16
EXHIBIT K
Rent Roll
The Rent Roll shall be prepared, agreed upon, initialed and attached to this
Agreement by August 16, 2002. Should the parties be unable to agree upon the
Rent Roll by the aforesaid date, either party shall have the right to terminate
this Agreement by written notice to the other.
17
EXHIBIT L
Form of Subordination, Non-Disturbance and Attornment Agreement
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (the
"Agreement") is made as of the _______day of __________, 20___, by and between
BANK OF AMERICA, N.A., a national banking association (hereinafter referred to
as "Tenant"), and _______________________________ (hereinafter referred to as
"Mortgagee").
WHEREAS, Mortgagee is the owner and holder of a promissory note dated
__________________, made by ________________________, a ______________, payable
to the order of Mortgagee (herein, as it may have been or may be from time to
time renewed, extended, amended or supplemented, called the "Note"), secured,
without limitation, by a Real Estate Mortgage or Deed of Trust (herein, as it
may have been or may be from time to time renewed, extended, amended or
supplemented, called the "Mortgage") recorded in Book ________, Page _______, of
the Real Property Records of __________________ County, ________________,
covering the land (the "Land") described in Exhibit "A" which is attached hereto
and incorporated herein by reference, and the improvements thereon (such Land
and improvements being herein together called the "Property," and the Note and
the Mortgage, and any other liens held by Mortgagee against the Property to
secure the Notes, being herein together called the "Mortgage");
WHEREAS, Tenant, as tenant, proposes to execute a lease dated on or
about (the "Lease") with ______________, as landlord ("Landlord"), covering the
portion of the Property described in the Lease (herein called the "Premises");
and
WHEREAS, as a condition to entering into the Lease, Tenant has required
that Mortgagee execute this Agreement and Mortgagee has agreed to do so as a
material inducement to Tenant;
THEREFORE, for and in consideration of Ten Dollars (10.00), and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the mutual covenants and agreements herein
contained, Tenant and Mortgagee hereby agree as follows:
1. Subject only to the rights of Tenant hereinafter set forth, the
Lease and all rights of Tenant thereunder are subject and subordinate to the
Mortgage and any renewals or extensions thereof. This provision is acknowledged
by Tenant to be self-operative and no further instrument shall be required to
effect such subordination of the Lease.
2. In the event of any foreclosure under the Mortgage, or if conveyance
or transfer of the Property shall be made in lieu of foreclosure (any such
foreclosure or conveyance or transfer in lieu of foreclosure being herein
referred to as "Foreclosure"), then the Lease shall not
18
be terminated as a result of such Foreclosure, whether by operation of law or
otherwise, but rather, notwithstanding such Foreclosure, and the fact that the
Lease is subordinate to the Mortgage, the Lease shall continue in full force and
effect in accordance with the provisions thereof, and the right of Tenant under
the Lease shall not be interfered with nor disturbed by any party owning the
Property or any interest therein as a result of Foreclosure, or such party's
successors and assigns ("Owner"), and provided that nothing herein shall negate
the right of Owner to exercise the rights and remedies, including without
limitation the right to terminate the Lease of Landlord under the Lease in the
event of a default by Tenant under the Lease, and as to any default by Tenant
under the Lease existing at the time of Foreclosure, such Foreclosure shall not
operate to waive or xxxxx any action initiated by Landlord under the Lease to
terminate the same on account of such default. Nothing in this Agreement shall
obligate Tenant to pay rent or other charges to Mortgagee until Tenant has
received written notice from Mortgagee that Mortgagee has succeeded to the
interest of Landlord under the Lease, or otherwise has the right to receive such
rents or other charges.
3. Tenant agrees that in the event of Foreclosure, Tenant will attorn
to Owner, and Tenant affirms its obligations under the Lease to Owner and agrees
to pay all rentals and charges then due, or to become due, under the Lease to
Owner, all without change in the terms or provision of the Lease. Upon request
by Owner or Tenant, Owner and Tenant shall execute and deliver an instrument or
instruments confirming the non-disturbance and attornment herein provided for.
4. Tenant acknowledges that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Mortgagee.
5. All notices required or which any party desires to give hereunder
shall be in writing and shall be addressed or delivered to the respective
addresses set forth at the end of this Section, or to such other address as may
have been previously designated by the intended recipient by notice given in
accordance with this Section. If sent by prepaid, registered or certified mail
(return receipt requested), the notice shall be deemed effective when the
receipt is signed or when the attempted initial delivery is refused or cannot be
made because of a change of address of which the sending party has not been
notified; if sent by a nationally-recognized overnight courier, the notice shall
be deemed effective on the next business day after delivery to such courier; and
if transmitted by personal delivery, the notice shall be effective when
received. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon receipt.
As to Tenant: With a required copy to:
Bank of America, N.A. _______________________
000 Xxxxx Xxxxx, 0/xx/ Xxxxx _______________________
NC1-023-03-03 _______________________
Xxxxxxxxx, XX 00000 _______________________
Attn: Property Services _______________________
19
As to Mortgagee: With a required copy to:
_______________________ ____________________________
_______________________ ____________________________
_______________________ ____________________________
_______________________ ____________________________
6. This Agreement shall inure to the benefit and shall be binding upon
Mortgagee and Tenant and their respective successors and assigns, and any
Purchaser and its heirs, personal representatives, successors and assigns. This
Agreement and its validity, enforcement and interpretation, shall be governed by
the laws of the State in which the Land is located and applicable United States
federal law. This Agreement may not be modified orally or in any manner other
than by an agreement in writing signed by the parties hereto or their respective
successors in interest.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MORTGAGEE: TENANT:
________________________ BANK OF AMERICA, N.A.
By: ____________________ By: ________________________
Name:___________________ Name: ______________________
Title:__________________ Title: _____________________
20
STATE OF ____________ )
)
COUNTY OF ___________ )
This instrument was acknowledged before me this __ day of
__________________, 20___, by _________________________,
______________________________ of BANK OF AMERICA, N.A., a national banking
association, on behalf of said association. He/She is personally known to me or
has produced ______________________ as identification and did (did not) take an
oath.
______________________________
Notary Public, State of
Print/Type Name: _____________
Serial Number: _______________
(NOTARY SEAL)
My Commission Expires:
STATE OF ________ )
)
COUNTY OF )
This instrument was acknowledged before me this __ day of __________,
20___, by ______________________, [general partner] [president] of
_______________________, a _______________ [partnership] [limited partnership]
[corporation], on behalf of the [partnership] [corporation]. He/She is
personally known to me or has produced ________________ as identification and
did (did not) take an oath.
______________________________
Notary Public, State of
Print/Type Name: ____________
Serial Number: ______________
(NOTARY SEAL)
My Commission Expires:
21
