Exhibit 10.3
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
BETWEEN
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement (1997-C) dated as of June 4, 1997
AND
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement (1997-D) dated as of June 4, 1997
AND
XXXXXXX X. XXXXXXX, as successor Co-Trustee to XXXX XXXX SEAKAS, as successor
Co-Trustee to XXXXX XXXXXXX, not in her individual capacity, but solely as
Co-Trustee under the Trust Agreement (1997-C) dated as of June 4, 1997
AND
XXXXXXX X. XXXXXXX, as successor Co-Trustee to XXXX XXXX SEAKAS, as successor
Co-Trustee to XXXXX XXXXXXX, not in her individual capacity, but solely as
Co-Trustee under the Trust Agreement (1997-D) dated as of June 4, 1997
AND
RENAT, INC., a Delaware corporation
AND
XXXX COMMERCIAL CREDIT CORPORATION, A Delaware corporation
AND
FIRST STATES GROUP, L.P., A Delaware limited partnership
December 17, 2002
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
17th day of December, 2002 between STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, but solely as Owner Trustee ("Owner Trustee C") under the
Trust Agreement (1997-C) ("Trust Agreement C"), STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity, but solely as Owner Trustee ("Owner Trustee D",
collectively with Owner Trustee C, "Owner Trustee") under the Trust Agreement
(1997-D) ("Trust Agreement D"), XXXXXXX X. XXXXXXX, as successor Co-Trustee to
XXXX XXXX SEAKAS, as successor Co-Trustee to XXXXX XXXXXXX, not in her
individual capacity, but solely as Co-Trustee ("Co-Trustee C") under Trust
Agreement C, XXXXXXX X. XXXXXXX, as successor Co-Trustee to XXXX XXXX SEAKAS, as
successor Co-Trustee to XXXXX XXXXXXX, not in her individual capacity, but
solely as Co-Trustee ("Co-Trustee D" collectively with Co-Trustee C,
"Co-Trustee")) under the Trust Agreement D (collectively, Owner Trustee C, Owner
Trustee D, Co-Trustee C, and Co-Trustee D are herein referred to as "Seller"),
RENAT, INC., a Delaware corporation ("Renat"), XXXX COMMERCIAL CREDIT
CORPORATION, a Delaware corporation ("Xxxx"), and FIRST STATES GROUP, L.P., a
Delaware limited partnership (together with any of its assignees, "Purchaser").
BACKGROUND
WHEREAS, Owner Trustee C is the owner of an undivided 30.02166512%
interest in (i) an estate for years (the "Estate for Years") expiring at 11:59
p.m. on June 9, 2027 (the "Estate for Years Expiration Date") in those certain
parcels of land more particularly described in Exhibits A-1 through A-14
(collectively, the "Portfolio Properties") annexed hereto and made a part hereof
(the "Land"), and (ii) fee of (a) all buildings, improvements and structures now
or hereafter located on the Land (the "Improvements") and (b) certain equipment
and fixtures attached thereto (the Estate for Years, Improvements, equipment,
and fixtures are hereinafter collectively referred to as the "Property"); and
WHEREAS, Owner Trustee D is the owner of an undivided 69.97833488%
interest in the Property; and
WHEREAS, Renat is the owner of all of the beneficial interests in Trust
Agreement C and Trust Agreement D; and
WHEREAS, Xxxx is the sole stockholder of Renat; and
WHEREAS, Reman 1997-C, Inc., a New Jersey corporation ("Reman C"), is
the fee owner of an undivided 30.02166512% interest as tenant in common of the
Land subject to the Estate for Years, and Reman 1997-D, Inc., a New Jersey
corporation ("Reman D" collectively with Reman C, "Remaindermen"), is the fee
owner of an undivided 69.97833488% interest as tenant in common of the Land
subject to the Estate for Years; and
WHEREAS, the Property is subject to the terms and conditions of those
certain leases (the "Leases") between Seller, as landlord, and Bank of America,
N.A., successor in interest by
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merger or otherwise, as tenant ("Lessee"), as more fully described in Exhibit B
annexed hereto and made a part hereof; and
WHEREAS, the Land and the Property are encumbered by one or more Deeds
of Trust and other documents securing and evidencing certain purchase money
financing obligations of Seller with an original principal balance of
$290,790,000 (the "Debt") and more particularly described in Exhibit C annexed
hereto and made a part hereof (which Deed of Trust, together with the promissory
notes secured thereby and any related loan documents, are together called the
"Mortgage"); and
WHEREAS, Purchaser desires to purchase, directly or indirectly, all
right, title and interest in and to the Property and the other parties hereto
desire to effect such a sale; and
WHEREAS, the parties hereto may, at Purchaser's option but subject to
the terms and conditions set forth herein, structure the transaction
contemplated hereby as (i) a purchase by Purchaser from Seller of all of
Seller's right, title and interest in and to the Property (the "Asset
Purchase"), (ii) a purchase by Purchaser from Renat of all of the outstanding
beneficial interests (the "Interests") held by Renat in Trust Agreement C and
Trust Agreement D (the "Interest Purchase"), or (iii) a purchase by Purchaser
from Xxxx of all of the outstanding shares (the "Shares") of Renat held by Xxxx
(the "Share Purchase").
NOW, THEREFORE, for and in consideration of the premises and the mutual
representations, warranties and covenants contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and subject
to the terms and conditions of this Agreement, Seller shall sell, assign and
convey, and Purchaser or its assignee shall purchase, the Property on the terms
and conditions provided in this Agreement.
2. Closing Documents. On the Closing Date and subject to the terms and
conditions of this Agreement, each of Seller, Renat, Xxxx and Purchaser shall
enter into the Closing Documents to which it is a party.
3. Purchase Price. Purchaser shall pay, and Seller shall accept, as the
purchase price (the "Purchase Price") for the Property, in addition to
Purchaser's acquiring the Property subject to the Mortgage (or Purchaser
prepaying all or any part of the loan as evidenced by that certain Note (1997-C)
in the original principal amount of $87,300,000 and that certain Note (1997-D)
in the original principal amount of $203,490,000 (collectively, the "Notes"),
which Notes are secured by the Mortgage, as more fully set forth below), the
amount of Thirty-Eight Million Five Hundred Thousand Dollars ($38,500,000) as
increased or decreased pursuant to the provisions of Section 8(f), Section 13(a)
and Section 13(c)(iii) hereof. At Closing, Purchaser shall pay to Seller (or its
designees) the Purchase Price (as increased or decreased pursuant to the
provisions of Section 8(f), Section 13(a) and Section 13(c)(iii) hereof) in
immediately available funds by wire transfer to accounts designated by Seller.
Purchaser acknowledges that the Property is subject to the Mortgage and that the
Purchase Price shall not be diminished or otherwise reduced by reason thereof,
including, without limitation, reductions by reason of the pay off of all or any
part of the existing financing, prepayment penalties, or otherwise (whether
Purchaser elects to prepay all or any part of the loan as evidenced by the Notes
and secured by the Mortgage).
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Under no circumstances shall Seller, Renat or Xxxx incur any cost, expense, fee,
make-whole premium, penalty or other liability or shall the Purchase Price be
adjusted as the result of, or in connection with, Purchaser's prepayment of the
Debt or purchase of the Notes.
4. Allocation of Purchase Price. Seller and Purchaser shall allocate
the Purchase Price (and to the extent included in Seller's amount realized for
federal income tax purposes, the amount of any liabilities assumed by Purchaser)
among the Property in accordance with a schedule setting forth such allocation
(the "Allocation Schedule"), which Allocation Schedule shall be prepared and
mutually agreed upon by the parties hereto prior to the expiration of the
Inspection Period. Purchaser and Seller shall exercise good faith and
commercially reasonable judgment in preparing the Allocation Schedule. The
allocation in the Allocation Schedule shall be intended to comply with the
requirements of Section 1060 of the Internal Revenue Code of 1986, as amended,
and Treasury Regulations thereunder, and shall be modified, as mutually agreed
by Seller and Purchaser, only as necessary to reflect changes to the Purchase
Price (or amount of assumed liabilities) pursuant to this Agreement. Unless
otherwise agreed to by both parties in writing, Purchaser and Seller agree that
Purchaser and Seller will (i) be bound by the allocation set forth in the
Allocation Schedule, (ii) act in accordance with such allocation in preparing
and filing all tax returns (including IRS Form 8594) and in the course of any
tax audit relating thereto and (iii) take no position, and cause their
affiliates to take no position, inconsistent with such allocation for all tax
purposes; provided, however, that (i) Purchaser's total cost for the Property
may differ from the total amount allocated hereunder to reflect the inclusion in
the total cost of items (for example, capitalized acquisition costs) not
included in the total amount so allocated and (ii) the amount realized by Seller
may differ from the total amount allocated hereunder to reflect Seller's
transaction costs that reduce the amount realized for federal income tax
purposes. Each of Seller and Purchaser covenant with the other that it will
promptly give written notice to the other of any inquiry regarding or challenge
to the allocation set forth in the Allocation Schedule by any taxing authority.
This Section 4 shall survive the Closing.
5. "As-Is". Except as expressly set forth in this Agreement, Purchaser
accepts the Property "AS-IS, WHERE IS," with all faults and defects as of the
date hereof and the Closing Date. Except as expressly set forth in this
Agreement, Purchaser represents that it is relying solely upon its inspection of
the Property, if any, for all purposes whatsoever including, without limitation,
the determination of the character, size (including quantity of acreage),
condition (whether environmental or otherwise), accessibility, compliance with
applicable laws, state of repair and title and zoning. Purchaser acknowledges
that there have been no representations, warranties, guaranties, statements or
information of any kind, express or implied (including, but not limited to,
implied warranties of merchantability and fitness for a particular purpose),
made or furnished to Purchaser by Seller, Renat or Xxxx or any of their
respective employees or agents, except as expressly set forth in this Agreement.
This Section 5 shall survive the termination of this Agreement or the Closing.
6. Environmental. Seller, Renat and Xxxx make no representations or
warranties to Purchaser that the Property is in compliance with applicable
federal, state, regional, county or local laws, statutes, rules, regulations or
ordinances, concerning environmental matters or the environment. Without
limitation and in furtherance of the foregoing, it is expressly agreed among the
parties hereto that the Land and Improvements are being transferred to and
accepted
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by Purchaser pursuant to this Agreement in their present, strict "AS IS, WHERE
IS" environmental condition as of the Closing Date. This Section 6 shall survive
the termination of this Agreement or the Closing.
7. Approvals and Conditions; Indemnity.
(a) The obligations of Seller, Renat, Xxxx and Purchaser under this
Agreement shall be subject to and contingent upon timely satisfaction of the
following conditions, which conditions, if not satisfied or waived as
hereinafter provided, shall entitle Seller, Renat, Xxxx or Purchaser, as the
case may be, to terminate this Agreement in accordance with (and within the time
periods set forth in) this Section 7:
(i) Review of Documentation Relating to the Property; Physical
Inspection of the Land and Improvements. Renat has heretofore
provided Purchaser with copies of all documentation concerning
the Property which is in Renat's possession or control,
including without limitation, any existing title policies
covering Renat's interest in the Land and Improvements, the
Leases, and the Mortgage. In addition, Seller covenants and
agrees to send Lessee the letter in the form attached hereto as
Exhibit G, and to use commercially reasonable efforts in
obtaining the materials requested therein. Seller shall continue
to cooperate with Purchaser in providing information and
documents to assist in Purchaser's investigation of the
Property. Purchaser may, at Purchaser's sole risk and expense,
undertake such physical inspection of the Land and Improvements
as Purchaser deems necessary or appropriate subject to the
rights of Lessee under the Leases.
Notwithstanding any other provisions contained in this Agreement
to the contrary, Purchaser understands and agrees that any
on-site inspections of the Property shall be conducted in
accordance with the provisions of the Leases. Purchaser agrees
to indemnify against and hold Seller, Renat and Xxxx harmless
from any claims by third parties for liabilities, costs,
expenses (including reasonable attorneys' fees), damages or
injuries arising out of or resulting from the inspection by
Purchaser or its agents, and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify and
hold Seller, Renat and Xxxx harmless shall survive Closing or
any termination of this Agreement. All on-site inspections shall
occur at any reasonable time during normal business hours, upon
the giving of reasonable notice, and if required by Lessee or
such other subtenant of space in the Property, are accompanied
by an employee or other representative of Lessee at all times
during such entry or inspection. Notwithstanding anything
contained in the foregoing to the contrary, Purchaser
understands and agrees that it may be excluded
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from inspecting areas of the Property designated as security
areas by Lessee, including, without limitation, vaults,
modular vaults and automatic teller machines. Without
limitation of the foregoing, Renat agrees to afford
Purchaser and a reasonable number of its authorized agents,
the right to communicate with Lessee, any subtenants of
Lessee who lease 20,000 or more square feet (with the
permission of Lessee), and Remaindermen.
Upon the termination of this Agreement in accordance with
its terms, Purchaser shall keep confidential all such
information. If there is any damage to or disturbance of any
portion of the Land and Improvements in connection with any
inspection thereof, Purchaser shall restore such portion of
the Land and Improvements as nearly as practicable to its
original condition prior to such damage or disturbance.
Purchaser shall have until February 5, 2003 (the "Inspection
Period") within which it may, at its sole cost and expense,
review the documentation, including, without limitation, the
Operative Documents (defined below), and the physical and
environmental condition of the Land and Improvements.
Purchaser shall have until the end of the Inspection Period
to disapprove of the documentation and/or the physical and
environmental condition of the Land and Improvements and to
terminate this Agreement by delivering a written notice (a
"Termination Notice") to Seller, Renat and Xxxx on or before
the expiration of the Inspection Period, with time being of
the essence with respect to Purchaser's obligation to
deliver such notice. If Purchaser's due diligence review
pursuant to this Section 7(a) is unsatisfactory to Purchaser
in Purchaser's sole discretion, Purchaser shall have the
right to terminate this Agreement by delivering said
Termination Notice to Seller, Renat and Xxxx prior to the
expiration of the Inspection Period, and if Purchaser gives
such notice of termination within the Inspection Period,
then the provisions of Section 7(b) shall control. If
Seller, Renat and Xxxx do not receive a Termination Notice
from Purchaser before the end of the Inspection Period,
Purchaser shall be deemed to have approved of the
documentation and the physical and environmental condition
of the Land and Improvements and all other matters relating
thereto.
(ii) Approval of Title and Survey. Upon execution of this
Agreement, Purchaser shall be entitled, but shall not be
required, to order (A) a commitment for an owner's policy of
title insurance (the "Commitment") issued by a title company
selected by Purchaser (the "Title Company") pursuant to
which the Title Company commits to issue an owner's policy
of title insurance in such amounts as are reasonably
requested by Purchaser (the "Title
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Policy") and (B) a survey of the Land (the "Survey") in form
acceptable to Purchaser and the Title Company (in the event
Purchaser elects to obtain title insurance). The costs of
the Title Policy (together with any endorsements requested
by Purchaser) and Survey shall be paid solely by Purchaser.
During the Inspection Period, Purchaser shall have the
opportunity to review the condition of title and survey. At
any time prior to January 21, 2003, Purchaser may disapprove
the Survey and the title exceptions, by delivering written
notice (a "Disapproval Notice") to Seller, Renat and Xxxx
stating with particularity the exceptions which Purchaser
disapproves and the reasons for such disapproval. Seller, at
its option, shall have fifteen (15) days, from and after
delivery of Purchaser's Disapproval Notice, to agree to
undertake to cause the surveyor or the Title Company, as the
case may be, to remove such objectionable exceptions. If
Seller agrees to undertake to remove any objectionable
exceptions, Seller will provide written notice of such
decision to Purchaser and will use commercially reasonable
efforts to cause the removal of such exceptions within
thirty (30) days after it agrees to such undertaking,
provided however that the Scheduled Closing Date may be
extended by Seller, if necessary, for an additional period
of thirty (30) days to remove such objectionable exceptions
(provided that Seller is diligently pursuing such removal).
If Seller does not agree to undertake to remove such
exceptions or shall fail to remove such objectionable
exceptions within such time, Purchaser may (a) elect to
waive its objections and close on the Closing Date, or (b)
terminate this Agreement by delivering a Termination Notice
to Seller, Renat and Xxxx within three (3) business days
after Seller's failure to agree to remove such exceptions.
Purchaser's failure to respond within such three (3)
business day period shall be deemed an election to waive its
objections and close on the Closing Date. If Purchaser
provides a Termination Notice within such three (3) business
day period, this Agreement shall terminate, and the
provisions of Section 7(b) shall control. In the event
Seller does not receive a Disapproval Notice from Purchaser
prior to January 21, 2003, with time being of the essence,
Purchaser shall be deemed to have approved the Survey and
the condition of title as set forth in the Commitment
through the last day of the Inspection Period. Any title
exceptions or survey exceptions not objected to by Purchaser
or otherwise waived and accepted by Purchaser shall be
deemed "Permitted Exceptions" to the conveyance to Purchaser
by Seller. On or prior to Closing, Purchaser may notify
Seller in writing (the "Gap Notice") of any objections to
title that are not contained in the Commitment (provided
that such Commitment was obtained by Purchaser on or before
January 21, 2003): (a) raised by the Title Company between
the expiration of the Inspection Period and the
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Closing, and (b) not disclosed by the Title Company in the
Commitment or otherwise known to Purchaser prior to the
expiration of the Inspection Period. If Purchaser sends a
Gap Notice to Seller, Purchaser and Seller shall have the
same rights and obligations with respect to such notice as
apply to a Disapproval Notice in accordance with the
provisions of Section 7(a)(ii).
(iii) On or prior to February 5, 2003, Purchaser shall have
obtained all of the required consents and approvals,
including, without limitation, the consents and approvals
listed on Schedule 13 hereto, with respect to its
assumption or satisfaction of the Debt, its purchase of
the Property and such other consents and approvals as are
required to consummate the Asset Purchase on the Closing
Date. If Purchaser has not obtained all such consents and
approvals by February 5, 2003, then Purchaser shall be
required to consummate a Share Purchase or Interest
Purchase as provided for in Section 13(a).
(b) Effect of Termination. If this Agreement is terminated pursuant
to this Section 7, no party shall have any further rights against or obligations
to the other parties hereunder, except as to those obligations which are
expressly stated to survive the termination of this Agreement.
(c) Indemnity. Purchaser shall indemnify and hold harmless Seller
from and against any and all liability, loss, cost and expense (including,
without limitation, reasonable attorneys' fees and disbursements) arising from
any action by Purchaser or any of its agents, employees or contractors in
connection with any entry onto the Land and Improvements and/or any physical
inspection of the same. This provision shall survive the termination of this
Agreement or the Closing.
8. Costs; Prorations; Surrendered Property.
(a) Except as otherwise provided by this Agreement, each party shall
pay the out-of-pocket costs and expenses incurred by it in connection with this
Agreement and the transactions contemplated hereby. If Purchaser elects to
prepay all or part of the indebtedness secured by the Mortgage and evidenced by
the Notes, Purchaser shall be responsible for all costs payable to the holder of
the Debt in connection with such prepayment. There shall be no apportionments,
except for any rent under the Leases in excess of debt service on the Mortgage,
which excess will be pro-rated from the immediately preceding rent and debt
service payment date to and including the Closing Date (all other expenses being
the responsibility of the Lessee under the Leases both before and after the
Closing Date).
(b) If the transaction is structured as an Asset Purchase, Seller
and Purchaser shall pay all transfer, intangible, grantor, grantee, recording,
deed, stamp, excise, documentary, conveyancing or similar taxes, fees or charges
applicable to this transaction ("Transfer Taxes") in accordance with Schedule
8(b) hereto; provided, however, that Seller's obligations for
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payment of Transfer Taxes shall not, under any circumstance, exceed the amount
of Transfer Taxes that would have been payable by Renat and/or Seller if the
conveyance of Property to Purchaser had been structured as an Interest Purchase
(the "Maximum Transfer Tax Obligation"), and Purchaser shall be solely
responsible for the payment of, and shall indemnify and hold Seller, Renat, and
Xxxx harmless from, any Transfer Taxes in excess of the Maximum Transfer Tax
Obligation, regardless of Schedule 8(b) or any jurisdiction's usual and
customary payment practice. For purposes of calculating the Maximum Transfer Tax
Obligation, the parties shall assume that a Transfer Tax is payable in Maryland
in connection with an Interest Purchase only if Xxxx, Renat and Purchaser are
satisfied that a Transfer Tax would be payable in Maryland. This Section 8(b)
shall survive the Closing.
(c) Except as otherwise provided in this Agreement, if the transaction
is structured as a Share Purchase, Xxxx and Purchaser shall pay all Transfer
Taxes in accordance with Schedule 8(c) hereto. This Section 8(c) shall survive
the Closing.
(d) Except as otherwise provided in this Agreement, if the transaction
is structured as an Interest Purchase, Renat and Purchaser shall pay all
Transfer Taxes in accordance with Schedule 8(c) hereto. This Section 8(d) shall
survive the Closing.
(e) Notwithstanding any other provision of this Agreement (including,
without limitation, Sections 8(b), 8(c), and 8(d) and Schedules 8(b) and 8(c))
and regardless of how the transaction is structured, Purchaser shall be
responsible for, and shall indemnify and hold Seller, Renat, and Xxxx harmless
from, any taxes, fees or charges arising from or relating to the recording,
transfer, assignment, conveyance, modification, renewal, discharge, or
satisfaction of, or other similar act with respect to, a mortgage, deed of
trust, security interest or agreement, evidence of indebtedness or encumbrance,
or similar document or agreement. This Section 8(e) shall survive the Closing.
(f) Purchaser acknowledges that Lessee has vacated and surrendered to
Seller that certain Portfolio Property located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx (the "Surrendered Property"), containing approximately 330,750 rentable
square feet of space. Seller and Xxxx are negotiating the sale or other
disposition of the Surrendered Property. If Seller sells, conveys, disposes of,
or otherwise transfers the Surrendered Property on or prior to the Closing Date
or enters into a definitive sales contract with a third party on or prior to the
Closing Date to sell, convey, dispose of or otherwise transfer the Surrendered
Property (a "Binding Agreement"), Purchaser shall receive at Closing a credit
against the Purchase Price in the amount of any proceeds received by Seller or
payable to Seller pursuant to a Binding Agreement or otherwise, from the
disposition of the Surrendered Property. If the Surrendered Property is not
disposed of by Seller on or prior to the Closing Date and Seller has not entered
into a Binding Agreement on or prior to the Closing Date, there shall be no
adjustment to the Purchase Price, in which event the Surrendered Property shall
be included with the Property purchased by Purchaser. If Seller has entered into
a Binding Agreement on or prior to the Closing Date but the sale contemplated by
the Binding Agreement has not closed on or prior to the Closing Date, then (i)
Seller shall assign the Binding Agreement (and all rights and obligations
thereunder) to Purchaser on the Closing Date, (ii) the Surrendered Property
shall not be included in the Property to be sold pursuant to this Agreement, and
(iii) Purchaser shall receive a credit against the Purchase Price as described
above.
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9. Remedies on Default.
(a) Default by Purchaser. In the event that Closing fails to occur by
reason of a default by Purchaser, Seller shall be entitled, as its sole remedy,
to terminate this Agreement and receive as liquidated damages for default under
this Agreement the greater of (i) Seller's actual out-of-pocket costs for legal
fees and expenses incurred by Seller in the negotiation of this Agreement, or
(ii) $150,000.
(b) Default by Seller. In the event that Seller, Renat or Xxxx defaults
in the performance of its obligations under this Agreement for any reason other
than Purchaser's default, Purchaser shall be entitled to (i) terminate this
Agreement, (ii) seek specific performance of this Agreement by Seller, Renat or
Xxxx, as applicable, or (iii) receive as liquidated damages for Seller's default
under this Agreement the greater of (A) Purchaser's actual out-of-pocket costs
for legal fees and expenses incurred by Purchaser in the negotiation of this
Agreement, or (B) $150,000.
10. Insurance; Casualty or Condemnation. If any portion of the Improvements
are materially damaged or destroyed by fire or other casualty prior to the
Closing and the proceeds from any insurance covering such Improvements are not
sufficient to allow for the timely repair or replacement of such Improvements,
or in the event Seller shall receive notice prior to Closing of any taking or
any threatened taking of all or any material portion of the Land or
Improvements, at Purchaser's sole option, Purchaser may terminate this Agreement
solely with respect to the Portfolio Property so affected by providing written
notice to Seller, Xxxx and Renat; provided, however, that if this Agreement is
not so terminated with respect to an affected Portfolio Property, this Agreement
shall remain in full force and effect with respect to such Portfolio Property,
and Seller shall assign all of its rights in and to any interest it may have to
the proceeds (including insurance proceeds) payable by any party to Seller with
respect to such Portfolio Property, as a result of such casualty or condemnation
affecting such Portfolio Property. If the Agreement is terminated with respect
to a Portfolio Property pursuant to this Section 10, the Purchase Price shall be
adjusted accordingly and this Agreement shall remain in full force and effect
with respect to the remaining Portfolio Properties.
11. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Seller, Renat and Xxxx as of the date
hereof as follows:
(a) Purchaser is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) Purchaser has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of the Closing
Documents (as hereinafter defined) to which it is a party and to perform its
obligations under this Agreement and each of such Closing Documents;
(c) this Agreement has been duly authorized by all necessary actions on
the part of Purchaser and its partners, duly executed and delivered by Purchaser
and constitutes a legal, valid and binding obligation of Purchaser enforceable
against it in accordance with its terms except as the enforcement may be limited
by (i) the effect of the laws and judicial decisions of the State of Delaware,
(ii) the discretion of any court or governmental or public
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body, authority, bureau or agency before which any proceeding may be brought or
(iii) bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally;
(d) to Purchaser's knowledge, no consent, license, approval or
authorization of, or filing, registration or declaration with, or exemption by,
any governmental or public body, authority, bureau or agency is required in
connection with the execution, delivery or performance by Purchaser of this
Agreement and all of the other Closing Documents to which it is a party, other
than those which have been obtained;
(e) Purchaser's execution, delivery and performance of this Agreement
and the other Closing Documents to which it is a party do not and will not
violate (i) Purchaser's certificate of limited partnership, limited partnership
agreement or the terms of any security issued by it, or (ii) to Purchaser's
knowledge, any law, governmental regulation, judgment, order, writ, injunction
or decree applicable to Purchaser in any manner which will materially adversely
affect Purchaser's ability to perform its obligations hereunder, (iii) provided
that all necessary consents are obtained, do not and will not constitute a
default or event of default under any instrument, contract, agreement, lease or
other undertaking to which Purchaser is a party or by which it or any of its
properties may be subject or bound in a manner which will materially adversely
affect its ability to perform the same, or (iv) do not result and will not
result in the creation or imposition of any lien, pledge, mortgage, claim,
charge or encumbrance upon any of its property, except as permitted by the
Closing Documents;
(f) to Purchaser's knowledge without any inquiry, there is no action,
suit or proceeding pending or threatened in writing against or affecting
Purchaser in any court, or by or before any federal, state, municipal or other
governmental department, commission, board, bureau or instrumentality which
would have any effect on Purchaser's ability to execute and perform its
obligations under this Agreement;
(g) Purchaser has not dealt with any broker, agent or finder in
connection with the transaction contemplated by this Agreement other than Gelcor
Realty, Inc ("Gelcor"). Purchaser shall be solely responsible for any fees or
costs associated with services rendered by Gelcor. Purchaser has entered into a
separate agreement with Gelcor for services rendered to Purchaser in connection
with the transaction contemplated by this Agreement. To the extent Purchaser
engages a broker in connection with obtaining financing for the acquisition of
the Property, the Shares or the Interests, the obligations with respect to such
broker in connection with such financing shall be the responsibility of
Purchaser. Purchaser shall indemnify and hold harmless Seller, Renat and Xxxx
from and against any cost, expense (including without limitation reasonable
attorneys' fees and disbursements), claim, liability or damage arising out of
any claim or demand by any broker, consultant, finder or similar agent claiming
to have dealt with Purchaser in connection with this Agreement and the
transaction contemplated hereby;
(h) From and after the Closing Date, Purchaser and each of Purchaser's
assignees, if any, shall comply with all the requirements, representations,
covenants and negative covenants, as the same may be amended from time to time,
contained in any documents listed on Schedule 11(h) hereto (the documents,
instruments, certificates, letters and opinions listed on Schedule 11(h) are
hereinafter collectively referred to as the "Operative Documents");
11
(i) Purchaser has not filed any voluntary petition in bankruptcy or
been adjudicated a bankrupt or insolvent, or filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar or other relief
for debtors, or sought or consented to or acquiesced in the appointment of any
trustee, receiver, conservator or liquidator for all or any substantial part of
its properties;
(j) Purchaser has a net worth of not less than $75,000,000 and
otherwise satisfies (or will satisfy on the Closing Date) all of the conditions
to transfer and complies with all of the restrictions on transfer (or will
comply on the Closing Date) set forth in the Operative Documents, including,
without limitation, in Article VII of each of those Participation Agreements,
dated as of June 4, 1997, by and among the Owner Trustee, the Co-Trustee and
certain other parties; and
(k) the making, execution and delivery of this Agreement by Purchaser
has been induced by no representations, warranties, covenants or agreements
other than those expressly set forth in this Agreement.
12. Representations, Warranties and Covenants of Seller. Seller represents,
warrants and covenants to Purchaser as of the date hereof as follows:
(a) Seller has all requisite power and authority to perform its
obligations under this Agreement and each of the other Closing Documents to
which it is a party;
(b) Owner Trustee is a national banking association, validly existing
and in good standing and has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of the other Closing
Documents to which it is a party; and the individual executing this Agreement on
behalf of Owner Trustee hereby represents and warrants that such person has the
capacity set forth on the signature page hereof with full power and authority to
bind Owner Trustee to the terms hereof;
(c) Co-Trustee is an individual, who has the capacity set forth on the
signature page hereof with full power and authority to be bound by the terms of
this Agreement;
(d) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Seller and constitutes a legal, valid and binding
obligation of Seller enforceable against it in accordance with its terms except
as the enforcement may be limited by (i) the effect of the laws and judicial
decisions of the jurisdiction of formation of Trust Agreement C and Trust
Agreement D, (ii) the discretion of any court or governmental or public body,
authority, bureau or agency before which any proceeding may be brought or (iii)
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally;
(e) to Seller's knowledge, subject to receipt of all required consents
on Schedule 13, no consent, license, approval or authorization of, or filing,
registration or declaration with, or exemption or other action by, any
governmental or public body, authority, bureau or agency is required in
connection with the execution, delivery or performance by Seller of this
Agreement or the transactions herein contemplated or the Closing Documents to
which it is a party other than those which have been obtained;
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(f) Owner Trustee's performance, execution and delivery of this
Agreement and the other Closing Documents to which it is a party (i) provided
that all necessary consents and approvals are obtained, do not and will not
violate (x) the terms, conditions, or covenants of Trust Agreement C or Trust
Agreement D, or (y) to Owner Trustee's knowledge, any law, governmental
regulation, judgment, order, writ, injunction or decree applicable to Owner
Trustee in any manner which will materially adversely affect Owner Trustee's
ability to perform its obligations hereunder, (ii) provided that all necessary
consents and approvals are obtained (including, without limitation, consents of
the registered owners of the Notes and any other applicable party) and all of
Purchaser's representations and warranties contained herein are true and
correct, do not and will not violate the provisions of, or constitute a default
or an event of default under the Mortgage, (iii) provided that all necessary
consents are obtained and all of Purchaser's representations and warranties
contained herein are true and correct, do not and will not constitute a default
or an event of default under any instrument, contract, agreement, lease or other
undertaking to which Owner Trustee is a party or by which any of its properties
may be subject or bound in a manner which will materially adversely affect its
ability to perform the same; or (iv) do not result and will not result in the
creation or imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property pursuant to such agreement or instrument,
except as permitted by the Closing Documents;
(g) Co-Trustee's performance, execution and delivery of this Agreement
and the other Closing Documents to which it is a party (i) provided that all
necessary consents and approvals are obtained, do not and will not violate (x)
the terms, conditions, or covenants of Trust Agreement C or Trust Agreement D,
or (y) to Co-Trustee's knowledge, any law, governmental regulation, judgment,
order, writ, injunction or decree applicable to Co-Trustee in any manner which
will materially adversely affect Co-Trustee's ability to perform its obligations
hereunder, (ii) provided that all necessary consents are obtained (including,
without limitation, consents of the registered owners of the Notes and any other
applicable party), do not and will not violate the provisions of, or constitute
a default or an event of default under the Mortgage, (iii) provided that all
necessary consents are obtained, do not and will not constitute a default or an
event of default under any instrument, contract, agreement, lease or other
undertaking to which Co-Trustee is a party or by which any of its properties may
be subject or bound in a manner which will materially adversely affect its
ability to perform the same; or (iv) do not result and will not result in the
creation or imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property pursuant to such agreement or instrument,
except as permitted by the Closing Documents;
(h) to Seller's knowledge, there is no action, suit or proceeding
pending or threatened in writing against or affecting Seller or the Property in
any court, or by or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality which would
have any effect on Seller's ability to execute and perform its obligations under
this Agreement;
(i) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code;
(j) Seller has not filed any voluntary petition in bankruptcy or been
adjudicated a bankrupt or insolvent, or filed any petition or answer seeking any
reorganization,
13
liquidation, dissolution or similar relief under any federal bankruptcy or
insolvency laws, or other relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator of all or any substantial part of its properties or interest in the
Land or the Property;
(k) Seller has not dealt with any broker in the negotiations of the
transactions contemplated by this Agreement other than Gelcor, whose fees and
expenses shall be paid by Purchaser. Seller shall indemnify and hold harmless
Purchaser from and against any cost, expense (including, without limitation,
reasonable attorneys' fees and disbursements), claim, liability or damage
arising out of any claim or demand by any broker, consultant, finder or similar
agent (other than Gelcor) claiming to have dealt with Seller in connection with
this Agreement and the transaction contemplated hereby;
(l) to Seller's actual knowledge, the Leases are in full force and
effect, and Seller has no actual knowledge of any current material default in
the performance of the obligations of any party under the Leases;
(m) after the date hereof and prior to the Closing, except as required
under the Leases, Seller shall not sell or otherwise transfer without
Purchaser's consent any part of the Property, or any interest therein (provided,
however, that Purchaser acknowledges Seller is permitted to enter into
negotiations for the sale of, and sell, the Surrendered Property);
(n) after the date hereof and prior to the Closing, except as required
under the Operative Documents, Seller shall not enter into or approve any new
subleases of the Land and Improvements, or amend, modify or extend the Leases,
without the prior written consent of Purchaser (which consent shall not be
unreasonably withheld or delayed), except as required pursuant to the terms and
conditions of the Operative Documents;
(o) to Seller's knowledge, except with respect to the Surrendered
Property, Seller is the owner of the Estate for Years in the Land, and, to
Seller's knowledge, Seller is the fee owner of the Improvements and Property,
all of which are subject to the Permitted Exceptions. Notwithstanding the
foregoing, Seller makes no representations, warranties or covenants with respect
to any title matters, it being expressly agreed that Purchaser is relying solely
on title insurance commitments issued by the Title Company with respect to such
matters;
(p) the making, execution and delivery of this Agreement by Seller has
been induced by no representations, warranties, covenants or agreements other
than those expressly set forth in this Agreement; and
(q) to Seller's knowledge, Seller has not received any written
condemnation notice with respect to the Property.
13. Closing; Conditions to Closing.
(a) Closing. As used herein, "Closing" shall mean the closing of the
transactions contemplated herein on the Closing Date (as hereinafter defined).
On or prior to February 5, 2003, Purchaser shall deliver to Seller, Renat and
Xxxx a written notice (the "Purchase Notice") stating whether the transaction
contemplated hereby shall be an Asset
14
Purchase, a Share Purchase or an Interest Purchase; provided, however, that
Purchaser shall not have the right to elect to structure the transaction as an
Asset Purchase and the transaction shall be structured as a Share Purchase or an
Interest Purchase (as selected by Purchaser) if, at the time of delivery of such
Purchase Notice, (i) Purchaser has not yet obtained all of the required consents
and approvals, including, without limitation, the consents and approvals listed
on Schedule 13 hereto, with respect to its assumption or satisfaction of the
Debt, its purchase of the Property and such other consents and approvals as are
required to consummate the Asset Purchase or (ii) Purchaser has not entered into
a definitive purchase and sale agreement (the "Remaindermen's Agreement),
reasonably satisfactory to Seller, Xxxx and Renat with the Remaindermen that
binds the Remaindermen to sell their entire right, title and interest in and to
the Land (the "Remaindermen's Interests") to Purchaser for a purchase price not
to exceed $10,500,000 and in which the Remaindermen irrevocably grant all
consents and approvals required with respect to, and grant irrevocable proxies
for any remaining consent and approval rights in connection with, Purchaser's
assumption or satisfaction of the Debt, Purchaser's purchase of the Property and
consummation of the Asset Purchase. Seller, Xxxx and Renat shall have one
business day after Seller's receipt of the Remaindermen's Agreement to review
such agreement to confirm that the Remaindermen's Agreement conforms to the
requirements of this Section 13(a). If Seller, Xxxx or Renat do not notify
Purchaser of any objections to the Remaindermen's Agreement within such period,
Seller, Xxxx and Renat shall be deemed to have approved the Remaindermen's
Agreement in the form presented by Purchaser. For purposes of this Section 13(a)
only, Purchaser shall be deemed to have delivered the Remaindermen's Agreement
when transmitted by e-mail to counsel and general counsel of Seller and counsel
and general counsel of Xxxx. If the transaction is structured as an Interest
Purchase, this Agreement shall automatically be amended as of the date of the
delivery of the Purchase Notice as set forth in Section A of Exhibit I hereto.
If the transaction is structured as a Share Purchase, this Agreement shall
automatically be amended as of the date of the delivery of the Purchase Notice
as set forth in Section B of Exhibit I hereto. The Closing shall take place
through an escrow with the Title Company with the closing documents and actions
not previously delivered or taken to be delivered to the Title Company. If
Closing cannot occur through an escrow, then Closing shall occur at 10:00 a.m.
(local time) on the Closing Date (defined below) at the offices of Xxxxxx, Xxxxx
& Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000. The Closing
Date shall be on or before February 28, 2003 (the "Scheduled Closing Date") (the
Scheduled Closing Date, as accelerated from time to time as provided for more
fully below shall be the "Closing Date"). At any time prior to the Scheduled
Closing Date, Purchaser may accelerate the Scheduled Closing Date as hereinafter
provided. Purchaser may accelerate the Scheduled Closing Date by delivering
written notice of such acceleration to Seller at least five days before the date
Purchaser desires to reschedule Closing (the "Accelerated Closing Date"). If the
Accelerated Closing Date occurs on or before January 9, 2003, the Purchase Price
shall be decreased in the amount of Seven Million and 00/100 Dollars
($7,000,000).
(b) Conditions to Closing (Purchaser). Purchaser's obligations under
this Agreement to proceed with Closing are subject to the satisfaction (or
waiver by Purchaser to the extent they may be waived as hereinafter provided) of
the following conditions on or before the Closing Date:
15
(i) Purchaser shall have performed its due diligence, document
review and inspections in accordance with Section 7 above
and no Termination Notice shall have been delivered.
(ii) If and to the extent required under the Leases, Seller shall
deliver an estoppel certificate, in the form attached hereto
as Exhibit D, to Purchaser from Lessee, and if and to the
extent that a Tenant Estoppel Certificate can be obtained
under the terms of the applicable sublease from each
subtenant occupying 20,000 rentable square feet or more
within any of the Portfolio Properties, Seller shall deliver
an estoppel certificate from such sublessee to Purchaser.
(iii) If Lessee fails to deliver a Tenant Estoppel Certificate in
substantially the form attached as Exhibit D, Seller shall
deliver an estoppel certificate to Purchaser from Seller in
the form attached hereto as Exhibit H, provided that, in the
event that Lessee delivers a Tenant Estoppel Certificate
that omits items included in the form attached as Exhibit D,
then the estoppel certificate delivered by Seller shall only
be required to include those items in Exhibit H that are
omitted from the Tenant Estoppel Certificate delivered to
Purchaser.
(iv) The Lessee and any third parties enjoying a right of first
refusal or offer, option to purchase, or other similar
rights to purchase the Property, if any, shall have waived
said rights.
(v) In the event Purchaser elects to assume the obligations
under the Mortgage, Purchaser shall have obtained the right
to assume such Mortgage from the beneficiaries holding the
Mortgage or, if Purchaser elects to prepay all or any part
of the obligations evidenced by the Notes and secured by the
Mortgage, Purchaser shall have obtained the requisite
consent to make such prepayment from all necessary parties.
(vi) Seller, Renat and Xxxx shall have obtained all of the
consents and approvals listed on Schedule 13 in form and
substance satisfactory to Purchaser.
(vii) Purchaser shall have entered into a written agreement with
the Remaindermen binding the Remaindermen to sell the
Remaindermen's Interests (defined below) to Purchaser for a
purchase price acceptable to Purchaser.
(viii) All of the representations and warranties of Seller
contained in this Agreement that are not qualified by
materiality shall be true and correct in all material
respects as of the date of Closing, all of the
representations and warranties of Seller contained in this
16
Agreement that are qualified by materiality shall be true
and correct as of the date of Closing, and Seller shall have
performed and satisfied in all material respects all
agreements, covenants and conditions it is required to
perform and satisfy under this Agreement prior to or at
Closing, or, in the event this Agreement is restructured as
an Interest Purchase, all of the representations and
warranties of Seller and Renat contained in this Agreement
that are not qualified by materiality shall be true and
correct in all material respects as of the date of Closing,
all of the representations and warranties of Seller and
Renat contained in this Agreement that are qualified by
materiality shall be true and correct as of the date of
Closing, and Seller and Renat shall have performed and
satisfied in all material respects all agreements, covenants
and conditions they are required to perform and satisfy
under this Agreement prior to or at Closing or, in the event
this Agreement is restructured as a Share Purchase, all of
the representations and warranties of Seller and Xxxx
contained in this Agreement that are not qualified by
materiality shall be true and correct in all material
respects as of the date of Closing, all of the
representations and warranties of Seller and Xxxx contained
in this Agreement that are qualified by materiality shall be
true and correct as of the date of Closing, and Seller and
Xxxx shall have performed and satisfied in all material
respects all agreements, covenants and conditions they are
required to perform and satisfy under this Agreement prior
to or at Closing.
(ix) If structured as an Asset Purchase, delivery by Seller of
good and marketable title to Seller's interest in the
Property free and clear of all liens and encumbrances other
than (x) liens and encumbrances related to Debt and (y)
Permitted Encumbrances.
(x) An assignment by Seller, or such other third party as is
necessary to effectuate such assignment, of all guaranties,
indemnities and warranties affecting the Property to which
Seller is a beneficiary.
(xi) Purchaser shall have received fully executed copies of the
Closing Documents.
(xii) Purchaser shall have obtained the approval of the Board of
Trustees of American Financial Realty Trust on or before
December 24, 2002.
(c) Conditions to Closing (Seller, Renat and Xxxx). The obligations of
Seller, Renat and Xxxx under this Agreement to proceed with Closing are subject
to the satisfaction (or waiver by Seller, Renat and Xxxx to the extent they may
be waived as hereinafter provided) of the following conditions on or before the
Closing Date:
17
(i) If Lessee is required to do so under the Lease, Seller shall
obtain an estoppel certificate from Lessee in substantially
the form attached hereto as Exhibit D.
(ii) All of the representations and warranties of Purchaser
contained in this Agreement that are not qualified by
materiality shall be true and correct in all material
respects as of the date of Closing, all of the
representations and warranties of Purchaser contained in
this Agreement that are qualified by materiality shall be
true and correct as of the date of Closing, and Purchaser
shall have performed and satisfied in all material respects
all agreements, covenants and conditions it is required to
perform and satisfy under this Agreement prior to or at
Closing.
(iii) Purchaser shall have purchased the Remaindermen's Interests
for a purchase price acceptable to Purchaser. If Purchaser
is able to acquire the Remaindermen's Interests for less
than $16,000,000 (the "Remaindermen Buy-Out Amount"), then
the Purchase Price shall be increased by an amount equal to
forty percent (40%) of the amount by which the purchase
price paid by Purchaser for the Remaindermen's Interests is
less than the Remaindermen Buy-Out Amount. Seller agrees to
cooperate with Purchaser, at no cost or expense to Seller,
with Purchaser's negotiations to acquire the Remaindermen's
Interests on or prior to the Closing Date.
(iv) The Lessee and any third parties enjoying a right of first
refusal or offer, option to purchase, or other similar
rights to purchase the Property, if any, shall have waived
said rights.
(v) Purchaser shall have obtained all of the consents and
approvals listed on Schedule 13 in form and substance
satisfactory to Seller, Renat and Xxxx.
(vi) Purchaser shall have paid the Purchase Price as set forth in
Section 3.
(vii) Seller shall have received fully executed copies of the
Closing Documents.
(viii) If the transaction contemplated by this Agreement is
structured as a Share Purchase, then Purchaser shall have
delivered the Guarantees in the forms attached as Exhibit
J-1 and Exhibit J-2 hereto (the "Purchaser Guarantees") and
Xxxx shall have been released from the Xxxx Guarantees.
(d) Failure of Conditions to Closing. If one or more of the conditions
to Closing described in Section 13(b) hereof is not satisfied by Seller, Renat
and Xxxx or waived by Purchaser on or before the Closing, and the failure of
such conditions to be satisfied is not a
18
result of a default by Purchaser, then Purchaser shall have the right to
terminate this Agreement and the escrow created hereby by giving written notice
of termination to Seller, Renat and Xxxx. If one or more of the conditions to
Closing described in Section 13(c) hereof are not satisfied by Purchaser or
waived by Seller, Renat and Xxxx on or before the Closing, and the failure of
such conditions to be satisfied is not a result of a default by Seller, Renat or
Xxxx, then Seller, Renat and Xxxx, shall have the right to terminate this
Agreement and the escrow created hereby by giving written notice of termination
to Purchaser.
14. Documents to be Delivered at Closing. At or prior to Closing, the
following documents, certificates, opinions and agreements (the "Closing
Documents"), in form and substance satisfactory to Seller, Renat, Xxxx and
Purchaser shall be executed and/or delivered by the respective parties thereto:
(i) Special Warranty Deed to the Estate for Years in Land and
fee simple in Improvements (in substantially the form
attached hereto as Exhibit E-1 with respect to the parcels
located in South Carolina; in substantially the form
attached hereto as Exhibit E-2 with respect to the parcels
located in Florida; in substantially the form attached
hereto as Exhibit E-3 with respect to the parcels located in
North Carolina; in substantially the form attached hereto as
Exhibit E-4 with respect to the parcels located in Maryland;
in substantially the form attached hereto as Exhibit E-5
with respect to the parcels located in Virginia; and in
substantially the form attached hereto as Exhibit E-6 with
respect to the parcels located in Washington, DC), and
Limited Warranty Deed to the Estate for Years in Land and
fees simple in Improvements (in substantially the form
attached hereto as Exhibit E-7 with respect to the parcels
located in Georgia), unless the transaction is structured as
an Interest Purchase or Share Purchase, in which case the
foregoing shall not be required;
(ii) an Assignment and Assumption Agreement in substantially the
form attached hereto as Exhibit F-1) (if the transaction
contemplated by this Agreement is an Asset Purchase), an
Assignment and Assumption Agreement in substantially the
form attached hereto as Exhibit F-2) (if the transaction
contemplated by this Agreement is an Interest Purchase);
provided, however, that if the transaction contemplated by
this Agreement is a Share Purchase, no Assignment and
Assumption Agreement shall be required;
(iii) Secretary's certificates and corporate resolutions of
Purchaser and Seller;
(iv) Incumbency certificates of Seller and Purchaser;
(v) Good standing certificates of Seller and Purchaser;
19
(vi) Transfer Tax Affidavits/Forms, if any, unless the
transaction is restructured as an Interest Purchase or Share
Purchase, in which case the foregoing shall not be required;
(vii) "Nonforeign" Person Certificates from Seller pursuant to
Treas. Reg. 1.1445-2(b)(2);
(viii) any other documents required to transfer to Purchaser all
right, title, and interest of Seller in, to, or in any way
arising out of or connected with the Property or the
Operative Documents, and, in the event the transaction is
restructured as an Interest Purchase or Share Purchase, any
other documents required to transfer to Purchaser all right,
title, and interest of Renat or Xxxx in, to, or in any way
arising out of or connected with the Interests or Shares,
respectively;
(ix) Title affidavits and any other documents reasonably required
by the Title Company;
(x) Proof as to the waiver and/or lapse of all rights of first
refusal and/or first offer or options to purchase, if any;
(xi) a certificate by each of Seller and Purchaser to the effect
that their respective representations and warranties
contained herein are true and correct as of the Closing;
(xii) Any other documents required pursuant to this Agreement or
reasonably requested by the Title Company; and
(xiii) Appropriate resolutions and consents of Seller and Purchaser
(or evidence that such consents or resolutions are not
required).
15. Purchaser's Assignees. Purchaser, at Purchaser's sole cost and expense,
may designate separate assignees to acquire title to the Property, or in the
event that the transaction is restructured as a Share Purchase or Interest
Purchase, the Shares or the Interests; provided, however, that any such assignee
shall satisfy the net worth requirements and otherwise satisfy all of the
conditions to transfer and comply with all of the restrictions on transfer set
forth in the Operative Documents, including, without limitation, in Article VII
of each of those Participation Agreements, dated as of June 4, 1997, by and
among the Owner Trustee, the Co-Trustee and certain other parties. In the event
Purchaser elects to take title to the Property subject to the Mortgage, any
assignment of this Agreement or Purchaser's rights hereunder shall be subject to
the terms of the Mortgage pertaining to transfers. In the event Purchaser elects
to prepay all or any part of the loan as evidenced by the Notes and secured by
the Mortgage, any such prepayment shall be subject to the terms of the Mortgage
and any other conditions required by the registered owners of such Notes or
other applicable party.
16. Notices. All notices, offers, acceptances, rejections, consents,
requests and other communications hereunder shall be in writing and shall be
deemed to have been given (i) when
20
delivered in person or (ii) when sent by telecopier (with receipt confirmed) or
(iii) on receipt after being sent by express mail or delivery service
guaranteeing overnight delivery, provided that in the case of clause (ii) a copy
is mailed by first class registered or certified mail, postage prepaid, return
receipt requested, in each case addressed as follows:
As to Owner Trustee: State Street Bank and Trust Company of
Connecticut, N.A.
Financial Markets Group
Corporate Trust
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
As to Co-Trustee: Xxxxxxx X. Xxxxxxx
c/o State Street Bank and Trust Company of
Connecticut, N.A.
Financial Markets Group
Corporate Trust
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
As to Renat or Xxxx: c/o Xxxx Commercial Credit Corporation
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: CMG Operations
Telephone: (000)000-0000
Facsimile: (000)000-0000
with a copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx Xxxxxxxx, Esq.
Telephone: (000)000-0000
Facsimile: (000)000-0000
As to Purchaser: c/o American Financial Realty Trust
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
21
with a copy to: American Financial Realty Trust
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx Xx.
Telephone: (000)000-0000
Facsimile: (000)000-0000
with a copy to: Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000)000-0000
Facsimile: (000)000-0000
or to such other person or address as either party shall furnish to the other
party in writing.
17. Entire Agreement. This Agreement contains the entire agreement between
Seller, Renat, Xxxx and Purchaser with respect to the purchase and sale
contemplated hereby and supersedes any prior agreements with respect thereto.
18. Further Acts. Each party, upon the request of another party, agrees to
perform such further acts and to execute and deliver such other documents as are
reasonably necessary to carry out the provisions of this Agreement.
19. Xxxx Guarantees. In the event of a Share Purchase, Purchaser (i) shall
replace the Guaranty, dated June 4, 1997, made by Xxxx in favor of the
Guaranteed Parties (as defined in such Guaranty) and the Guaranty, dated January
11, 1999, made by Xxxx in favor of the Guaranteed Parties (as defined in such
Guaranty) (together, the "Xxxx Guarantees") with the Purchaser Guarantees, (iii)
shall use its commercially reasonable efforts to obtain the consents of the
Guaranteed Parties to the termination of the Xxxx Guarantees and (iii) shall
indemnify and hold harmless Xxxx and Renat from and against any and all
liability, loss, cost and expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising from, in connection with, or related
to the Xxxx Guarantees. This provision shall survive the Closing.
20. Survival of Obligations. The covenants, agreements, obligations and
indemnities of Purchaser, Seller, Renat and Xxxx set forth in Sections 4, 5, 6,
7(a)(i) (only (i) the second sentence of second paragraph and (ii) the third
paragraph), 7(c), 8(a)-8(e), 9, 16, 18, 19, 20, 21, 24, 27, 28, 29, 30, 31, 34
and 36 of this Agreement shall survive the Closing (except for such covenants,
agreements and obligations that are satisfied, performed or waived on or prior
to Closing). The representations and warranties of Purchaser set forth in
Section 11 of this Agreement and the representations and warranties of Seller
(if the transaction is structured as an Asset Purchase), Renat (if the
transaction is structured as an Interest Purchase), or Xxxx (if the transaction
is structured as a Share Purchase) set forth in Section 12 of this Agreement,
shall, except as otherwise provided in this Agreement, survive the Closing for a
period of two years following the Closing Date or, if later, in the case of any
representations and warranties with respect to taxes, the applicable statute of
limitations with respect to such taxes; provided,
22
however, that the representations and warranties of Seller (if the transaction
is structured as an Asset Purchase) contained in Sections 12(a), (b), (c), (d),
and (o), the representations and warranties of Renat (if the transaction is
structured as an Interest Purchase) contained in Sections 12(a), (b), (c) and
(o), and the representations and warranties of Xxxx (if the transaction is
structured as a Share Purchase) contained in Sections 12(a), (b), (c) and (o),
shall survive without being limited by the aforementioned two-year survival
period.
21. Limitation on Liability. No party hereunder shall have any obligation
to indemnify any other party hereunder except as expressly provided in this
Agreement, and under no circumstances shall Seller, Renat or Xxxx, individually
or collectively, have indemnification obligations to Purchaser under this
Agreement or any agreements, certificates or documents delivered in connection
herewith, including, without limitation, the agreements, certificates and
documents attached hereto, in an amount in excess of the Purchase Price. IN NO
EVENT SHALL ANY PARTY BE LIABLE TO THE ANOTHER PARTY OR ANY OTHER PERSON FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS
AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
22. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
24. Governing Law; Consent to Jurisdiction and Venue. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York, including all matters of construction, validity and
performance (including sections 5-1401 and 5-1402 of the New York General
Obligations Law but excluding all other choice of law and conflicts of law
rules). EACH PARTY HERETO AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN
RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR
CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK (THE "CHOSEN COURT") AND (A) IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURT, (B) WAIVES ANY
OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURT,
(C) WAIVES ANY OBJECTION THAT THE CHOSEN COURT IS AN INCONVENIENT FORUM OR DOES
NOT HAVE JURISDICTION OVER ANY PARTY HERETO AND (D) AGREES THAT SERVICE OF
PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF
NOTICE IS GIVEN IN ACCORDANCE WITH THIS AGREEMENT.
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25. Exhibits and Schedules. All of the Exhibits and Schedules annexed
hereto are incorporated herein by reference and form part of this Agreement.
26. Miscellaneous. In the event that any provision of this Agreement shall
be determined to be void or unenforceable, such determination shall not affect
the remaining provisions of this Agreement; and this Agreement shall not be
construed against the party preparing it but shall be construed as if both
parties prepared this Agreement.
27. Third Parties. This Agreement shall not be deemed to confer in favor of
any third parties any rights whatsoever as third-party beneficiaries, the
parties hereto intending by the provisions hereof to confer no such benefits or
status.
28. Jury Waiver. SELLER AND PURCHASER WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTER-CLAIM FILED BY EITHER PARTY (AND THEIR RESPECTIVE NOMINEES, DESIGNEES,
AND ASSIGNEES), WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THIS
AGREEMENT OR THE SALE OF THE PROPERTY OR ANY ACTS OR OMISSIONS OF ANY SUCH
PERSON, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
THIS SECTION 28 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING.
29. Successors and Assigns. Subject to the provisions of Section 15 hereof,
this Agreement shall be binding upon and inure to the benefit of each of the
parties hereto and their respective permitted transferees, successors and
assigns.
30. No Joint Venture. Notwithstanding anything to the contrary contained
herein, this Agreement shall not be deemed or construed to make the parties
hereto partners or joint venturers, or to render either party liable for any of
the debts or obligations of the other, it being the intention of the parties to
merely create the relationship of seller and purchaser with respect to the
Property to be conveyed as contemplated hereby.
31. Confidentiality. Each party agrees to maintain in confidence the
dealings, negotiations and agreements of the parties with respect to this
Agreement and the transaction contemplated hereby, and none of them shall make
any disclosure of any information regarding those matters (except to their
members, officers, directors, employees, accountants, lenders, attorneys,
consultants, appropriate governmental personnel, and others who have a need for
that information and who agree to comply with this provision, and except as to
any information which is a matter of public record or provided in connection
with applicable governmental proceedings), (a) unless both Seller, Xxxx, Renat
and Purchaser otherwise agree in writing, or (b) except as may be necessary in
order to comply with applicable law after consultation with legal counsel.
32. Saturdays, Sundays or Holidays. In the event that any of the dates
specified in this Agreement shall fall on a Saturday, Sunday or a holiday, then
the date of such action shall be deemed to be extended to the next business day.
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33. Section Headings. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
34. Cooperation. The parties hereto hereby agree to cooperate with each
other in providing all information, documents and other materials within their
reasonable control necessary to assist Purchaser in the investigation of the
Property and Seller as contemplated by this Agreement. Purchaser agrees to
reasonably cooperate with Seller, Renat and Xxxx in order to minimize any
Transfer Taxes and similar taxes imposed on Seller, Renat or Xxxx in connection
with the transaction.
35. Interim Covenants. From and after the date hereof and up to and
including the Closing Date or the termination of this Agreement, Seller shall
promptly deliver (to the extent actually received by Seller) to Purchaser copies
of written default notices, notices of lawsuits (including, without limitation,
condemnation proceedings), and notices of violations affecting the Property,
Seller or the Shares or Interests received by Seller. In addition, Seller shall
deliver (to the extent actually received by Seller) to Purchaser copies of
written default notices, notices of lawsuits (including, without limitation,
condemnation proceedings), and notices of violations affecting the Property,
Seller or the Shares or Interests which are now in the possession of Seller.
36. Section 1031 Exchange. If the transaction contemplated by this
Agreement is structured as an Asset Purchase, Purchaser and Seller agree to
execute any documents necessary for Seller to effectuate the transfer of the
subject property as reasonably requested by Purchaser, including, without
limitation, an assignment of any purchase agreement, to a "qualified
intermediary" as defined in Treas. Reg. 1.1031(k)-(1)(g)(4) if requested by such
qualified intermediary in order for said party to be able to effectuate a
"like-kind exchange" pursuant to Internal Revenue Code Section 1031 and the
regulations promulgated thereunder, provided that such actions by Seller, as
determined by Seller in its sole and absolute discretion, have no adverse impact
on Seller. Purchaser shall indemnify and hold Seller, Renat and Xxxx harmless
from and against any tax, loss, damage or claim (including, without limitation,
reasonable court costs and attorneys' fees) arising out of, resulting from, or
relating to, any action taken by Seller pursuant to this Section 36.
[the remainder of the page is intentionally blank]
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, under seal, by their respective signatories thereunto duly authorized.
SELLER:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity but solely as
Owner Trustee under Trust Agreement C
By: ___________________________________
Name: _____________________________
Title: ____________________________
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity but solely as
Owner Trustee under Trust Agreement D
By: ___________________________________
Name: _____________________________
Title: ____________________________
________________________________________
XXXXXXX X. XXXXXXX, as successor
Co-Trustee to Xxxx Xxxx Seakas, as
successor Co-Trustee to Xxxxx Xxxxxxx,
not in her individual capacity but
solely as Co-Trustee under Trust
Agreement C
________________________________________
XXXXXXX X. XXXXXXX, as successor
Co-Trustee to Xxxx Xxxx Seakas, as
successor Co-Trustee to Xxxxx Xxxxxxx,
not in her individual capacity but
solely as Co-Trustee under Trust
Agreement D
RENAT, INC.
A Delaware corporation
By: ___________________________________
Name: _____________________________
Title: ____________________________
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XXXX COMMERCIAL CREDIT CORPORATION
A Delaware corporation
By: __________________________________
Name: ____________________________
Title: ___________________________
PURCHASER:
FIRST STATES GROUP, L.P., a Delaware
limited partnership
By: FIRST STATES GROUP, LLC,
Its general partner
By: ______________________________
Name: ________________________
Title: _______________________
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