PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between TBC Kingsdale, Inc., a Massachusetts corporation ("Seller"), and RRC
Acquisitions, Inc., a Florida corporation ("Purchaser"), as of September 19,
1997 (the "Effective Date").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
SECTION 1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") located in
the City of Upper Arlington, Franklin County, Ohio, being more
particularly described on Exhibit A attached hereto and made a part
hereof.
(b) Easements. All easements, if any, benefiting the Land or
the Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities known
as "Kingsdale Center" (the "Improvements") in and on the Land, and
having an address of Northwest Boulevard, Upper Arlington, Ohio.
(e) Leases. All leases (the "Leases") of space in the Property
and any amendments, modifications and addenda thereto and any
guarantees thereof, concession leases, and all tenant security deposits
held by Seller on the Closing Date (as defined in Section 6.1).
(f) Tangible Personal Property. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes and other personal
property, if any, owned by Seller, located on and used in connection
with the Land and the Improvements (the "Tangible Personal Property").
(g) Contracts. To the extent assignable without the consent of
third parties, all written contracts and agreements pertaining to the
Property, and not cancelable on thirty (30) days notice without penalty
or premium (collectively, the "Contracts"), including, but not limited
to, management contracts, service contracts, equipment leases and
maintenance contracts.
(h) Intangible Property. To the extent assignable without the
consent of third parties, all intangible property (the "Intangible
Property"), if any, owned by Seller and pertaining to the Land, the
Improvements, or the Tangible Personal Property including, without
limitation, transferable utility contracts, transferable telephone
exchange numbers, plans and specifications, engineering plans and
studies, floor plans and landscape plans.
SECTION 2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be SEVENTEEN MILLION SIX HUNDRED FIFTY THOUSAND DOLLARS
($17,650,000.00) subject to the prorations and adjustments set forth herein and
shall be paid in cash by Purchaser to Seller at the Closing (as defined in
Section 6.1) by wire transfer in accordance with wire transfer instructions to
be provided by Seller.
SECTION 3.
XXXXXXX MONEY
3.1 Xxxxxxx Money.
(a) Purchaser shall execute and deliver this Agreement, by fax, to
Seller on or before 5:00 p.m. on September 19, 1997. Purchaser shall deliver to
the Title Company (as defined in Section 6.1) on or before 2:00 p.m. on the date
the Seller executes and delivers to Purchaser, by fax, a copy of this Agreement
already signed by Purchaser: (x) if the Seller has made such delivery on or
before 2:00 p.m., on the date of such delivery, and (y) if the Seller has made
such delivery after 2:00 p.m., on the immediately following business day, by
wire transfer in accordance with wire transfer instructions provided by the
Title Company, the amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000)
(which amount and any additional funds delivered by Buyer to Title Company
pursuant to this Section 3, together with all interest accrued thereon, if any,
is herein called the "Xxxxxxx Money") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Purchaser agrees
to promptly deliver or cause the Title Company to deliver to Seller written
acknowledgment by the Title Company that the executed copy of this Agreement and
the required Xxxxxxx Money have been received by and are being held by the Title
Company pursuant to the terms of this Agreement.
(b) Seller shall have the option of terminating this Agreement if the
full amount of required Xxxxxxx Money is not timely and fully delivered to the
Title Company at the time(s) and in the manner as prescribed in this Section 3.
(c) If the sale of the Property is consummated under this Agreement,
the Xxxxxxx Money shall be paid to Seller and applied to the payment of the
Purchase Price at Closing.
(d) If Seller terminates this Agreement in accordance with Section
8.2(a), the Xxxxxxx Money Deposit shall be immediately released by Title Company
to Seller as liquidated damages as provided in Section 8.2(a), and no party
hereto shall have any further obligation under this Agreement.
SECTION 4.
DELIVERIES, INSPECTIONS AND REPRESENTATIONS
4.1 Seller's Delivery Obligations.
(a) Seller has delivered to Purchaser, prior to the date hereof,
the following:
(1) Title Commitment. Commitment for Owner's Policy of Title
Insurance (the "Title Commitment") with respect to the Property dated
March 12, 1997, issued by the Title Company, and legible copies of any
restrictive covenants, easements, and other items listed as title
exceptions therein.
(2) Survey. The most recent and existing "as-built" survey of
the Property (the "Survey") in Seller's possession.
(3) Contracts. A list of all Contracts, to the extent in the
possession of Seller.
(4) Rent Roll. A rent roll identifying all Leases of space
within the Improvements.
(5) Tenant Estoppel Certificates. The Purchaser has delivered
copies of the Tenant estoppel certificates identified on Exhibit J
annexed hereto. The Tenant estoppel certificates listed on Exhibit J
are all of the tenant estoppel certificates required to be delivered by
Purchaser.
4.2 Purchaser's Satisfaction. During the period commencing on the date
hereof and ending on September 26, 1997 at 5:00 p.m. eastern standard
time (the "Approval Period"), the following matters shall be conditions
precedent to Purchaser's obligations under this Contract:
(a) Purchaser's being satisfied, in Purchaser's sole discretion,
that the Property is suitable for Purchaser's intended uses; and
(b) Purchaser's being satisfied, in Purchaser's sole discretion, with
the inspections pursuant to Section 4.4 below.
If Purchaser provides to Seller written notice ("Purchaser's Notice") that
Purchaser, in its sole discretion, is not satisfied with any of its inspection
results and therefore wishes to terminate this Agreement, then on or before the
expiration of the Approval Period Purchase may deliver the Purchaser's Notice
whereupon this Agreement shall terminate. Upon such termination, Purchaser shall
be entitled to the return of the Xxxxxxx Money, (subject to Purchaser's delivery
of the Report(s)) and neither party shall have any further obligation hereunder
except any obligations which expressly survive the termination of this
Agreement. If Purchaser fails to give the Purchaser's Notice, Purchaser shall be
deemed to be satisfied with such matters and the conditions precedent in this
Section 4.2 shall be deemed to be satisfied.
4.3 INTENTIONALLY DELETED
4.4 Inspection.
(a) Following the Purchaser's delivering, in good funds, the Xxxxxxx
Money to the Title Company and during the Approval Period, Purchaser may
inspect, test, investigate and survey: (i) the Property, (ii) all of Seller's
financial records pertaining to the operation of the Property, and (iii)
photocopies of all Leases and Contracts in the possession of Seller. The
foregoing may be done at any reasonable time during ordinary business hours upon
twenty-four (24) hours prior written notice to Seller, at Purchaser's sole cost
and in a manner not disruptive to tenants or the operation of the Property.
Notwithstanding the foregoing, Purchaser must obtain Seller's written approval
of the scope and method of any inspection, testing or investigation of the
Property (including a Phase I environmental inspection) including, but without
limitation, any inspection which would involve taking subsurface borings or
related investigations and any inspection which would materially alter the
physical condition of the Property prior to Purchaser's commencement of such
inspections, testing or investigation. Seller and its representatives, agents,
and/or contractors shall have the right to be present during any testing,
investigation, or inspection of the Property. In no event shall the Purchaser or
any of its agents, representatives or independent contractors contact any tenant
at the Property directly without Seller's prior written approval.
(b) Seller shall have no obligation to take any steps or bring any
action or proceeding or otherwise to incur any effort or expense whatsoever to
eliminate or cure any of the Purchaser's objections to any condition at the
Property.
(c) All information provided by Seller to Purchaser or obtained by
Purchaser relating to the Property in the course of Purchaser's review,
including, without limitation, any environmental assessment or audit
(collectively, the "Reports") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the confidentiality of all such
information. In the event that this transaction is not closed for any reason,
then Purchaser shall maintain the confidentiality of such information, and shall
require its agents, representatives and accountants not to disclose any such
information to any other party. Furthermore, if the proposed transaction does
not close, Purchaser shall, and as a condition precedent to the return of any
Xxxxxxx Money, return the Reports, the Survey and the Title Commitment to
Seller.
(d) Purchaser shall restore the Property to its condition existing
immediately prior to Purchaser's inspection, testing, investigation and survey
thereof, and Purchaser shall be liable for all damage or injury to any person or
property resulting from, relating to or arising out of any such inspection,
testing, investigation or survey, whether occasioned by the acts of Purchaser or
any of its employees, agents, representatives or contractors, and Purchaser
shall indemnify, defend and hold harmless Seller and its agents, employees,
officers, directors, affiliates, advisors and asset managers from any liability
resulting therefrom. This indemnification by Purchaser shall survive the Closing
or the termination of this Agreement, as applicable.
4.5 INTENTIONALLY DELETED
4.6 Purchaser's Representations and Warranties.
Purchaser represents and warrants to Seller that:
(a) Purchaser is a Florida corporation, is qualified to do business in
the State of Ohio and has the power to enter into this Agreement and to execute
and deliver this Agreement and to perform all duties and obligations imposed
upon it hereunder, and Purchaser has obtained all necessary corporate,
partnership or other organizational authorizations required in connection with
the execution, delivery and performance of this Agreement and the transaction
contemplated herein and has obtained the consent of all entities and parties
(whether private or governmental) necessary to bind Purchaser to this Agreement;
(b) neither the execution nor the delivery of this Agreement, nor the
consummation of the purchase and sale transaction contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions or
provisions of any agreement or instrument to which Purchaser, or any
shareholder, partner or related entity or affiliate of Purchaser, is a party or
by which Purchaser, any shareholder, partner or related entity or affiliate of
Purchaser, or any of Purchaser's assets is bound;
(c) Purchaser has the financial resources to timely consummate the
purchase and sale transaction contemplated by this Agreement;
(d) INTENTIONALLY DELETED
(e) Purchaser is not an "employee benefit plan" as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title I of ERISA and (b) the assets of Purchaser
do not constitute "plan assets" of one or more such plans within the meaning of
29 C.F.R.
Section 2510.3-101.
(f) INTENTIONALLY DELETED
(g) INTENTIONALLY DELETED
(h) With respect to Seller and with respect to any shareholder,
partner, related entity or affiliate of Seller, Purchaser is neither (i) a party
in interest as defined in Section 3(14) of ERISA, nor (ii) a disqualified person
as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as
amended (the "Code").
(i) that prior to the end of the Approval Period, Purchaser will have
examined and investigated to Purchaser's full satisfaction the physical,
economic and legal condition of the Property and made all other inquiries the
Purchaser deemed necessary in connection with the transaction herein
contemplated; and
(j) except to the limited extent, if any, specifically and expressly
set forth in this Agreement, Purchaser shall accept the Property "AS IS" and
"WHERE IS" at Closing, and Purchaser has not relied upon and will not rely upon,
and Seller is not liable for or bound by any, express or implied, warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto made or furnished by Seller or any of its advisors,
or any of their agents, representatives, contractors, employees, attorneys or
brokers, to whomever made or given, directly or indirectly, verbally or in
writing, unless specifically and expressly set forth herein.
The Purchaser's representations and warranties set forth in this Section 4.6
shall survive the Closing or termination of this Agreement. As a condition
precedent to Seller's obligation to close the purchase and sale transaction
contemplated in this Agreement, Purchaser's representations and warranties
contained herein must remain and be true and correct as of the Closing Date.
Prior to the Closing Date, Purchaser shall notify Seller in writing of any
facts, conditions or circumstances which render any of the representations and
warranties set forth in this Section 4.6 in any way inaccurate, incomplete,
incorrect or misleading.
4.7 Seller's Representations and Warranties.
Seller represents and warrants to Purchaser that:
(a) Seller is a corporation, duly organized and in good standing under
the laws of the State of Massachusetts, is qualified to do business in the State
of Ohio and Seller has the full right, power, and authority, without the joinder
of any other person or entity, to enter into, execute and deliver this
Agreement, and to perform all duties and obligations imposed on Seller under
this Agreement, except to the limited extent, if any, specifically and expressly
set forth in this Agreement and has the power to enter into this Agreement and
has obtained all necessary corporate authorizations required in connection with
the execution, delivery and performance of this Agreement; and
(b) neither the execution nor the delivery of this Agreement, nor the
consummation of the purchase and sale contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement conflict with
or will result in the breach of any of the terms, conditions, or provisions of
any agreement or instrument to which Seller is a party or by which Seller or any
of Seller's assets is bound.
(c) Seller is not a "governmental plan" within the meaning of Section
3(32) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code.
(d) with respect to the plan for which Purchaser is nominee, Seller is
not a disqualified person as defined in Section 4975(e)(2) of the Code.
(e) to Seller's knowledge (as hereinafter defined), Seller has not been
served with process in any litigation with respect to the Property which (i)
materially adversely affects the Property or (ii) would adversely affect the
Seller's ability to perform its obligations under this agreement.
(f) to Seller's knowledge (as hereinafter defined), Exhibit I contains
a complete list of all leases affecting the Property and all amendments and
modifications thereto.
(g) to Seller's knowledge (as hereinafter defined), Seller has not
received any written notice of any material violation of any municipal, state or
federal law from any governmental authority which (i) materially, adversely
affects the Property or (ii) would adversely affect Seller's ability to perform
its obligations under this Agreement.
(h) no execution proceedings, assignments for the benefit of creditors,
bankruptcy or reorganization proceedings, are pending against Seller.
As used herein, the term "to Seller's knowledge" shall mean only the
"current, actual knowledge without inquiry" (as defined below) from the
following designee of the Seller's representative: Xxxx X. Xxxxxxxxxx.
As used herein, the term "current actual knowledge without inquiry"
shall mean only the actual, current, conscious and not constructive, imputed or
implied knowledge of such designee. Anything herein to the contrary,
notwithstanding, such designee shall not have any personal liability or
obligation whatsoever with respect to any of the matters set forth in this
Agreement for any of the Seller's representation herein being or becoming
untrue, inaccurate or incomplete in any respect. The Seller hereby represents
and warrants that Xxxx X. Xxxxxxxxxx is the employee of GE Capital Investment
Advisors, Inc. ("Advisor") in charge of the primary responsibility for the
Property, and as such is the employee of Advisor most likely to have knowledge
about the Property. The Seller's representations and warranties made herein in
this Section 4.7 shall survive the Closing and shall not merge into the Deed on
recordation thereof, provided, however, the representations and warranties
contained in Section 4.7 shall survive the Closing Date for only one (1) year.
Any claims for breach of any representations and warranties which survive only
for one (1) year shall be made in writing to Seller within such one year period
or it shall be deemed a waiver of the right to assert any such claim.
4.8 INTENTIONALLY DELETED
4.9 Defective Condition. In the event that subsequent to the execution
of this Agreement Seller obtains knowledge of, or Purchaser's inspection of the
Property reveals, either (i) the presence of any Hazardous Materials (as defined
below in this Section 4.9) or the violation or potential violation of any
Environmental Requirements (as defined below in this Section 4.9) or (ii) any
structural or other defect in the Improvements, whether or not in violation of
any applicable law, ordinance, code, regulation or decree of any governmental
authority having jurisdiction over the Property (collectively, a "Defective
Condition"), which Seller, in its sole judgment, determines could constitute a
potential liability to Seller after the Closing or should be remedied prior to
the sale of the Property, Seller shall have the right upon written notice to
Purchaser on or before the scheduled Closing Date either (i) to extend the
Closing Date for the period of time, not to exceed sixty (60) consecutive days
necessary to complete such remediation at Seller's sole cost and expense, or
(ii) to terminate this Agreement upon written notice to Purchaser and neither
party shall have any further right or obligation hereunder. At the end of such
sixty (60) day period if Seller has not cured the Defective Condition to
Purchaser's reasonable sole satisfaction, the Purchaser may (as its sole and
exclusive remedy) terminate this Agreement by delivering written notice of such
termination to the Seller. The terms of this Section 4.9 are solely for the
benefit of Seller and Purchaser shall have no additional right or remedy
hereunder as a result of the exercise by Seller of its rights under this Section
4.9.
As used herein, the term "Hazardous Materials" shall mean any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in 101(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amend (42 U.S.C. 9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C. 6901
et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any substance
regulated by the Toxic Substances Control Act (15 U.S.C. 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; (vi) 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 or the common law, or any other
applicable laws relating to the Property. Hazardous Materials shall include,
without limitation, any substance, the presence of which on the 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.
As used herein, the term "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 land or soil).
Purchaser acknowledges that Seller has delivered to its representatives a copy
of a report entitled "Limited Subsurface Investigation at the Kingsdale Center,
Upper Arlington, Ohio prepared by Xxxxxxx Environmental Consultants, Xxxxxxx
Project No. 70-98003.02 dated August 19, 1997 prepared for Landels, Xxxxxx &
Diamond, San Francisco, California" by cover letter (the "August Cover Letter")
dated August 22, 1997. The Cover Letter described the terms and conditions
regarding the delivery of such report and the Cover Letter is incorporated
herein by reference. In addition, Purchaser hereby indemnifies and holds Seller,
its agents, affiliates, GE Capital Investment Advisors, Inc. and their officers,
directors and employees harmless and shall defend Seller, its agents,
affiliates, GE Capital Investment Advisors, Inc. and their officers, directors
and employees with counsel selected by Seller, from and against all claims,
causes of action, damages, liabilities, expenses, costs and charges arising out
of or in connection with any release or threatened release of any Hazardous
Materials which release or threatened release occurred prior to or after the
date hereof. The foregoing indemnification, hold harmless and defense
obligations shall survive the Closing and the recording of the Deed.
4.10 INTENTIONALLY DELETED
SECTION 5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES SELLER HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE WARRANTY OF TITLE CONTAINED IN THE DEED, AS DEFINED
IN SECTION 6.5 BELOW AND IN SECTION 4.7 HEREOF), 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 THE PROPERTY
INCLUDING, WITHOUT LIMITATION, THEWATER, SOIL AND GEOLOGY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES
AND USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON;
(D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS 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 THE PROPERTY;
(F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS,IF ANY,
INCORPORATED INTO THE PROPERTY;
(G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY;
(H) COMPLIANCE WITH ANY ENVIRONMENTAL REQUIREMENTS;
(I) THE PRESENCE OR SUSPECTED PRESENCE IN, ON,UNDER OR ABOUT
THE PROPERTY OR THE SOIL OR GROUND WATER THEREOF OF ANY
HAZARDOUS MATERIALS;
(J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO
MAKE, AND BY EXECUTION HEREOF, PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE,
ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE
REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH
REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE, IF ANY,
MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON
SELLER UNLESS EXPRESSLY SET FORTH HEREIN.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN A FULL
AND ADEQUATE OPPORTUNITY TO INSPECT, TEST AND INVESTIGATE THE PROPERTY, AND
EXCEPT FOR ANY REPRESENTATION OR WARRANTY CONTAINED IN SECTION 4.7 HEREOF,
PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION, TESTING AND INVESTIGATION
OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER,
AND PURCHASER AGREES TO ACCEPT THE PROPERTY IN ITS THEN EXISTING "AS-IS"
CONDITION AND BASIS WITH ALL FAULTS AT THE CLOSING AND WAIVES ALL OBJECTIONS OR
CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR ITS PHYSICAL,
ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITION (INCLUDING, WITHOUT LIMITATION, THE
ACTUAL OR SUSPECTED EXISTENCE OF ANY HAZARDOUS MATERIALS IN, ON UNDER OR ABOUT
THE PROPERTY OR THE SOIL OR GROUND WATER THEREOF).
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED
OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY BY OR ON BEHALF OF SELLER 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, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION AND THAT
SELLER IS NOT, AND SHALL NOT BE, LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION OR CONDITION THEREOF, FURNISHED BY ANY ADVISOR, ATTORNEY, REAL
ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD
BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
5.2 Waiver and Release. Except with respect to any claims arising out
of any breach of express and specific covenants, representations or warranties
of Seller set forth in this Agreement, Purchaser, for itself and its agents,
affiliates, successors and assigns, effective as of the Closing Date hereby
releases and forever discharges Seller, its agents, partners, affiliates,
successors and assigns from any and all rights, claims and demands at law or in
equity, whether known or unknown as of the Closing Date, which Purchaser has or
may thereafter have in the future, arising out of the physical, environmental,
economic or legal condition of the Property. Purchaser hereby specifically
acknowledges that Purchaser has carefully reviewed this subsection and discussed
its import with legal counsel and that the provisions of this subsection are a
material part of this Agreement.
SECTION 6.
CLOSING
6.1 Closing. The closing of the purchase and sale transaction
contemplated herein (the "Closing") shall be held at or conducted through the
offices of Lawyers Title Insurance Corporation (the "Title Company") c/o
TransOhio Title Agency, Inc., Attn: Xxxxxxx Xxxxxxx, Escrow No. 23025, at a date
designated by Seller and Purchaser on or before September 30, 1997 (the "Closing
Date"), unless the parties mutually agree in writing upon another place, time or
date. On the Closing Date, all documents to be recorded shall be appropriately
recorded and all other closing documents and funds shall be deemed to be
simultaneously delivered.
6.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the "Permitted Encumbrances" shown on
Schedule B, Section 2 (attached) of the Title Commitment ("Permitted
Encumbrances").
6.3 Proration. All rents, other amounts payable by the tenants under
the Leases, income, utilities and all other operating expenses with respect to
the Property for the month in which the Closing occurs, and real estate and
personal property taxes and other assessments with respect to the Property for
the period in which the Closing occurs, shall be prorated to the date Seller
receives the Purchase Price in immediately available funds with Purchaser
receiving the benefits and burdens of ownership on the Closing Date. (The
Closing shall not be deemed to have occurred unless good funds have been
received by Seller in San Francisco, California by 3:00 p.m.
San Francisco time.)
(a) If the Closing shall occur before rents and all other amounts
payable by the tenants under the Leases and all other income from the Property
have actually been paid for the month in which the Closing occurs, the
apportionment of such rents and other amounts and other income shall be upon the
basis of such rents, other amounts and other income actually received by Seller.
Subsequent to the Closing, if any such rents, other amounts and other income are
actually received by Purchaser, all such amounts shall first be applied to
post-closing rents due to Purchaser which are past due and the balance shall be
immediately paid by Purchaser to Seller. Purchaser shall make a good faith
effort and attempt to collect any such rents and other amounts and other income
not apportioned at the Closing for the benefit of Seller, however, Purchaser
shall not be required to expend any funds or institute any litigation in its
collection efforts. At Closing, prepaid rents and refundable security deposits
in the possession or control of Seller (together with any interest accrued
thereon only if interest is specifically required to be paid thereon under
applicable law or under the terms of a specific Lease) at Seller's sole option
shall either be (i) transferred to Purchaser at Closing and not subject to
adjustment, or (ii) adjusted by way of a credit in favor of Purchaser.
(b) In the event the Property tax assessment increases as a result of
the transfer and sale of the Property to the Purchaser, Purchaser and Seller
agree to reprorate based upon the actual tax bills for any such tax increase
during the tax year in which the Closing occurs.
(c) If the Closing shall occur before the actual amount of utilities
and all other operating expenses with respect to the Property for the month in
which the Closing occurs are determined, the apportionment of such utilities and
other operating expenses shall be upon the basis of a reasonable estimate by
Seller of such utilities and other operating expenses for such month. Subsequent
to the Closing, when the actual amount of such utilities and other operating
expenses with respect to the Property for the month in which the Closing occurs
are determined, the parties agree to adjust the proration of such utilities and
other operating expenses and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(d) Any tenant-improvement and/or leasing-commission costs (including,
without limitation, referral or locator fees) and all other out-of-pocket fees
and costs (including, without limitation, legal fees and costs) (collectively,
"New Tenant Costs") paid or incurred by Seller and approved by Purchaser after
the Effective Date with respect to new Leases or modifications to existing
Leases executed on or after the Effective Date in accordance with Section 9
below shall be credited in favor of Seller at Closing. Seller shall supply
invoices and statements for all New Tenant Costs to Purchaser on or prior to the
Closing Date. Purchaser shall be solely responsible for the payment of all New
Tenant Costs in connection with any options, renewals, or extensions exercisable
under the Leases after the Closing Date and Purchaser shall indemnify, protect,
defend, save and hold harmless seller from and against any and all debts,
duties, obligations, liabilities, suits, claims, demands, causes of action,
damages, losses, fees and expenses (including, without limitation, attorneys'
fees and expenses and court costs) in any way relating to, or in connection with
or arising out of New Tenant Costs.
(e) If Leases contain obligations ("Lease Obligations") on the part of
the Tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii)
escalation payments for taxes, labor or operations, or (iv) other expenses
including, without limitation, common area maintenance or any other operating
cost pass-throughs or retroactive charges payable by Tenants which have accrued
as of the Closing Date but are not then due and payable, the amount of such
Lease Obligations shall be prorated as of the Closing Date upon the basis of an
estimate by Seller of such Lease Obligations through the Closing Date.
Subsequent to the Closing, when the actual amount of such Lease Obligations with
respect to the Property through the Closing Date is determined, the parties
agree to adjust the proration of such Lease Obligations and, if necessary, to
refund or repay such sums as shall be necessary to effect such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
survive the Closing.
6.4 Closing Costs. Seller shall pay, on the Closing Date, one-half
(1/2) of any escrow fees and other customary fees, costs and charges of the
closing and consummation of the purchase and sale transaction contemplated in
this Agreement as customarily charged to and payable by the seller in such
transactions in the location in which the Land is situate. Purchaser shall pay,
on the Closing Date, the costs of any endorsements to the Owner's Policy
requested by Purchaser, all recording costs, one-half (1/2) of any escrow fees
and other customary fees, costs and charges of the closing and consummation of
the purchase and sale transaction contemplated in this Agreement as customarily
charged to and payable by the purchaser in such transactions in the location in
which the Land is situate. The Purchaser and the Seller shall each pay 1/2 of
the costs to obtain the Survey and any updates thereto and for the title
insurance premium for the Owner's Policy (as defined in Section 6.5(a) below).
Notwithstanding the foregoing, each party shall pay its own attorneys' fees
incurred in connection with the transaction contemplated in this Agreement.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser the following:
(a) Title Policy. An Owner's Policy of Title Insurance (form ALTA
1970B) (the "Owner's Policy"), issued by Title Company naming Purchaser as
insured, in the amount of the Purchase Price, insuring that Purchaser owns good
and indefeasible fee simple title to the Property, subject only to the Permitted
Encumbrances. Purchaser, at Purchaser's sole expense, may elect to cause the
Title Company to provide extended coverage or issue certain endorsements.
Notwithstanding the foregoing, Seller shall have no obligation or liability to
Purchaser in the event that Title Company is unwilling or unable to issue the
Owner's Policy and the provision at Purchaser's request of extended coverage or
endorsements shall not be a condition to closing.
(b) Evidence of Authority. Such organizational and authorizing
documents of Seller as shall be reasonably required by the Title Company and
Purchaser, to evidence Seller's authority to consummate the transactions
contemplated by this Agreement.
(c) Deed. A duly executed and acknowledged Ohio Limited Warranty Deed
to the Land and Improvements in the form attached to this Agreement as Exhibit C
(the "Deed").
(d) Assignment. A duly executed and acknowledged counterpart Assignment
and Assumption of Personal Property, Service Contracts, Warranties and Leases in
the form attached to this Agreement as Exhibit D (the "Assignment").
(e) FIRPTA Affidavit. A duly executed affidavit of Seller in form
attached hereto as Exhibit E certifying that Seller is not a "foreign person,"
as defined in Section 1445 of the Code, and in any applicable state laws for the
state in which the Property is located.
(f) Tenant Notices. Duly executed notices to all tenants or lessees
under the Leases in form attached hereto as Exhibit F together with an updated
list of tenants dated a date close to the Closing Date.
(g) Original Documents. The original of all Leases and Contracts in
Seller's possession.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds.
(b) Evidence of Authority. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by Seller and/or the
Title Company authorizing Purchaser's acquisition of the Property pursuant to
this Agreement and the execution of this Agreement and any documents to be
executed by Purchaser at the Closing.
(c) Assignment. A duly executed and acknowledged counterpart
Assignment.
(d) Taxpayer Certification. A duly executed Taxpayer I.D. Certification
in the form attached to this Agreement as Exhibit G.
(e) ERISA Certificate. A duly executed ERISA Certificate in the form
attached to this Agreement as Exhibit H.
6.7 Insurance. Seller's existing liability and property insurance
pertaining to the Property shall be canceled as of the Closing Date, and Seller
shall receive any premium refund due thereon.
6.8 Filing of Reports. Title Company shall be solely responsible for
the timely filing of any reports or returns required pursuant to the provisions
of Section 6045(e) of the Code (and any similar reports or returns required
under any state or local laws) in connection with the closing of the transaction
contemplated in this Agreement.
SECTION 7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is initiated to take
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as otherwise provided in this Agreement, Seller
assumes all risks and liability for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any part thereof, suffers any
damage in excess of $250,000.00 prior to the Closing from fire or other casualty
which Seller, at its sole option, does not elect to repair, Purchaser may either
at or prior to Closing (a) terminate this Agreement, or (b) consummate the
Closing, in which latter event all of Seller's right, title and interest in and
to the proceeds of any insurance covering such damage (less an amount equal to
any expenses and costs incurred by Seller to collect or adjust such insurance or
to repair or restore the Property and any portion of such proceeds paid or to be
paid on account of the loss of rents or other income from the Property for the
period prior to and including the Closing Date, all of which shall be payable to
Seller), to the extent the amount of such insurance does not exceed the Purchase
Price, shall be assigned to Purchaser at the Closing. If the Property, or any
part thereof, suffers any damage less than $250,000.00 prior to the Closing,
Purchaser agrees that it will consummate the Closing and accept the assignment
of the proceeds of any insurance covering such damage plus an amount equal to
Seller's deductible under its insurance policy and there shall be no reduction
in the Purchase Price.
SECTION 8.
DEFAULT
8.1 Breach by Seller.
(a) Pre-Closing. In the event that Seller shall breach or default in
the performance of any of its obligations to be performed prior to Closing
and/or fail to consummate the transaction contemplated by this Agreement for any
reason (except Purchaser's breach or default under this Agreement or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provision hereof), Purchaser, as Purchaser's sole and exclusive
remedy, may either (i) terminate this Agreement and recover money damages for
Buyer's actual damages from Seller up to $250,000 as a result of any breach or
default by Seller under the terms of Section 6 or a material misrepresentation
under Section 4.7 of this Agreement, or (ii) pursue the remedy of specific
performance of Seller's obligations under this Agreement provided that (a) any
such suit for specific performance must be filed within sixty (60) days after
Purchaser first becomes aware of the breach or default by Seller; (b) Purchaser
is not in breach or default in the performance of its obligations under this
Agreement and (c) Purchaser has tendered the Purchase Price, less Purchaser's
good faith reasonable estimate of proration credits that would be credited
against the Purchase Price, to the Title Company in immediately available funds
and the Title Company has acknowledged receipt of same, in writing, to Seller.
In the event that Purchaser seeks specific performance under this Agreement,
Seller shall not be obligated to expend nor shall any adjustment be made to the
Purchase Price to cure any defaults under this Agreement and Purchaser agrees to
accept the Property in the "AS IS" "WHERE IS" condition as provided for in this
Agreement.
(b) Damages. Notwithstanding anything to the contrary contained in this
Agreement, in no event whatsoever shall Purchaser have the right to seek or
recover money damages from Seller as a result of any breach or default by Seller
under any of the terms of this Agreement, except for actual money damages up to
$250,000 as a result of any breach or default by Seller under the terms of
Section 6 or a material misrepresentation under Section 4.7 of this Agreement.
Purchaser specifically and without limitation hereby waives and relinquishes any
right to seek or recover from Seller, and specifically acknowledges and agrees
that in no event shall Seller be liable to Purchaser for, any damages whether as
punitive, speculative or consequential damages, as a result of any breach or
default by Seller under the terms of Section 6 of this Agreement or a material
misrepresentation under Section 4.7 of this Agreement.
Purchaser hereby agrees that prior to its exercise of any right or remedy as a
result of any breach or default by Seller, Purchaser will first deliver written
notice of said breach or default to Seller and give Seller ten (10) days
thereafter in which to cure said breach or default, if Seller so elects.
8.2 Breach by Purchaser.
(a) Liquidated Damages. In the event that Purchaser is in breach of its
obligations under Section 6 and thus fails to consummate the transaction
contemplated by this Agreement or has made a material misrepresentation under
Section 4.6 of this Agreement and thus fails to consummate the transaction
contemplated by this Agreement, Seller may terminate this Agreement and
thereupon Seller shall be entitled to retain the Xxxxxxx Money as liquidated
damages (and not as a penalty or forfeiture) and as Seller's sole remedy and
relief hereunder.
SELLER AND PURCHASER ACKNOWLEDGE THAT THE ACTUAL DAMAGES TO SELLER
WHICH WOULD RESULT FROM SUCH FAILURE WOULD BE EXTREMELY DIFFICULT TO
CALCULATE OR ESTABLISH ON THE DATE HEREOF. IN ADDITION, PURCHASER
DESIRES TO HAVE A LIMITATION PUT UPON ITS POTENTIAL LIABILITY TO SELLER
IN THE EVENT OF SUCH FAILURE BY PURCHASER. BY PLACING THEIR INITIALS IN
SPACES HEREINAFTER PROVIDED, SELLER AND PURCHASER SPECIFICALLY
ACKNOWLEDGE AND AGREE, AFTER NEGOTIATION BETWEEN SELLER AND PURCHASER,
THAT TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) CONSTITUTES
REASONABLE COMPENSATION TO SELLER FOR SUCH FAILURE BY PURCHASER AND
SHALL BE DISBURSED TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES IN
THE EVENT OF SUCH FAILURE BY PURCHASER.
PURCHASER (_____) SELLER (_____)
(b) In the event that Purchaser commits a material misrepresentation
under Section 4.6, but consummates this transaction, then Seller shall be
entitled to recover money damages from Purchaser up to $250,000.
None of the provisions of this Section 8.2 shall limit, impair or affect any of
Purchaser's indemnities of Seller or other Surviving Obligations as provided in
elsewhere in this Agreement.
SECTION 9.
FUTURE OPERATIONS
9.1 Maintenance and Contracts. From the Effective Date of this
Agreement until the Closing or earlier termination of this Agreement:
(a) Seller will keep and maintain the Property in substantially its
condition as of the date of this Agreement ordinary wear and tear and casualties
excepted.
(b) Seller will perform all Seller's material obligations under the
Contracts. Seller will not, without the prior written consent of Purchaser
(which consent will not be unreasonably withheld or delayed), modify, enter
into, or renew any Contract which cannot be canceled upon thirty (30) days prior
written notice.
(c) Seller will keep in full force and effect and/or renew all licenses
and permits with respect to the Property.
(d) Seller will pay in full, on or prior to the Closing Date, all bills
and invoices for labor, goods, materials, and services of any kind relating to
the operation of the Property consistent with its customary and ordinary
operation of the Property on the Effective Date.
9.2 Leasing. From the Effective Date until the Closing or earlier
termination of this Agreement, Seller will not, without the prior written
consent of Purchaser (which consent will not be unreasonably withheld or
delayed), modify, enter into, or renew any Leases except in the customary and
ordinary operation of the Property by Seller consistent with Seller's current
practices in effect as of the Effective Date.
SECTION 10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, postage prepaid, return
receipt requested, addressed to the intended recipient at the address specified
below; or (c) on the first (1st) business day after being deposited into the
custody of a nationally recognized overnight delivery service such as Federal
Express Corporation, Xxxxx or Purolator, addressed to such party at the address
specified below. For purposes of this Section 10.1, the addresses of the parties
for all notices are as follows (unless changed by similar notice in writing
given by the particular person whose address is to be changed):
If to Seller: GE Capital Investment Advisors, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Senior Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: GE Capital Investment Advisors, Inc.
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
If to Purchaser: c/o Regency Realty Corporation
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Rogers, Towers, Xxxxxx, Xxxxx & Gay
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Title
Company: Lawyers Title Insurance Corp.
c/o Trans Ohio Title Agency, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxx Xx. 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
10.2 Real Estate Commissions. Seller shall pay to CB Commercial Real
Estate Group, Inc. (hereinafter called "Agent" whether one or more) upon the
Closing of the transaction contemplated hereby, and not otherwise, a cash
commission in the amount agreed on in a separate listing agreement between
Seller and Agent. Said commission shall in no event be payable unless and until
the transaction contemplated hereby is closed in accordance with the terms of
this Agreement; if such transaction is not closed for any reason, including,
without limitation, failure of title or default by Seller or Purchaser or
termination of this Agreement pursuant to the terms hereof, then such commission
will be deemed not to have been earned and shall not be due or payable. Except
as set forth above with respect to Agent, neither Seller nor Purchaser has
authorized any broker or finder to act on Purchaser's or Seller's behalf in
connection with the sale and purchase hereunder and neither Seller nor Purchaser
has dealt with any broker or finder purporting to act on behalf of any other
party. Purchaser agrees to indemnify, defend, protect and hold harmless Seller
from and against any and all claims, losses, damages, liabilities, costs or
expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify,
defend, protect and hold harmless Purchaser from and against any and all claims,
losses, damages, liabilities, costs or expenses of any kind or character arising
out of or resulting from any agreement, arrangement or understanding alleged to
have been made by Seller or on Seller's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby.
Notwithstanding anything to the contrary contained herein, this Section 10.2
shall survive the Closing or any earlier termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State in which the Property is located, then, in such
event, the time of such period shall be extended to the next day which is not a
Saturday, Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State in which the Property is located and the laws of the United States
pertaining to transactions in such State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser may assign this Agreement at Closing to Regency
Centers, Inc., a Florida corporation, provided that Regency Centers, Inc. shall
provide the ERISA Certificate to Seller at closing and shall assume Purchaser's
obligations under this Agreement and otherwise shall not assign Purchaser's
rights under this Agreement without the prior written consent of Seller, which
consent may be withheld in its sole and absolute discretion. Except for the
assignment permitted herein, no assignment of Purchaser's rights hereunder shall
relieve Purchaser of its liabilities under this Agreement. Purchaser shall be
relieved of all obligations and liabilities under this Agreement if, only and
when the Purchase Price is paid to Seller and the Deed is recorded. This
Agreement is solely for the benefit of Seller and Purchaser; there are no third
party beneficiaries hereof. Any assignment of this Agreement in violation of the
foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
10.12 INTENTIONALLY DELETED
10.13 INTENTIONALLY DELETED
10.14 Exhibits. The exhibits attached to this Agreement and referred to
herein are hereby incorporated into this Agreement by this reference and made a
part hereof for all purposes.
10.15 Construction. Seller and Purchaser acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
10.16 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in the county in which the Property is located or any other
county. Should Purchaser ever record or attempt to record this Agreement, or a
memorandum or affidavit thereof, or any other similar document, then,
notwithstanding anything herein to the contrary, said recordation or attempt at
recordation shall constitute a default by Purchaser hereunder, and, in addition
to the other remedies provided for herein, Seller shall have the express right
to terminate this Agreement by filing a notice of said termination in the county
in which the Land is located.
10.17 Merger Provision. Except as otherwise expressly provided herein,
any and all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.18 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING,
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER
WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR SELLER AND PURCHASER TO ENTER INTO AND
ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND
SHALL SURVIVE THE CLOSING AND TERMINATION OF THIS AGREEMENT.
10.19 No Personal Liability of Officers, Directors, Etc. of Seller.
Purchaser acknowledges that this Agreement is entered into by a corporation as
Seller and Purchaser agrees that no individual officer or director or other
representative of Seller or Advisor shall have any personal liability under this
Agreement or any document executed in connection with the transactions
contemplated by this Agreement. Further, Purchaser acknowledges that Advisor is
not a party to this Agreement and that neither such Advisor nor the individual
officers, directors or representatives of Advisor shall have any personal
liability under this Agreement or any document executed in connection with the
transaction contemplated by this Agreement. For the purposes of this Agreement,
Advisor in its capacity as Seller's authorized investment advisor, is acting as
Seller's representative; the burdens and liabilities of this Agreement shall
extend only to Seller and Advisor shall have no liability hereunder. In
addition, all approvals to be given by Seller hereunder may be given or withheld
by Advisor as Seller's representative, and all requests or requirements that
Seller is entitled to make hereunder may be by Advisor on behalf of Seller.
10.20 Public Announcement. Neither party shall make a public
announcement of this transaction unless both parties consent, in their absolute
discretion, to such an announcement. If the parties agree to make a public
announcement, they shall cooperate and mutually agree upon the language of that
public announcement. No public announcement shall be released or published
without the written approval of both Seller and Purchaser.
10.21 INTENTIONALLY DELETED
[SIGNATURE ON NEXT PAGE]
[SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT]
PURCHASER:
By: ______________________
Its: _______________________
Date of Execution
by Purchaser:
SELLER:
TBC Kingsdale, Inc.,
a Massachusetts corporation
By: _______________________
Its: ________________________
By: _______________________
Its: ________________________
Date of Execution
by Seller:
_________________, 199_
EXHIBIT A
LEGAL DESCRIPTION OF LAND
EXHIBIT B
INTENTIONALLY DELETED
EXHIBIT C
DEED
EXHIBIT D
FORM OF ASSIGNMENT
Recording Requested By and
When Recorded Mail To:
===========================
---------------------------
Attn: ______________________
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ASSIGNMENT AND ASSUMPTION OF PERSONAL PROPERTY,
SERVICE CONTRACTS, WARRANTIES AND LEASES
_________________________________, a _____________________ ("Assignor"), for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, has Granted, Sold, Assigned, Transferred, Conveyed, and Delivered
and does by these presents Grant, Sell, Assign, Transfer, Convey and Deliver
unto ______________________, a ___________________________ ("Grantee"), all of
Assignor's rights, titles, and interests in and to the following described
properties located in, affixed to, and/or arising or used in connection with the
improved property with parking and other amenities (the "Project") situated on
the land in the County of _________________, State of __________________, more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes (the "Land," which together with the Project is sometimes
hereinafter called the "Property"):
(a) All fixtures, equipment, machinery, building materials, furniture,
furnishings, and other personal property owned by Assignor, including the name
"_________________" (the "Personal Property"), and located on, attached to, or
used in connection with the operation and maintenance of the Property;
(b) Any leases for space in the Project (the "Leases"), together with
refundable security and other deposits owned or held by Assignor pursuant to the
Leases, which Leases and security deposits are described on Exhibit B attached
hereto;
(c) The assignable service, maintenance, or management contracts
relating to the ownership and operation of the Property (the "Service
Contracts") attached hereto as Exhibit C; and
(d) Any assignable warranties and guaranties relating to the Property or
any portion thereof (collectively, the "Warranties").
Assignor and Assignee hereby covenant and agree as follows:
(i) Assignee accepts the aforesaid assignment and Assignee
assumes and agrees to be bound by and timely perform, observe,
discharge, and otherwise comply with each and every one of the
agreements, duties, obligations, covenants and undertakings upon the
lessor's part to be kept and performed under the Leases and any
obligations of Assignor under the Service Contracts.
(ii) Neither this Agreement nor any term, provision, or
condition hereof may be changed, amended or modified, and no obligation,
duty or liability or any party hereby may be released, discharged or
waived, except in a writing signed by all parties hereto.
GRANTEE SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT TO THE LIMITED EXTENT,
IF ANY, SPECIFICALLY AND EXPRESSLY SET FORTH IN SECTION 5.1 OF THAT CERTAIN
PURCHASE AND SALE AGREEMENT DATED AS OF APRIL 23, 1997 BETWEEN ASSIGNOR, AS
SELLER, AND ASSIGNEE, AS PURCHASER, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO THE LAND, PROPERTY, PROJECT, PERSONAL PROPERTY,
LEASES, SERVICE CONTRACTS OR WARRANTIES.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
of Personal Property, Service Contracts, Warranties and Leases effective as of
the _____ day of __________________, 199_.
Assignor:
-------------------------,
a ________________________
By: _____________________
Its: ______________________
Assignee
-------------------------,
a ________________________
By: _____________________
Its: ______________________
[AFFIX ACKNOWLEDGMENTS]
- 1 -
EXHIBIT E
FORM OF FIRPTA AFFIDAVIT
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform _________________________, a __________________________
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (collectively, the "Code"), will not be
required upon transfer of certain real property to Transferee by
_____________________, a ________________ ("Transferor"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. taxpayer identification number is as follows:
___________.
3. Transferor's office address is as follows:
c/o GE Capital Investment Advisors, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
General Counsel
Transferor 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.
Transferor understands that Transferee is relying on this Certification
in determining whether withholding is required upon said transfer.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
Date: ____________, 199_
TRANSFEROR:
-------------------------,
a _______________________
By: ________________
Its: _________________
- 1 -
EXHIBIT F
FORM OF TENANT NOTICE
_______________, 19___
This is to notify you that _______________________________________________,
a _________________________________ ("Seller"), has sold its fee interest in the
property described above and in connection therewith has assigned its interest
as landlord under your lease to __________________________, a
_________________("Buyer"). You are further notified that any security deposits
or any prepaid rents under your lease have been transferred to Buyer.
The project will be managed by:
===============================
-------------------------------
Telephone No. __________________
Commencing as of _____________________, all rental payments under your
lease shall be paid to Buyer. Please make your rent checks payable to Buyer at
the above address.
Any written notices you desire or are required to make to the landlord under
your lease should hereafter be sent to Buyer at the above address.
Very truly yours,
SELLER:
-------------------------------,
a ______________________________
By: ____________________________
Its: ____________________________
- 1 -
EXHIBIT G
FORM OF TAXPAYER I.D. CERTIFICATE
TAXPAYER IDENTIFICATION CERTIFICATE
In connection with certain Internal Revenue Service reporting
requirements imposed upon Seller, Purchaser hereby certifies that listed below
is Purchaser's address and taxpayer identification number, true and correct as
of the Closing Date.
Address: __________________
==================
Taxpayer I.D. Number: ___________________
Purchaser hereby consents to Seller's release of the above information
in connection with any reporting requirements imposed upon Seller by any
governmental authority.
-------------------------,
a ________________________
By: _____________________
Its: ______________________
- 1 -
EXHIBIT H
FORM OF ERISA CERTIFICATE
ERISA CERTIFICATE
THIS ERISA CERTIFICATE is made as of , 199_, by _______________, a
______________, whose address is __________________________ ("Purchaser") in
favor of _________________________, whose address is c/o GE Capital Investment
Advisors, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attn:
Xxxxx X.
Xxxxx, General Counsel ("Seller").
WITNESSETH
WHEREAS, by Purchase and Sale Agreement, dated as of , 199_ (the "Sale
Agreement"), Seller agreed to sell to Purchaser, and Purchaser agreed to
purchase from Seller certain real property, together with the building and other
improvements thereon, known as and located at _____________________,
______________, _____________ (the "Property"), as more fully described in the
Sale Agreement; and
WHEREAS, the Sale Agreement requires that Purchaser deliver this
Certificate as a condition of the Closing (as defined in the Sale Agreement).
NOW, THEREFORE, in consideration of Seller's conveyance of the Property
and the mutual covenants contained in the Sale Agreement, Purchaser hereby
certifies, represents, warrants and covenants to Seller that as of the date
hereof:
1. Purchaser is not an "employee benefit plan" as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title I of ERISA and (b) the assets of Purchaser
do not constitute "plan assets" of one or more such plans within the meaning of
29 C.F.R.
Section 2510.3-101.
2. With respect to Seller, and with respect to any shareholder,
partner, related entity or affiliate of Seller, Purchaser is neither (i) a party
in interest as defined in Section 3(14) of ERISA, nor (ii) a disqualified person
as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as
amended.
3. The certifications, representations, and warranties contained herein
shall survive the Closing.
---------------------------,
a __________________________
By: _______________________
Its: ________________________
- 1 -
EXHIBIT I
RENT ROLL
- 1 -
EXHIBIT J
TENANT ESTOPPEL CERTIFICATES
KINGSDALE CENTER
Received
Big Bear 35,175 s.f.
Express 5,503 s.f.
Famous Footwear 6,013 s.f.
The Limited 7,268 s.f.
S&K Menswear 5,349 x.x.
Xxxxx Mart 35,602 s.f.
Received s.f.
Added Dimensions 3,727
Alfred's Xxxxxx Shop 800
Argo & Xxxxx Jewelers 3,000
Baggerie, The 2,946
Big Sky Bread Company 2,488
Boston Market 3,240
Cheryl's Cookies 514
Designs On You 1,700
Framing Center, The 2,017
Xxxxxxx Xxxxxx 2,621
Xxxxx Xxxxx Weight Loss 3,066
Key Bank 3,500
Lair's Hallmark 4,641
Lenscrafters 1,000
MCL Cafeteria 9,500
Oxley's Xxxxxxxx 3,000
Parcel Plus 1,212
Xxxx Xxxxxx, inc. 4,923
Ruby's 774
Xxxxx Beauty Supply 1,800
Xxxxxxx Xxxxxxxx 2,550
Stride rite 2,135
Swan Cleaners 2,122
-----
Total 63,276
75%
