EXHIBIT 10.24
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS ("Agreement")
is made as of this 24th day of March, 2000 (the "Effective Date"), by and
between THIRD HORIZON GROUP LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
("Purchaser").
R E C I T A L S:
A. Seller is the fee owner of (i) the Holland Land and the Holland
Building (as such terms are hereinafter defined) comprising the outlet center
commonly referred to as Holland Outlet Center, located in Holland, Michigan,
(ii) the Monroe Land and the Monroe Building (as such terms are hereinafter
defined) comprising the outlet center commonly referred to as Horizon Outlet
Center, located in Monroe, Michigan, (iii) the Dry Ridge Land and the Dry Ridge
Building (as such terms are hereinafter defined) comprising the outlet center
commonly referred to as Dry Ridge Outlet Center, located in Dry Ridge, Kentucky,
(iv) the Norton Shores Land and the Norton Shores Building (as such terms are
hereinafter defined) comprising the power center commonly known as Lakeshore
Market Place, located in Norton Shores, Michigan, (v) the Medford Land and the
Medford Building (as such terms are hereinafter defined) comprising the outlet
center commonly known as the Medford Outlet Center, Medford, Minnesota, (vi) the
Warrenton Land and the Warrenton Building (as such terms are hereinafter
defined) comprising the outlet center commonly referred to as the Warrenton
Outlet Center, Warrenton, Missouri, and (vii) the Laughlin Fee Land (as such
term is hereinafter defined) comprising a portion of the outlet center commonly
referred to as the Horizon Outlet Center, Laughlin, Nevada.
B. Seller is the owner of the Leasehold Estate (as such term is
hereinafter defined) in the Laughlin Land and the Laughlin Building (as such
terms are hereinafter defined) comprising a portion of the outlet center
commonly referred to as the Horizon Outlet Center, Laughlin, Nevada.
C. Seller desires to sell, and Purchaser desires to purchase, the Real
Property, together with all of Seller's right, title and interest in and to the
Personal Property, the Contracts, the Leases and the Licenses (all as defined
below and collectively referred to herein as the "Property"), upon and subject
to the terms and conditions hereinafter set forth.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, agreements, covenants and conditions
herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used herein, the following terms shall have the
respective meanings indicated below:
(a) AGREEMENT. This Agreement of Purchase and Sale and Escrow
Instructions, including the Exhibits attached hereto which are
incorporated herein and made a part hereof.
(b) ASSIGNMENT ASSUMPTION OF LEASEHOLD ESTATE. That certain
recordable Assignment and Assumption of Leasehold Estate to be delivered
by Seller and Purchaser at Closing, whereby Seller shall convey to
Purchaser or Purchaser's nominee, all of Seller's right, title and
interest in, to and under the Ground
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Lease, and Purchaser or Purchaser's nominee shall accept such assignment
and assume and agree to perform all obligations of the "tenant" thereunder
accruing from and after the Closing Date.
(c) BUILDING. Collectively, the Dry Ridge Building, the Holland
Building, the Medford Building, the Monroe Building, the Norton Shores
Building and the Warrenton Building.
(d) CLOSING. The closing of the purchase and sale transaction
contemplated herein.
(e) CLOSING DATE. Subject to extension in accordance with the
provisions of Section 14.1 hereof, the thirtieth (30th) day following the
Due Diligence Approval Date, or such other date as is mutually agreed upon
by the parties hereto.
(f) CONFIDENTIAL MATERIALS. As defined in Section 17.6 hereof.
(g) CONTRACTS. All written (a) service, maintenance, operating,
repair, supply, purchase, construction or other contracts and commitments
(excluding the Leases, the Ground Lease and the recorded documents
evidencing the Permitted Title Exceptions) in any way related to all or
any portion of the Real Property, or pursuant to which goods, services and
supplies are furnished, or persons are employed on a continuing basis, for
the operation, maintenance, repair or construction of all or any portion
of the Real Property, to the extent any of the foregoing will survive the
Closing Date hereunder; and (b) equipment leases relating to equipment
leased by or on behalf of Seller, located in or upon all or any portion of
the Real Property, to the extent any of the foregoing will survive the
Closing Date, but excluding any contracts or leases that cover properties
in addition to the Real Property.
(h) DEED. Collectively, (i) that certain recordable Special Warranty
Deed to be delivered by Seller at Closing, conveying to Purchaser, or
Purchaser's nominee, fee simple title to the Dry Ridge Land and Dry Ridge
Building, subject only to the Permitted Title Exceptions relating thereto,
(ii) that certain recordable Special Warranty Deed to be delivered by
Seller at Closing, conveying to Purchaser, or Purchaser's nominee, fee
simple title to the Holland Land and Holland Building, subject only to the
Permitted Title Exceptions relating thereto, (iii) that certain recordable
Special Warranty Deed to be delivered by Seller at Closing, conveying to
Purchaser, or Purchaser's nominee, fee simple title to the Medford Land
and Medford Building, subject only to the Permitted Title Exceptions
relating thereto, (iv) that certain recordable Special Warranty Deed to be
delivered by Seller at Closing, conveying to Purchaser, or Purchaser's
nominee, fee simple title to the Monroe Land and Monroe Building, subject
only to the Permitted Title Exceptions relating thereto, (v) that certain
recordable Special Warranty Deed to be delivered by Seller at Closing,
conveying to Purchaser, or Purchaser's nominee, fee simple title to the
Norton Shores Land and the Norton Shores Building, subject only to the
Permitted Title Exceptions relating thereto, (vi) that certain recordable
Special Warranty Deed to be delivered by Seller at Closing, conveying to
Purchaser, or Purchaser's nominee, fee simple title to the Warrenton and
the Warrenton Building, subject only to the Permitted Title Exceptions
relating thereto, and (vii) that certain recordable Special Warranty Deed
to be delivered by Seller at Closing, conveying to Purchaser, or
Purchaser's nominee, fee simple title to the Laughlin Fee Land.
(i) DEPOSIT. The sum of One Million and 00/100 Dollars
($1,000,000.00), which shall be deposited by Purchaser with Escrowee, as
escrowee, within two (2) business days after the Effective Date, together
with the sum of Five Hundred Thousand and 00/100 Dollars ($500,000), which
may be deposited with Escrowee, as escrowee, pursuant to the provisions of
Section 14.1 below.
(j) DEVELOPMENT MATERIALS. As described in Section 10.1(b) hereof.
(k) DRY RIDGE BUILDING. The building or buildings located at the Dry
Ridge Land and comprising the outlet center commonly known as Dry Ridge
Outlet Center, Dry Ridge, Grant County, Kentucky.
(l) DRY RIDGE LAND. The land located in Dry Ridge, Grant County,
Kentucky, legally described on Exhibit A-1 attached hereto.
(m) DUE DILIGENCE APPROVAL DATE. The thirtieth (30th) day after the
Effective Date.
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(n) EFFECTIVE DATE. The date set forth in the preamble to this
Agreement.
(o) ESCROWEE. Guaranty National Title Insurance Company, located at
00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
(p) GROUND LEASE. The Amended and Restated Lease dated November 10,
1994 between Ground Lessor, as landlord, and J&S Enterprises, a Nevada
general partnership, as tenant, a Memorandum of which was recorded in Book
941223 as Instrument No. 01080, in the Official Records, Xxxxx County,
Nevada, as amended by (i) the Lease Amendment dated September 25, 1996
between Ground Lessor and Horizon/Xxxx Outlet Centers Limited Partnership,
a Memorandum of which was recorded in Book 970708 as Document No. 01145,
(ii) the Second Amendment to Ground Lease dated June 30, 1997 between
Ground Lessor and Horizon/Xxxx Outlet Centers Limited Partnership and
recorded in Book 970708 as Document No. 01146, and (iii) the Third
Amendment to Ground Lease dated June 11, 1998 and recorded in Book 980618
as Document No. 00201 (the interest of the tenant thereunder having been
assigned to Seller pursuant to (x) the Assignment recorded in Book 950707
as Document No. 00163, and (y) the Assignment and Assumption of Ground
Lease recorded in Book 970708 as Document No. 01144), creating a leasehold
estate in the Laughlin Land and the Laughlin Building.
(q) GROUND LESSOR. Xxxxx X. Slaybach, Sr. (and/or any current owner
of the Laughlin Land).
(r) HOLLAND BUILDING. The building or buildings located at the
Holland Land and comprising the outlet center commonly known as Holland
Outlet Center, Holland, Ottawa County, Michigan.
(s) HOLLAND LAND. The land located in Holland, Ottawa County,
Michigan, legally described on Exhibit A-2 attached hereto.
(t) INDEMNIFIED PARTIES. As defined in Section 10.1(a) hereof.
(u) INSPECTIONS. As defined in Section 10.1(a) hereof.
(v) INTANGIBLE PERSONAL PROPERTY. The trade names "Dry Ridge Outlet
Center", "Holland Outlet Center" "Lakeshore Market Place," "Medford Outlet
Center" and "Warrenton Outlet Center", and any and all logos, designs,
trade names, trademarks, service marks and applicable telephone number(s),
if transferable, and any other intellectual property used by Seller solely
in connection with the ownership and operation of the Real Estate, but
excluding the trade name "Horizon Outlet Center" or any variation thereof;
provided, however, that Purchaser shall, in the event of Closing, be
provided with a non-exclusive license to use the trade name "Horizon
Outlet Center" or any variation thereof during the period set forth in
this Agreement during which Purchaser is given an opportunity to resolve
signage and related name issues related to the Real Property.
(w) INVASIVE INSPECTIONS. As defined in Section 10.1(a) hereof.
(x) LAUGHLIN BUILDING. The building or buildings located at the
Laughlin Land and comprising the outlet center commonly known as Horizon
Outlet Center, Xxxxxxxx, Xxxxx County, Nevada.
(y) LAUGHLIN FEE LAND. The land in Xxxxxxxx, Xxxxx County Nevada,
legally described on Exhibit A-3 attached hereto.
(z) LAUGHLIN LAND. The land located in Xxxxxxxx, Xxxxx County,
Nevada, legally described on Exhibit A-4 attached hereto.
(aa) LAND. Collectively, the Dry Ridge Land, the Holland Land, the
Laughlin Fee Land, the Medford Land, the Monroe Land, the Norton Shores
Land and the Warrenton Land.
(bb) LEASEHOLD ESTATE. The leasehold estate in the Laughlin Land and
the Laughlin Building created by the Ground Lease.
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(cc) LEASES. All leases, tenancies and rental agreements with
respect to space within any portion of the Real Property, and all
modifications, extensions, amendments and guaranties thereof, excluding,
however, the Ground Lease.
(dd) LICENSES. All licenses, franchises, certifications,
authorizations, certificates of occupancy, approvals and permits issued or
approved by any governmental authority and relating to Seller's (and not
any tenant's) operation, ownership and maintenance of the Real Property or
Personal Property or any part thereof.
(ee) MEDFORD BUILDING. The building or buildings located at the
Medford Land and comprising the outlet center commonly known as Medford
Outlet Center, Medford, Xxxxxx County, Minnesota.
(ff) MEDFORD LAND. The land located in Medford, Xxxxxx County,
Minnesota, legally described on Exhibit A-5 attached hereto.
(gg) MONROE BUILDING. The building or buildings located at the
Monroe Land and comprising the outlet center commonly known as Horizon
Outlet Center, Monroe, Monroe County, Michigan.
(hh) MONROE LAND. The land located in Monroe, Monroe County,
Michigan, legally described on Exhibit A-6 attached hereto.
(ii) NORTON SHORES BUILDING. The building or buildings located at
the Norton Shores Land and comprising the power center commonly known as
Lakeshore Market Place, Norton Shores, Muskegon County, Michigan.
(jj) NORTON SHORES LAND. The land located in Norton Shores, Muskegon
County, Michigan, legally described on Exhibit A-7 attached hereto.
(kk) OUTLOT CONTRACT. A contract described in Section 10.1(f) below.
(ll) PERMITTED TITLE EXCEPTIONS. (i) the standard and general
printed exceptions and exclusions contained in any owner's or leasehold
title insurance policy issued by the Title Insurer and (ii) those
exceptions to title to the Real Property approved or deemed approved by
Purchaser as provided in Article 5 hereof, and (iii) the rights of any
purchaser under any Outlot Contract entered into by Seller pursuant to
Section 10.1(f) below.
(mm) PERSONAL PROPERTY. Collectively, the Intangible Personal
Property and the Tangible Personal Property.
(nn) PURCHASE PRICE. Ninety-Three Million Five Hundred Thousand and
00/100 Dollars ($93,500,000.00), plus or minus prorations as described in
this Agreement, which sum is the consideration payable by Purchaser to
Seller for the Property. Without limiting the generality of the foregoing,
the parties hereby acknowledge and agree that for purposes of transfer
taxes and title insurance, the Purchase Price shall be allocated to each
of the outlet center properties comprising the Real Property in the manner
described in Exhibit B attached hereto and made a part hereof.
(oo) PURCHASER'S CONFIDENTIALITY OBLIGATIONS. As described in
Section 17.6 hereof.
(pp) PURCHASER'S INDEMNITY. As described in Section 10.1(a) hereof.
(qq) PURCHASER'S REPRESENTATIVES. As defined in Section 10.1(a)
hereof.
(rr) RECALCULATION DATE. The ninetieth (90th) day following the
Closing Date.
(ss) REAL PROPERTY. The Land, the Building and the Leasehold Estate,
together with all right, title and interest of Seller in and to all
improvements thereon or therein (including all replacements or additions
thereof between the date hereof and the Closing Date); all right, title
and interest of Seller in and to
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all systems, facilities, fixtures, machinery, equipment and conduits to
provide fire protection, security, heat, exhaust, ventilation,
air-conditioning, electrical power, light, plumbing, refrigeration, gas,
sewer and water to the Land, Building or Leasehold Estate; all right,
title and interest of Seller in and to all easements and appurtenances
inuring to the benefit of the Land, and the Laughlin Land; and all right,
title and interest of Seller in and to any streets, alleys, passages and
other rights-of-way included therein or adjacent thereto (before or after
the vacation thereof) to the extent inuring to the benefit of the owner of
the Land, the Building or the Leasehold Estate.
(tt) SURVEY. The existing as-built surveys of the Dry Ridge Land,
the Holland Land, the Laughlin Land, the Laughlin Fee Land, the Medford
Land, the Monroe Land, the Norton Shores Land and the Warrenton Land,
prepared by one or more surveyors licensed by the state in which the
applicable land is located and certified to Seller, and the Title Insurer,
prepared in accordance with the current Minimum Standard Detail
Requirements for Land Title Surveys adopted by the American Land Title
Association and American Congress on Surveying and Mapping, setting forth
the legal description of the applicable land and showing thereon the Dry
Ridge Building, the Holland Building, the Laughlin Building, the Medford
Building, the Monroe Building, the Norton Shores Building and the
Warrenton Building, as the case may be, and all recorded easements
encumbering and/or benefiting the applicable land.
(uu) TANGIBLE PERSONAL PROPERTY. Any and all tools, machinery,
equipment, fixtures, furnishings, signs, supplies and other tangible
personal property situated in or upon the Real Property or any part
thereof and listed on Exhibit C attached hereto, to the extent owned by
Seller, and all replacements thereto between the date hereof and the
Closing Date.
(vv) TITLE COMMITMENT. One or more title commitments dated on or
after January 15, 2000, for the current form of ALTA Owner's Title
Insurance Policy covering the Land and Building and for the current form
of ALTA Leasehold Title Insurance Policy covering the Leasehold Estate,
issued by the Title Insurer in favor of Purchaser in the amount of the
Purchase Price (or in the amount of the allocated portion of the Purchase
Price described in Exhibit B attached hereto, if separate title
commitments are issued), showing Seller as (i) the fee simple owner of the
Dry Ridge Land, Dry Ridge Building, Holland Land, Holland Building,
Laughlin Fee Land, Medford City Land, Medford Building, Monroe Land,
Monroe Building, Norton Shores Land, Norton Shores Building, Warrenton
Land and Warrenton Building, and (ii) the holder of the Leasehold Estate,
and including all standard and general printed exceptions and exclusions
raised in such form of commitment.
(ww) TITLE INSURER. Fidelity National Title Insurance Company.
(xx) TITLE POLICY. One or more ALTA Form Extended Coverage Owner's
Title Insurance Policies for the Land and Building and an ALTA Form
Extended Coverage Leasehold Title Insurance Policy for the Leasehold
Estate issued by the Title Insurer pursuant to the Title Commitment,
subject only to the Permitted Exceptions, together with all endorsements
reasonably requested by Purchaser and which the Title Insurer has
committed in writing to issue prior to the Due Diligence Approval Date,
including, but not necessarily limited to zoning, same as survey,
contiguity, comprehensive and access endorsements, to the extent available
in the applicable jurisdictions.
(yy) UPDATED SURVEY. As defined in Section 4.1 hereof.
(zz) WARRENTON BUILDING. The building or buildings located at the
Warrenton Land and comprising the outlet center commonly known as
Warrenton Outlet Center, Warrenton, Xxxxxx County, Missouri.
(aaa) WARRENTON LAND. The land located in Warrenton, Xxxxxx County,
Missouri, legally described on Exhibit A-8 attached hereto.
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ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Subject to the conditions and on the terms
contained in this Agreement:
(a) Purchaser agrees to purchase and acquire from Seller, and Seller
agrees to sell and transfer to Purchaser, the Land and Building pursuant
to the Deed.
(b) Purchaser agrees to purchase, acquire and assume from Seller,
and Seller agrees to sell, assign, convey and transfer to Purchaser, all
of Seller's right, title and interest in, to and under the Ground Lease,
pursuant to the Assignment and Assumption of Leasehold Estate.
(c) Purchaser agrees to purchase and acquire from Seller, and Seller
agrees to sell, assign, convey and transfer to Purchaser, all of Seller's
right, title and interest in and to the Leases.
(d) Purchaser agrees to purchase and acquire from Seller, and Seller
agrees to sell, assign, convey and transfer to Purchaser, any and all of
Seller's right, title and interest in and to the following, to the extent
assignable without the consent of any other party thereto: (i) the
Contracts; (ii) the Licenses, and (iii) the Intangible Personal Property;
provided, however, that prior to the Due Diligence Approval Date,
Purchaser may give written notice to Seller requesting Seller to terminate
any one or more of the Contracts, to the extent any such Contracts contain
a cancellation provision permitting such cancellation, and in such event
Seller shall deliver cancellation notices to the applicable parties to
such Contracts on or before Closing and Purchaser shall assume such
Contracts only for the unexpired term thereof. Any termination charge or
penalty applicable to any Contract which is cancelled at Purchaser's
request shall be the responsibility of Seller and paid prior to or on the
Closing Date.
(e) Purchaser agrees to purchase and acquire from Seller, and Seller
agrees to sell, convey and transfer to Purchaser, any and all of Seller's
right, title and interest in the Tangible Personal Property, by good and
sufficient xxxx of sale, containing no warranties other than Seller's
warranty that it has not previously sold or pledged such Tangible Personal
Property.
ARTICLE 3
DEPOSIT AND PURCHASE PRICE
3.1. DEPOSIT; PAYMENT OF PURCHASE PRICE. Purchaser agrees to pay to
Seller, and Seller agrees to accept payment of the Purchase Price as follows:
(a) The Deposit (together with interest thereon, net of investment
charges, if any) shall be (i) paid to Seller and applied against the
Purchase Price at Closing, or (ii) disbursed in accordance with the terms
hereof, if Closing does not occur as contemplated hereby.
(b) At Closing, Purchaser shall pay to Seller the balance of the
Purchase Price (after deduction of the Deposit, together with net interest
earned thereon, paid to Seller and applied against the Purchase Price as
above provided), plus or minus prorations as hereinafter provided, by wire
transfer of immediately available federal funds.
ARTICLE 4
SURVEY
4.1 SURVEY. Seller has previously delivered the Survey to Purchaser.
Promptly following the Effective Date, at Seller's sole cost and expense, Seller
shall obtain and deliver to Purchaser an update to the Survey (the "Updated
Survey"), updating the same to a current date, depicting (by lot or metes and
bounds description, as
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applicable) any "out-parcels" constituting any portion of the Real Property,
adding such information and detail thereto as Purchaser may designate and adding
Purchaser, Purchaser's lender and the Title Insurer as additional parties to
whom the Updated Survey shall be certified, provided that Purchaser delivers to
Seller within two (2) days following the Effective Date a notice including a
description of the additional information and detail being requested and the
names of such additional parties. If the Survey or the Updated Survey discloses
any encroachments onto any Land or the Laughlin Land, as applicable, from any
adjacent property, encroachments by or from the Land or the Laughlin Land, as
applicable, onto any adjacent property, violations of or encroachments upon any
recorded building lines, restrictions or easements affecting any Land or the
Laughlin Land, as applicable, matters indicating possible rights of third
parties (other than tenants under existing Leases) or any other matter which in
Purchaser's reasonable judgment adversely affects the Real Property to which
Purchaser objects, Purchaser shall give Seller notice of such objection (i) no
later than ten (10) days after the Effective Date, with respect to the Survey,
and (ii) within five (5) business days after Purchaser's receipt of any Updated
Survey, with respect to each survey comprising the Updated Survey; Purchaser's
right to object to encroachments, violations, unpermitted exceptions or other
matters shown on the Updated Survey shall be limited to those matters shown on
the Updated Survey that were not shown on the Survey. Seller shall thereafter
have the right (without obligation) to elect, by written notice delivered to
Purchaser within five (5) business days after receipt of Purchaser's objections
to the Survey or any survey comprising the Updated Survey, as applicable (each,
a "Seller's Survey Response Period"), to have such encroachments, violations,
unpermitted exceptions or other matters so objected to by Purchaser removed from
the Survey or Updated Survey, as applicable, or insured over by the Title
Insurer. Any proposed title insurance endorsements shall be subject to the
reasonable approval of Purchaser and shall be issued prior to or at the time of
Closing. If Seller fails to elect during the applicable Seller's Survey Response
Period to have any objections properly and timely made by Purchaser removed from
the Survey (or the Updated Survey, as applicable) or insured over, provided that
any insurance shall be subject to Purchaser's reasonable approval, Purchaser may
elect, within five (5) days after the expiration of the applicable Seller's
Survey Response Period, and as its sole and exclusive remedy, to either (i)
terminate this Agreement, in which event the Deposit, together with net interest
earned thereon, shall promptly be returned to Purchaser, all obligations of the
parties hereunder shall terminate (other than Purchaser's Indemnity and
Purchaser's Confidentiality Obligations, which shall expressly survive such
termination), and this Agreement shall otherwise have no further force or
effect, or (ii) accept the Real Property subject to such encroachments,
violations, unpermitted exceptions or other matters which Seller did not elect
to cure, all of which shall thereafter be deemed Permitted Title Exceptions for
purposes hereof. Purchaser's failure to timely make either election shall be
deemed an election under clause (ii) above. Following delivery to Purchaser of
the Updated Survey, Purchaser shall have the right, at Purchaser's cost and
expense, to request that the Updated Survey be additionally updated to add
additional parties, detail or information, but the receipt of any additional
updates shall not be a condition to Purchaser's obligations under this
Agreement.
ARTICLE 5
TITLE
5.1 TITLE. Seller, at its sole cost and expense, has previously delivered
the Title Commitment to Purchaser, including a copy of all recorded documents
raised as an exception therein. If the Title Commitment raises any title
exceptions (other than general exceptions and rights of tenants under existing
Leases) to which Purchaser objects, Purchaser shall give Seller notice of such
objections no later than the fifteen (15) days after the Effective Date, and
Seller shall thereafter have the right (without obligation) to elect by written
notice within five (5) business days after receipt of such objections (the
"Seller's Title Response Period") to have such unpermitted exceptions so
objected to by Purchaser removed from the Title Commitment or insured over by
the Title Insurer. Any title insurance endorsements proposed by Seller shall be
subject to the reasonable approval of Purchaser and shall be issued prior to or
at the time of Closing. If Seller fails to elect during the Seller's Title
Response Period to have the same removed or insured over, provided any title
insurance endorsements shall be subject to Purchaser's reasonable approval,
Purchaser may elect, within five (5) business days after the expiration of the
Seller's Title Response Period, and as its sole and exclusive remedy, to either
(i) terminate the Agreement, in which event the Deposit, together with net
interest earned thereon, shall promptly be returned to Purchaser, all
obligations of the parties hereunder shall terminate (other than Purchaser's
Indemnity and Purchaser's Confidentiality Obligations, which shall expressly
survive such termination), and this Agreement shall otherwise have no further
force or effect, or (ii) accept the Real Property, subject to such unpermitted
exceptions raised in said Title Commitment which Seller did not elect to cure,
all of which shall thereafter be deemed Permitted Title Exceptions for purposes
hereof. Purchaser's failure to timely make either election shall be deemed an
election under clause (ii) above. Notwithstanding the foregoing, Seller shall be
obligated to cause to be
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paid off and released of record at Closing any mortgages or other monetary
encumbrances encumbering the Real Property, including any that arise, or are
first identified by the Title Insurer, following the Due Diligence Approval
Date; provided, however, that Seller shall have the right to cause the Title
Insurer to insure over any mechanic's liens filed against the Real Property, to
the extent Seller is disputing the same. On the Closing Date, Seller shall, at
Seller's sole cost and expense (except as otherwise provided in Section 6.3
below), cause the Title Insurer to issue the Title Policy (or a marked-up "New
York Style" Commitment), to Purchaser pursuant to and in accordance with the
Title Commitment, insuring fee simple title to the Land and Building in
Purchaser as of the Closing Date and insuring Purchaser as holder of the
Leasehold Estate as of the Closing Date, subject only to the Permitted Title
Exceptions.
ARTICLE 6
POSSESSION, PRORATIONS AND CLOSING COSTS
6.1 POSSESSION. Possession of the Property shall be delivered to Purchaser
on the Closing Date, subject to the rights of tenants in possession under the
Leases, the rights of the Ground Lessor under the Ground Lease and the rights of
other parties under Permitted Title Exceptions.
6.2 PRORATIONS.
(a) TAXES. On or before Closing, Seller shall pay in full (or credit
Purchaser at Closing for) all special assessments (including all
installments thereof accrued prior to the Closing Date if payable in
installments) levied, assessed and confirmed with respect to the Real
Property and which are payable through the Closing Date. Any special
assessments (including all installments thereof) which come due subsequent
to the Closing Date shall be payable by the Purchaser. General real estate
taxes and other state or local taxes, fees, charges and assessments
affecting the Real Property shall be prorated as of the Closing Date on an
accrual basis and on the basis of 100% of the most recent ascertainable
amounts of each such item, and the net credit to Seller or Purchaser (as
the case may be) shall be applied as an adjustment to or against the
Purchase Price on the Closing Date. Any such taxes prorated on an
estimated basis on the Closing Date shall be reprorated by the parties
when and as the actual amount of such item becomes known. Any adjustment
due to reproration shall be effected in cash not later than ten (10) days
following final determination of the amount of such item and demand by the
party to whom payment is due. As an example of the foregoing, if real
estate taxes affecting the Real Property or any portion thereof are
payable in arrears (that is, the taxes for the year 1999 are payable
entirely in the year 2000), the taxes for the year 1999 that are payable
in the year 2000 shall be paid entirely by Seller and the taxes for the
year 2000 that are payable in the year 2001 shall be prorated as of the
Closing Date. Specifically, if the Closing occurs on June 30, 2000, Seller
shall be responsible for payment of all of the taxes for the year 1999
taxes and 181/366ths of the taxes for the year 2000 that are payable in
the year 2001 and Purchaser shall be responsible for payment of the
balance of the taxes for the year 2000 and taxes for the year 2001 and all
subsequent years. Seller reserves the right (a) to meet with governmental
officials and to contest any reassessment governing or affecting Seller's
obligations under this Section 6.2, and (b) to contest any assessment of
the Real Property or any portion thereof and to attempt to obtain a refund
for any taxes previously paid. Subject to the rights of any tenants under
any Leases to receive reimbursement of portions of any such refunds,
Seller shall retain all rights with respect to any refund of taxes
applicable to any period prior to the Closing Date. In furtherance of the
foregoing, Purchaser acknowledges that Seller is currently seeking
reductions in the real estate tax assessments of the Real Property and has
engaged legal counsel to seek such reductions. Seller shall retain the
sole and exclusive right to direct such counsel and to negotiate
settlements with the applicable taxing authorities as to any tax year for
which Seller is fully or partially responsible for the payment of such
taxes; provided that with respect to any tax year as to which the taxes
are being prorated between Seller and Purchaser, Purchaser shall have the
right to participate (in the exercise of its reasonable discretion) in
such directions and negotiations. Seller shall be liable for all costs and
expenses incurred by such legal counsel relating to any tax year (whether
calendar or otherwise) ending prior to the tax year in which the Closing
occurs. At Closing, Seller shall assign to Purchaser and Purchaser shall
assume and agree to be liable for all fees and expenses owing to such
legal counsel for the tax year in which the Closing occurs and for all
subsequent tax periods; provided, however, that to the extent any fees and
expenses relate to a tax year for which taxes are being prorated as herein
provided, such fees and expenses shall be similarly prorated.
8
(b) FIXED, MINIMUM AND BASE RENTS. Subject to Section 6.2(m) below
and this Section 6.2(b), Seller shall be entitled to fixed, minimum and
base rents which are due or past due or not yet due but accrued under the
terms of the Leases, prior to, and prorated as of the Closing Date.
Purchaser shall be entitled to all fixed, minimum and base rents accruing
and prorated from and after the Closing Date. Purchaser shall be entitled
to a credit at Closing for Purchaser's share of all such fixed, minimum
and base rents due in the month in which the Closing Date occurs and
received by Seller prior to the Closing Date. If any such fixed, minimum
or base rents due in the month in which the Closing Date occurs have not
been received by Seller as of the Closing Date, Seller shall receive a
credit at Closing for its share of such rents and Purchaser shall receive
a credit at Closing for its share of such rents, subject in each case to
readjustment as described in Section 6.2(m) below. By way of example, if
(i) there is $1,000,000 in fixed, minimum and base rents due for the month
in which the Closing Date occurs, (ii) Closing occurs on June 7, 2000, and
(iii) $900,000 of such rents have been collected as of Closing, then
Purchaser shall receive a credit at Closing of $800,000 (24/30ths of
$900,000, plus 24/30ths of $100,000) and Seller shall receive a credit of
$20,000 (6/30ths of $100,000).
(c) BASE PERCENTAGE RENT. Subject to Section 6.2(m) below and this
Section 6.2(c), with respect to those Leases pursuant to which tenants pay
rent based on a percentage of sales rather than any fixed, minimum or base
rent ("Base Percentage Rents"), Seller shall be entitled to such Base
Percentage Rents which are due or past due or not yet due but accrued
under the terms of the Leases, prior to, and prorated as of the Closing
Date. Purchaser shall be entitled to all Base Percentage Rents accruing
and prorated from and after the Closing Date. The parties acknowledge that
Base Percentage Rents for a particular month are based on the actual sales
for such month, but are not actually payable until after the end of such
month. Therefore, if the Closing occurs on May 31, 2000, Seller shall be
entitled to the Base Percentage Rent calculated on the basis of any
applicable tenant's sales for the entire month of May, even though such
Base Percentage Rent may not be due until mid or late June. Seller shall
receive a credit at Closing for its share of any Base Percentage Rents
that are calculated on the basis of sales occurring during the month in
which the Closing Date occurs and for any Base Percentage Rents that are
calculated on the basis of sales occurring during any prior month that is
due in the month in which the Closing Date occurs, and Purchaser shall
receive a credit at Closing for its share of any Base Percentage Rents
that are calculated on the basis of sales occurring during the month in
which the Closing Date occurs, subject in each case to readjustment as
described in Section 6.2(m) below. If on the Closing Date, the sales for
any applicable sales reporting period are not known, Seller and Purchaser
shall reasonably estimate the amount thereof and such proration shall be
based on such estimate, subject to readjustment as provided in Section
6.2(n) below. If the Closing Date occurs on a date other than the last day
for a sales reporting period for any tenant, sales for such tenant shall
be prorated based on a fraction, the denominator of which is the total
number of days within the applicable sales reporting period in which the
Closing Date occurs and the numerator of which is the number of days in
such sales reporting period prior to the Closing Date.
(d) OVERAGE RENTS. Overage rents to be prorated hereunder ("Overage
Rents") shall include, but not be limited to, percentage rents (other than
those described in subparagraph (c) above), consumer price index
escalation payments, other similar rental payments in excess of fixed,
minimum and base rents under the Leases, and other payments related to the
occupancy or use of the Real Property or Personal Property, whether
finally determined before or after the expiration of the fiscal years
under various Leases. Seller shall be entitled to Overage Rents which are
due or past due or not yet due but accrued under the term of the Leases,
prior to, and prorated as of the Closing Date. Purchaser shall be entitled
to all Overage Rents accruing and prorated from and after the Closing
Date. Overage Rents shall be separately prorated under each Lease on the
basis of the fiscal year set forth in each Lease for the payment of
Overage Rents. The foregoing notwithstanding, with the exception of
Overage Rents due and payable in the month in which the Closing Date
occurs, which shall be credited to Purchaser and Seller as described
below, Overage Rents shall not be credited at Closing, but shall instead
be adjusted and paid, subject to collection from tenants, at the year-end
adjustment described below. All interim Overage Rent payments made before
the Closing Date shall be retained by Seller until year-end adjustment as
provided in this Section 6.2(d) and determination of Seller's and
Purchaser's allocable share thereof. Overage Rents for the month in which
the Closing Date occurs shall be prorated as between Seller and Purchaser
based upon the number of days in the month occurring before the Closing
Date. Purchaser shall be entitled to a credit at Closing for Purchaser's
share of all Overage Rent due in the month in which the Closing Date
occurs and received by Seller prior to the Closing Date. If any Overage
Rent due in the month in which the Closing Date occurs has not been paid
as of
9
the Closing Date, Seller shall receive a credit at Closing for its share
thereof and Purchaser shall receive a credit at Closing for its share
thereof, subject in each case to readjustment as described in this Section
6.2(d). If on the Closing Date the amount of any Overage Rent being
prorated is not actually known, Seller and Purchaser shall reasonably
estimate the amount thereof and such proration shall be based on such
estimate, subject to readjustment as provided in this Section 6.2(d). All
interim Overage Rent payments made to Purchaser after the Closing Date
shall be retained by Purchaser until year-end adjustment as provided in
this Section 6.2(d) and determination of Seller's and Purchaser's
allocable share thereof. Upon final determination of Overage Rents owed by
a tenant under its Lease for the fiscal year under that Lease in which the
Closing Date occurs, Seller and Purchaser shall adjust between themselves
amounts owed for such fiscal year on account of Overage Rents, and
Seller's allocable share of such Overage Rents shall be equal to an amount
determined by multiplying total Overage Rents owed by a fraction, the
numerator of which is the number of days in such fiscal year before the
Closing Date, and the denominator of which is the total number of days in
such fiscal year. Further, all such allocations shall be adjusted to
reflect any Leases not in effect for the full fiscal year. At the end of
the fiscal year for each Lease for which Overage Rents are due from a
tenant, Purchaser shall promptly xxxx the amounts due, if necessary. To
the extent received by Purchaser under the applicable Lease, Purchaser
shall furnish Seller with financial statements indicating the sales and
percentage rent figures for each tenant for all relevant periods and
Purchaser shall promptly remit to Seller its allocable share, less interim
payments previously retained by or credited to Seller, if any; provided,
however, in no event shall Purchaser be obligated to remit any amounts
payable to Seller as provided in this sentence unless actually collected
from the applicable tenants. If Seller has retained or been credited
amounts in excess of its allocable share, Seller shall, within fifteen
(15) days after notice from Purchaser of the excess owed Purchaser, remit
such excess to Purchaser. Any Overage Rents with respect to Leases
terminated before the Closing Date shall belong entirely to Seller, and
Purchaser shall remit to Seller, promptly following receipt, all payments
made to Purchaser after the Closing Date on account of such Overage Rents.
Any Overage Rents with respect to Leases commencing on or after the
Closing Date shall belong entirely to Purchaser.
(e) COMMON AREA MAINTENANCE CHARGES, TAXES AND SIMILAR Expenses. To
the extent tenants under Leases ("CAM Leases") pay monthly estimates of
common area maintenance charges, insurance charges, taxes, utility charges
and similar expenses charged to tenants for reimbursement, including
administrative fees (collectively, "Charges"), with an adjustment at the
end of each fiscal year applicable to Charges, such amounts shall be
prorated between Purchaser and Seller in accordance with this Section
6.2(e). Purchaser shall be entitled to a credit at Closing for Purchaser's
share of any tenant's payment for Charges that is due in the month in
which the Closing Date occurs and received by Seller prior to the Closing
Date. If any such tenant's payment for Charges that is due in the month in
which the Closing Date occurs has not been paid as of the Closing Date,
Seller shall receive a credit at Closing for its share thereof and
Purchaser shall receive a credit at Closing for its share thereof, subject
in each case to readjustment as described in Section 6.2(m) below. On the
Recalculation Date, Seller shall calculate the total amount of payments of
Charges received by or credited to Seller from each tenant under a CAM
Lease during the current fiscal year (subject to readjustment as provided
in Section 6.2(m) below) and shall compare such amount to the applicable
tenant's applicable share of all expenses comprising Charges theretofore
incurred by Seller or for which Seller is otherwise entitled to
reimbursement, including administrative fees and other fees and expenses,
in the current fiscal year through the Closing Date (including any Charges
for which a credit has been given to Purchaser as herein provided). To the
extent that the amount of the Charges received by or credited to Seller
(subject to readjustment as provided in Section 6.2(m) below) exceeds such
tenant's applicable share of all such expenses, Seller shall forward such
excess amount to Purchaser, together with the associated calculation
described above. To the extent that the Charges received by or credited to
Seller (subject to readjustment as provided in Section 6.2(m) below) are
less than such tenant's applicable share of all such expenses, Purchaser
shall forward such deficient amount to Seller, promptly following demand
by Seller; provided, however, that in no event shall Purchaser be
obligated to remit such deficient amount to Seller unless actually
collected from the applicable tenants. Seller's calculations shall, in all
events, be subject to reasonable audit and verification by Purchaser.
(f) MARKETING EXPENSES. With respect to any Leases which require the
tenants thereunder to make payments to a marketing fund for any retail
center comprising the Real Property, such payments shall be prorated
between Purchaser and Seller in accordance with this Section 6.2(f).
Purchaser shall be entitled to a credit at Closing for Purchaser's share
of any tenant's payment for the marketing fund that is due in the month
10
in which the Closing Date occurs and received by Seller prior to the
Closing Date. If any such tenant's payments for the marketing fund due in
the month in which the Closing Date occurs has not been paid as of the
Closing Date, Seller shall receive a credit at Closing for its share
thereof and Purchaser shall receive a credit at Closing for its share
thereof, subject in each case to readjustment as provided in Section
6.2(m) below. On the Recalculation Date, Seller shall calculate the total
amount of marketing payments received by or credited to Seller (subject to
readjustment as provided in Section 6.2(m) below) from all tenants of the
Real Property for the marketing fund during the current fiscal year and
shall compare such amount to the total amount of marketing expenses
theretofore incurred by Seller or for which Seller is otherwise entitled
to reimbursement, including administrative fees and other fees and
expenses, in the current fiscal year through the Closing Date (including
any amounts for which a credit has been given to Purchaser as herein
provided). To the extent that the aggregate amount of the payments
received by or credited to Seller (subject to readjustment as provided in
Section 6.2(m) below) exceeds the aggregate amount of such expenses,
Seller shall promptly forward such excess amount to Purchaser, together
with the associated calculation described above. To the extent that the
aggregate amount of the payments received by or credited to Seller
(subject to readjustment as provided in Section 6.2(m) below) is less than
the aggregate amount of such expenses, Purchaser shall forward such
deficient amount to Seller, promptly following demand by Seller; provided,
however, that in no event shall Purchaser be obligated to remit such
deficient amount to Seller unless actually collected from the applicable
tenants. Seller's calculations shall, in all events, be subject to
reasonable audit and verification by Purchaser.
(g) PREPAID RENTS AND SECURITY DEPOSITS. Seller shall reasonably
estimate the amount of all prepaid rents (net of any outstanding amounts
due landlord on a tenant by tenant basis) ("Net Prepaid Rents") and all
security and other deposits of tenants under Leases not theretofore
applied as of the Closing Date, with interest thereon to the extent any
interest is required to be paid to such tenants under the terms of their
Leases. Purchaser shall receive a credit against the Purchase Price for
such net amount. On the Recalculation Date, Seller shall recalculate such
estimate in accordance with the provisions of Section 6.2(m) below and
remit to Purchaser (or if applicable, Purchaser shall pay to Seller) the
difference between such estimate and the recalculated amount. Purchaser
shall accept the liability for the proper application of such prepaid
rents and security deposits.
(h) CONTRACTS; UTILITIES. Other than any Contracts that may be
covered by the prorations described in Sections 6.2(e) and 6.2(f) above,
Purchaser shall be entitled to a credit against the Purchase Price for
sums that are due (or accrued) and unpaid as of the Closing Date under any
Contracts, and Seller shall be entitled to a credit to the extent that
sums have been paid under any Contracts for services to be performed or
goods to be delivered after the Closing Date. The foregoing
notwithstanding, Seller shall remain liable for any amounts owed under any
Contract for any leasing commissions or tenant improvement costs for any
Leases executed prior to the Effective Date, Seller shall receive no
credit for any amounts paid under any such Contract prior to the Closing
Date and Purchaser shall receive a credit for any amounts due thereunder
from and after the Closing Date. Any Contract for any leasing commissions
and tenant improvement costs for any Leases executed after the Effective
Date shall be governed by the provisions of Section 10.1(c) below.
Payments of accounts for water, sewer, electricity and all other utilities
currently in the name of Seller (excluding any that cover properties in
addition to the Property, such as telephone) shall be placed in the name
of Purchaser on the Closing Date and prorated as of the Closing Date.
Seller shall arrange for final meter readings, to the extent possible.
Seller shall cooperate with Purchaser to effect the transfer of utility
accounts from Seller to Purchaser. The prorations made pursuant to this
Section 6.2(h) shall be readjusted, to the extent necessary in accordance
with the provisions of Section 6.2(n) below. Purchaser shall have the
responsibility for the payment when due of all amounts for which it
receives a credit against the Purchase Price pursuant to this Section
6.2(h).
(i) OTHER ITEMS OF EXPENSE OR RECEIPT. All other customarily
prorated items of expense or receipt that are not otherwise specifically
described herein shall be prorated between Seller and Purchaser as of the
Closing Date as is customary for similar transactions in the state where
the applicable Real Property is located. Except with respect to items
prorated at Closing, Seller shall be responsible for payment of any and
all bills or charges incurred prior to the Closing Date for work,
services, supplies or materials, and Purchaser shall be responsible for
payment when due of any and all bills or charges incurred on or after the
Closing Date for work, services, supplies or materials. Seller shall be
responsible for payment when due of all
11
accrued salaries and other benefits due to or in respect of its on-site
employees at the Real Property and no credit will be given to Purchaser
therefor.
(j) INTENTIONALLY OMITTED.
(k) GROUND LEASE. All ground rent and other sums payable by Seller
under the Ground Lease shall be prorated as of the Closing Date.
(l) ADJUSTMENTS. Except as otherwise set forth in this Section 6.2,
prorations shall be accomplished by an adjustment in the Purchase Price
due Seller on the Closing Date.
(m) COLLECTIONS AND APPLICATION OF PAYMENTS AFTER CLOSING. From and
after the Closing, Seller shall be entitled to xxxx, collect and receive
all fixed, minimum and base rentals due in the month in which the Closing
Date occurs, all Base Percentage Rentals calculated on the basis of sales
occurring during the month in which the Closing Date occurs or due in such
month, all Overage Rents due in the month in which the Closing Date
occurs, all Charges under CAM Leases due in the month in which the Closing
Date occurs and all contributions for marketing expenses due in the month
in which the Closing Date occurs (collectively "Closing Month Amounts"),
and the tenants under the Leases shall, pursuant to the tenant notices
disclosing the sale, be instructed to pay all such Closing Month Amounts
directly to Seller. Except to the extent provided in the preceding
sentence, after the Closing Date, Purchaser shall xxxx tenants for all
amounts due under Leases and attributable to periods prior to the Closing
Date (including any amounts accrued prior to, but payable after, the
Closing Date), including without limitation, any unpaid fixed, minimum and
base rents, Base Percentage Rents, Overage Rents, Charges due under CAM
Leases and contributions for marketing expenses (collectively, "Seller
Amounts"); Purchaser shall prepare and send to tenants all financial
statements and data required by Leases, and Seller shall cooperate and
assist Purchaser in the preparation thereof. Purchaser shall use good
faith and reasonable efforts to collect all Seller Amounts, including any
Closing Month Amounts not paid to Seller. Notwithstanding the foregoing
and in the absence of any direction from tenants to the contrary, rental
and other payments received by Purchaser from tenants after Closing
(excluding Overage Rents, which shall be applied in accordance with the
provisions of Section 6.2(d) above) shall be applied on a tenant by tenant
basis, as follows: (i) first, to the actual out-of-pocket third party
costs of collection; (ii) second, to rent and other charges due in the
month in which the Closing Date occurs, unless the applicable amount was
paid directly to Seller; (iii) third, to current rent and other charges
then owed to Purchaser; (iv) fourth, to any Seller Amounts then due
Seller; and (v) finally, any balance to Purchaser. On the Recalculation
Date, Seller and Purchaser shall determine the total amount of all Seller
Amounts collected by Purchaser after the Closing Date and prior to the
Recalculation Date which are to be applied to Seller as herein provided
and the total amount of all Closing Month Amounts collected by Seller
after the Closing and prior to the Recalculation Date. If the total of all
Seller Amounts so collected by Purchaser exceeds the credits for unpaid
rents and other charges given to Seller at Closing, Purchaser shall
promptly remit such excess to Seller. If the total of all Seller Amounts
so collected by Purchaser is less than the credit for unpaid rents and
other charges given to Seller at Closing, Seller shall promptly remit such
shortfall to Purchaser. If Purchaser's prorata share of all Closing Month
Amounts collected and retained by Seller after the Closing exceeds the
credit for such unpaid Closing Month Amounts given to Purchaser at
Closing, Seller shall promptly remit such excess amount to Purchaser. If
Purchaser's prorata share of all Closing Month Amounts collected and
retained by Seller after the Closing is less than the credit for such
unpaid Closing Month Amounts given to Purchaser at Closing, Purchaser
shall promptly remit such shortfall to Seller. In addition, on the
Recalculation Date, Seller shall calculate the actual amount of prepaid
rents received and retained by Seller as of the Closing Date. To the
extent such amount exceeds the credit for Net Prepaid Rents given to
Purchaser pursuant to Section 6.2(g) above, Seller shall promptly remit
such excess amount to Purchaser. To the extent the credit for Net Prepaid
Rents exceeded the actual amount of prepaid rents, Purchaser shall
promptly remit such shortfall to Seller. From time to time after the
Recalculation Date, promptly following receipt by Purchaser of any Seller
Amounts, Purchaser shall promptly remit such amounts to Seller as herein
provided. After the Closing Date, Seller shall have the right to pursue
any remedy against any tenant owing Seller Amounts which are not otherwise
received and retained by Seller (including to the extent independent or
readily separable from any payments due Purchaser, any Seller Amounts due
after the Closing Date) and retain any amounts so collected, provided that
(i) Seller shall notify Purchaser of its intent to institute any legal
proceeding relating thereto not less than ten (10) days prior to the
institution thereof, (ii) Seller shall not institute any legal proceedings
for collection of such Seller Amounts prior to the
12
expiration of sixty (60) days following the Closing Date, and (iii) Seller
shall in no event institute any proceeding to evict or dispossess a tenant
from the Real Property. Purchaser may, by written notice to Seller within
ten (10) days of receipt of Seller's notice, restrict Seller from
collecting such Seller Amounts, but only if Purchaser first pays Seller
any such Seller Amounts in exchange for Seller's assignment to Purchaser
of all of Seller's rights and causes of action with respect thereto. With
respect to Seller Amounts owed by tenants who are no longer tenants of the
Real Property as of the Closing Date, Seller shall retain all rights
relating thereto. Seller shall have no right to bring any action or
otherwise try to collect from any tenant, any Seller Amount due after the
Closing Date, that is not independent of, or readily severable from,
amounts owed to and collectible by Purchaser.
(n) Notwithstanding the foregoing, to the extent any of the
prorations described in Sections 6.2(c), 6.2(h), 6.2(i) or 6.2(k) above
are based on estimates or prove to be incorrect, then within ninety (90)
days after the end of the calendar year in which the Closing occurs,
Purchaser and Seller shall cooperate with each other to prepare a
reproration statement of any such items, and the party that is obligated
to make any payment as a result of such reproration shall make such
payment to the other party within ten (10) days after demand; provided,
however, that to the extent any prorated amount is comprised of an amount
due from a tenant, in no event shall Purchaser be obligated to remit any
such amount to Seller unless actually collected from such tenant.
6.3 CLOSING COSTS. Seller shall pay all title charges and premiums
attributable to the Title Policy (provided that with respect to endorsements to
the Title Policy, Seller shall pay up to a maximum of $25,000 and Purchaser
shall pay the balance), all survey charges and fees for the Survey and the
Updated Survey, all state, county and municipal real property transfer or excise
taxes and fees (if any), all recordation taxes and fees for the Deed, Assignment
and Assumption of Leasehold Estate any releases of existing liens or
encumbrances and one-half of the escrow costs (as described in Section 7.2
below). Purchaser shall pay all recordation and mortgage taxes and fees on any
instruments related to Purchaser's financing, all title insurance and
money-lender's escrow charges incurred in connection with any mortgage loans
obtained by Purchaser, any additional survey costs attributable to Purchaser's
lender's requests incurred subsequent to the delivery of the Updated Survey and
one-half of the escrow costs (as described in Section 7.2 below). The parties
shall each be solely responsible for the fees and disbursements of their
respective counsel and other professional advisers.
ARTICLE 7
DEPOSIT AND CLOSING ESCROW
7.1 DEPOSIT IN ESCROW. Within two (2) business days after the Effective
Date, Purchaser shall cause the Deposit to be deposited in escrow with the
Escrowee. Purchaser's failure to timely deliver the Deposit described in the
preceding sentence shall be deemed a material default hereunder, giving rise to
the rights and remedies of Seller as described in Section 15.2 below. From and
after the Due Diligence Approval Date, the Deposit shall be deemed earned by
Seller and shall be non-refundable, except as otherwise provided in Article 4,
Article 5, Article 9, Article 12, Section 11.1, Section 13.2, Section 13.3,
Section 13.4 and Section 15.1 hereof. Escrowee shall be directed by the parties
to invest the Deposit in money market accounts designated by Purchaser and
reasonably acceptable to Seller, with interest thereon being applied on account
of the Purchase Price at Closing, or if Closing does not occur for any reason,
then such interest shall be paid to the party entitled to the Deposit. The
parties shall direct Escrowee to disburse the Deposit, together with net
interest earned thereon, to the party entitled to the same as set forth in this
Agreement, or as otherwise provided in Section 7.2 below. The foregoing
notwithstanding, in the event that this Agreement is terminated pursuant to
Sections 4.1, 5.1, 11.1, 13.1, 13.2 or 13.3 below, the Escrowee will release the
Deposit to the applicable party, without the need for, or requirement of,
further instruction from Purchaser or Seller, except for a copy of the written
notice required to be given under any such section.
7.2 CLOSING ESCROW. Upon the execution of this Agreement by Purchaser and
Seller, and the acceptance of this Agreement by Escrowee in writing, this
Agreement shall constitute the joint escrow instructions of Purchaser and Seller
to Escrowee to open an escrow ("Escrow") for the consummation of the sale of
Property to Purchaser pursuant to the terms of this Agreement. Upon Escrowee's
receipt of the Deposit and Escrowee's written acceptance of this Agreement
Escrowee is authorized to act, and shall act, in accordance with the terms
hereof. Purchaser and Seller shall execute Escrowee's general escrow
instructions upon request; provided, however, that if there is any
13
conflict or inconsistency between such general escrow instructions and this
Agreement, this Agreement shall control. The escrow costs and fees for the
Escrow accounts described in this Article 7, including the fee for a "New York
Style" closing, shall be equally divided between Purchaser and Seller.
ARTICLE 8
BROKERAGE
8.1 BROKERAGE. Seller and Purchaser each hereby represents and warrants to
the other that it has not dealt with any broker or finder in respect to the
transactions contemplated hereby, except for Secured Capital Corporation (whose
commission shall be payable by Seller pursuant to Seller's separate written
commission agreement with said broker) and except for Triple Net Property
Realty, Inc. (whose commission in the amount of $500,000 will be paid by Seller
at and subject to the occurrence of the Closing); and Seller and Purchaser each
hereby agrees to indemnify the other for any claim for brokerage commission or
finder's fee asserted by any other person, firm or corporation claiming to have
been engaged by the party making such indemnification, including without
limitation, any commission or fee asserted by Xxxxxx Xxxxx or Clear Management,
which commission or fee shall be paid by Purchaser.
ARTICLE 9
CASUALTY AND CONDEMNATION
9.1 CASUALTY. If, prior to the Closing Date (without regard to any
extension thereto pursuant to Section 14.1 below), the Dry Ridge Building,
Holland Building, Xxxxxxxx Building, Medford Building, Monroe Building, Norton
Shores Building or Warrenton Building shall be destroyed or damaged in any one
case or in the aggregate in an amount in excess of the Material Damage Amount
(defined below), by fire or other casualty, then Purchaser shall have the option
(to be exercised in the manner hereinafter provided) to terminate this
Agreement, in which event all documents shall be returned to the respective
parties, the Deposit, together with net interest earned thereon, shall be
promptly returned to Purchaser, this Agreement shall become null and void, and
neither party shall have any further rights or obligations hereunder (subject,
however, to survival of Purchaser's Indemnity and Purchaser's Confidentiality
Obligations). Seller agrees to give Purchaser written notice of any casualty
promptly after Seller obtains knowledge of any such event, and Purchaser may
exercise such termination option by delivering written notice to Seller within
ten (10) days following the receipt of such notice. Purchaser's failure to
timely exercise such termination option shall be conclusive evidence that
Purchaser has waived such termination right. With respect to any casualty
hereunder whereby this Agreement is not terminated, upon the Closing Date,
Seller shall assign to Purchaser the interest of Seller in and to any insurance
proceeds with respect thereto, net of any portion thereof applied by Seller for
payment or reimbursement of all costs and expenses incurred by Seller in
connection therewith, including without limitation, the making of emergency
repairs, securing the applicable Real Property and complying with applicable
governmental requirements. In addition, Purchaser shall receive a credit against
the Purchase Price equal to any deductible under any policy or any uninsured or
self-insured amount for such Building or Xxxxxxxx Building, except to the extent
such amount has previously been expended by Seller for costs and expenses
incurred in connection with such casualty and not otherwise paid or reimbursed
to Seller as hereinabove provided. For the purposes hereof, the term "Material
Damage Amount" shall mean damage to any one or more of the buildings
constituting the Building or Xxxxxxxx Building reasonably determined to be in
excess of $750,000. In the event the parties hereto are unable to agree upon the
dollar amount of the aforesaid damages within ten (10) days after the date of
such fire, vandalism or other casualty, then the determination of said amount by
a licensed architect selected by Seller and reasonably acceptable to Purchaser
shall be binding upon the parties hereto and the beginning of the period in
which Purchaser will need to elect whether to terminate this Agreement shall be
tolled until such determination is complete. If the Closing Date is scheduled to
occur prior to the last day on which Purchaser is entitled to elect to terminate
this Agreement under this Section 9.1, then Closing shall be delayed to the
fifth (5th) business day following the date of Purchaser's election to proceed.
9.2 CONDEMNATION. If, prior to the Closing Date (without regard to any
extension thereto pursuant to Section 14.1 below), any judicial, administrative
or other proceeding relating to the proposed taking of any portion of the Real
Property by condemnation or eminent domain is instituted, Seller shall furnish
Purchaser notification thereof promptly following Seller's learning of same, and
Purchaser shall have the option, if such proceeding relates to a
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Substantial Portion (as hereinafter defined) of the Real Property, to terminate
this Agreement by giving Seller written notice of such termination within ten
(10) days after receipt of written notification of any such proceeding.
Purchaser's failure to give such notice in such time shall be conclusive
evidence that Purchaser has waived such option to terminate and, in such event,
Purchaser shall be assigned, at Closing, all of Seller's rights to any proceeds
or award for such taking. Should Purchaser elect to terminate this Agreement due
to the institution of such proceeding, all documents shall be returned to the
respective parties, the Deposit, together with net interest earned thereon,
shall be promptly returned to Purchaser, this Agreement shall become null and
void and neither party shall have any further rights or obligations hereunder
(subject, however, to survival of Purchaser's Indemnity and Purchaser's
Confidentiality Obligations). If the proceeding does not involve a Substantial
Portion of the Real Property, Purchaser shall not have the right to terminate
this Agreement, but shall be assigned, at Closing, all of Seller's rights to the
proceeds or award relating thereto. For the purposes of this Section 9.2, the
proceeding shall be deemed to involve a "Substantial Portion" of the Real
Property if the proceeding (i) affects more than the Material Damage Amount, as
reasonably determined by the parties, (ii) causes a permanent material
deprivation of access to the applicable land or building, or (iii) involves a
taking of parking areas located on the applicable land such that subsequent to
such taking, the applicable land or building will be in violation of municipal
zoning codes and ordinances, or in violation of parking requirements contained
in any of the Leases or recorded documents. In the event the parties hereto are
unable to agree if any of the foregoing conditions exists within ten (10) days
after the date on which Purchaser is notified of the condemnation or eminent
domain proceeding, then the determination of said amount by a licensed architect
selected by Seller and reasonably acceptable to Purchaser shall be binding upon
the parties hereto and the beginning of the period in which Purchaser will need
to elect whether to terminate this Agreement shall be tolled until such
determination is complete. If the Closing Date is scheduled to occur prior to
the last day on which Purchaser is entitled to elect to terminate this Agreement
under this Section 9.2, then Closing shall be delayed to the fifth (5th)
business day following the date of Purchaser's election to proceed.
ARTICLE 10
AFFIRMATIVE COVENANTS OF SELLER AND PURCHASER
10.1 AFFIRMATIVE COVENANTS.
(a) INSPECTIONS. From the date hereof to the Closing Date (or any
earlier date on which this Agreement is terminated), Seller shall permit
Purchaser and any of its officers, employees, agents, attorneys,
accountants, architects, engineers and consultants as designated by
Purchaser (collectively, "Purchaser's Representatives") access to Seller's
books and records relating to the ownership and operation of the Property
and access to and entry upon the Real Property, to examine, inspect,
measure and test the Real Property and conduct tenant interviews with
on-site representatives of tenants (provided that a representative of
Seller or its managing agent(s) will be present at any such interviews)
(herein collectively, the "Inspections"), all for the purpose of
performing its due diligence investigations described in Section 13.1
below. Prior to conducting any Inspections, Purchaser shall obtain
authorization of Seller or its managing agent(s). No boring, drilling or
other physical intrusion into the structures or ground comprising all or
any portion of the Real Property (herein, "Invasive Inspections") shall be
made without the prior written consent of Seller (which consent shall not
be unreasonably withheld). Purchaser shall give not less than forty-eight
(48) hours prior notice to Seller prior to any entry upon the Real
Property for the purpose of conducting such Inspections (including any
tenant interviews), and such entry (including any tenant interviews) shall
be scheduled and coordinated with Seller or its managing agent(s). At
Seller's election, a representative of Seller or its managing agent(s)
shall be present during any entry by any of Purchaser's Representatives
upon the Real Property for conducting said Inspections, including any
tenant interviews. Access to the Real Property by Purchaser's
Representatives shall be subject to the requirements of any permits,
codes, regulations, rules, laws, statutes and other requirements of any
governmental body, agency or authority having jurisdiction, as well as the
requirements of any private covenants, restrictions and easements of
record. Purchaser's Representatives shall work in harmony with all other
contractors or workmen performing work at or around the Real Property and
except as expressly permitted herein Purchaser shall not contact or
otherwise communicate with the tenants under any of the Leases. Further,
Purchaser shall take all necessary actions to insure that neither it nor
any of the other Purchaser's Representatives shall unreasonably interfere
with any tenants under the Leases or the ongoing operations occurring at
any retail center comprising the Real Property or any adjacent site during
the course of performing any such Inspections. Purchaser shall furnish
Seller with evidence of such insurance as Seller
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may reasonably require Purchaser to carry against liabilities which may
arise in connection with the Inspections. Purchaser shall not cause or
permit any mechanic's liens, materialmen's liens or other liens to be
filed against the Property as a result of the Inspections. The right of
Purchaser or the other Purchaser's Representatives to enter upon the Real
Property to perform the Inspections shall be limited to the period from
and after the Effective Date through the Closing Date or earlier
termination of this Agreement. Further such right to enter upon the Real
Property shall immediately terminate upon termination of this Agreement
for any reason (subject, however, to Purchaser's Indemnity, as hereinafter
described). Seller shall have the right to approve, in advance, any
contractors or consultants performing any Invasive Inspections at the Real
Property, as well as the scope of any such Invasive Inspections. Seller
shall not unreasonably withhold such approvals, and shall respond to any
request for such approvals within a reasonable time after receipt of the
request and other necessary information. Purchaser shall immediately
repair and/or restore any damage to the Property caused by entry upon the
Real Property by Purchaser or the other Purchaser's Representatives, so
that the Property shall be returned to its pre-existing condition.
Purchaser shall indemnify, defend and hold harmless Seller, its officers,
directors, shareholders, partners, tenants, agents and employees
(collectively, the "Indemnified Parties"), from and against any and all
actions, losses, costs, damages, claims, liabilities, and expenses
(including court costs and reasonable attorney's fees) brought, sought or
incurred by or against any of the Indemnified Parties resulting from,
arising out of, or in any way relating to, entry upon the all or any
portion of the Real Property by Purchaser or any of the other Purchaser's
Representatives. The foregoing indemnification and repair/restoration
obligations (herein collectively referred to as "Purchaser's Indemnity")
shall expressly survive the Closing or earlier termination of this
Agreement for the longest period allowed by applicable law.
(b) DEVELOPMENT MATERIALS. No later than three (3) business days
following the Effective Date, Seller shall deliver to Purchaser the
following items (the "Development Materials") concerning the Real Property
for Purchaser's inspection and copying, but only to the extent such items
are in the actual possession of, under the control of, or reasonably
accessible to, Seller or its managing agent(s) or have not previously been
delivered to Purchaser:
(i) true, correct and complete copies of the Leases,
Contracts and Licenses;
(ii) soils reports and environmental reports prepared for
Seller and relating to the Real Property;
(iii) written notices (if any) from any governmental entity or
agency and pertaining to current violations of the Real Property
with applicable environmental or other laws;
(iv) existing title insurance policy and survey covering
the Real Property;
(v) true, correct and complete copies of operating and
financial statements for the Real Property for the most recent three
(3) full fiscal years;
(vi) the Ground Lease;
(vii) real estate tax bills for the Real Property and personal
property tax bills, if any, for the Personal Property for the most
recent three (3) full fiscal tax years, together with any
correspondence received from the tax assessor relative to changed
assessments for the Real Property and Personal Property for the 1999
or 2000 fiscal tax years;
(viii) certificates of occupancy for the Real Property;
(ix) any plans and specifications for the buildings and other
improvements comprising the Real Property, including any existing
development plans or subdivision plans affecting any portion of the
Real Property; and
(x) "rent rolls" with respect to each Building and the
Xxxxxxxx Building for the calendar month immediately preceding the
Effective Date prepared by Seller in the ordinary course of its
business;
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(xi) A "rent roll", broken out by Building and the Xxxxxxxx
Building, current as of December, 1998 and December, 1999 and
prepared by Seller in the ordinary course of its business;
(xii) An aging report, broken out by Building and the Xxxxxxxx
Building, showing, with respect to each tenant, the date through
which such tenant has paid rent and a tenant by tenant monthly
activity report showing billing and collections for the preceding 24
months;
(xiii) Copies of Seller's general ledger which provides detail
related to utility bills for the Real Property for the calendar
years 1998, 1999 and 2000 year to date; and
(xiv) any additional existing information related to the Real
Property and reasonably requested by Purchaser; but excluding any
proprietary or confidential information.
(c) LEASING OF VACANT SPACE; LEASE RENEWALS, AMENDMENTS AND
TERMINATIONS.
(i) Seller expressly reserves the right to continue to show
and take offers to lease all vacant space (i.e., meaning currently
vacant or to become vacant upon a pending expiration or termination
of an existing lease) within the Building and the Xxxxxxxx Building.
If Seller desires to enter into any such lease of vacant space,
Seller shall submit to Purchaser a deal sheet describing the terms
of any proposed lease, as well as the form of lease which Seller
proposes to use. Such description shall include all applicable
commissions, any tenant allowances and all landlord improvement
obligations, if any (collectively, "Lease Costs"). Purchaser shall
thereafter have five (5) business days after receipt of such
information in each case to provide its written approval or
disapproval thereof (which approval shall not be unreasonably
withheld). Purchaser shall be deemed to have consented to any such
proposed lease if it fails to respond to Seller's request for such
consent within five (5) business days after such request and receipt
of the aforedescribed lease information. If Purchaser approves such
lease proposal, then Seller shall have the right to enter into a
lease on materially the same terms and conditions as set forth in
the deal sheet previously furnished to Purchaser. Purchaser
acknowledges that the Leases between Seller and The GAP at the
Xxxxxxxx Building and at the Medford Building have been approved by
Purchaser and that the Lease Costs relating to such Leases shall be
governed by the following sentences of this subsection (i),
regardless when actually executed. In the event any such proposed
lease includes Lease Costs, such costs shall be prorated between
Seller and Purchaser based upon a fraction, the numerator of which
is the base, minimum or fixed rent payable under the applicable
Lease prior to the Closing Date, and the denominator of which is the
total amount of base, minimum or fixed rent payable under such lease
during the initial term thereof. To the extent Seller has paid any
such Lease Costs, it shall receive an appropriate proration credit,
to the extent herein provided. To the extent any such costs are to
be incurred or are payable after the Closing Date, Purchaser shall
pay the same when due and receive an appropriate proration credit,
to the extent herein provided.
(ii) Seller expressly reserves the right to enter into any
renewal of an existing Lease to the extent that (x) the renewal is
pursuant to the exercise of a renewal option contained in the Lease,
(ii) the renewal is for a term of twelve (12) or fewer months, or
(z) the base, minimum or fixed rent (or Base Percentage Rent, if
applicable) is either equal to or greater than the greater of (A)
the fair market rental for such premises or (B) the fixed, minimum
or base rent (or Base Percentage Rent, if applicable) currently
payable under the applicable Lease; provided that Seller shall,
within five (5) days after execution of such renewal, deliver a copy
thereof to Purchaser. To the extent that any proposed renewal does
not meet any one of the conditions contained in the preceding
sentence, or if Seller desires to enter into any other amendment of
an existing Lease, Seller shall submit to Purchaser a deal sheet
describing the terms of such renewal or other amendment. Such
description shall include all applicable Lease Costs. Purchaser
shall thereafter have five (5) business days after receipt of such
information in each case to provide its written approval or
disapproval thereof (which approval shall not be unreasonably
withheld). Purchaser shall be deemed to have consented to any such
proposed renewal or other amendment if it fails to respond to
Seller's request for such consent within five (5) business days
after such request and receipt of the aforedescribed Lease
information. If Purchaser approves such renewal or other amendment,
then Seller shall have the right to enter into a renewal or other
amendment on materially the same terms and conditions as set forth
in the deal
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sheet previously furnished to Purchaser. In the event any such
proposed renewal or other amendment includes Lease Costs which are
payable by the landlord thereunder, such costs shall be prorated
between Seller and Purchaser in the same manner that they are
prorated pursuant to the provisions of subsection (i) above.
(iii) Seller expressly reserves the right to terminate any
Lease if the Tenant thereunder is in default in the payment of rent
or in any other material respect; provided, that Seller shall,
within five (5) days after such termination, deliver a copy thereof
to Purchaser.
(d) FURTHER ENCUMBRANCE. Seller shall not sell, assign, or convey
any right, title or interest whatsoever in or to the Real Property, or
create or permit to attach any lien, security interest, easement,
encumbrance, charge, or condition affecting the Real Property (other than
the Permitted Exceptions, liens that will be insured over by the Title
Insurer pursuant to Article 5 above, contracts for work which will be paid
for prior to or at Closing or for which an appropriate proration credit
will be given to Purchaser as herein provided and contracts for Lease
Costs under Leases approved or deemed approved pursuant to Section
10.1(c)).
(e) SERVICE CONTRACTS. Seller shall not, without Purchaser's written
approval (which approval shall not be unreasonably withheld), (a) amend or
waive any right under any Contract, or (b) enter into any service,
operating or maintenance agreement affecting the Real Property that would
survive the Closing, except for Contracts for Lease Costs.
(f) SALES OF OUTLET PARCELS. Seller expressly reserves the right to
continue to sell any of the outlot parcels comprising the Real Property.
If Seller desires to enter into any contract to sell any such outlot (an
"Outlot Contract"), Seller shall submit to Purchaser a deal sheet
describing the terms of any proposed sale, including a description of
estimated third-party closing costs, such as brokerage commissions, as
well as the form of contract which Seller proposes to use. Purchaser shall
thereafter have five (5) business days after receipt of such information
in each case to provide its written approval or disapproval thereof (which
approval shall not be unreasonably withheld). Purchaser shall be deemed to
have consented to any such proposed sale if it fails to respond to
Seller's request for such consent within five (5) business days after such
request and receipt of the aforedescribed information. If Purchaser
approves such sale proposal, then Seller shall have the right to enter
into an Outlot Contract on materially the same terms and conditions as set
forth in the deal sheet previously furnished to Purchaser. In the event
the closing under any Outlot Contract occurs prior to Closing, the
applicable outlot parcel shall be excluded from the Real Property and the
Purchase Price shall be reduced by the net proceeds realized by Seller as
a result of such sale (after deduction of all closing costs and proration
credits to the purchaser thereunder). Purchaser shall assume all
post-closing obligations of Seller under any such Outlot Contract. If the
closing under any Outlot Contract does not occur prior to Closing, Seller
shall assign the Outlot Contract to Purchaser at Closing and Purchaser
shall assume all obligations of Seller thereunder.
(g) INFORMATION REGARDING TAX APPEALS. Promptly following receipt by
Seller, Seller will provide Purchaser with copies of any correspondence,
notices or other information received by Seller from any taxing authority
or Seller's counsel concerning the assessment or reassessment of any
portion of the Real Property or Seller's actions seeking a reduction
thereof.
(h) ON-SITE EMPLOYEES. Purchaser shall have the right to interview
Seller's on-site employees at the Real Property. If Purchaser desires to
hire any such employees at the time of Closing, it will so notify Seller
not less than fourteen (14) days prior to the Closing Date. Seller shall
comply with all applicable laws relating to the termination of its on-site
employees.
ARTICLE 11
GROUND LEASE
11.1 GROUND LEASE. The transaction contemplated by this Agreement is
contingent upon Seller obtaining written consent from the Ground Lessor (the
"Xxxxxxxx Owner Consent") to Seller's assignment to Purchaser
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of Seller's interest, as landlord, under the Ground Lease, including (if
required under the Ground Lease) the Xxxxxxxx Owner's acknowledgment that Seller
shall be released of all obligations and liabilities of the "tenant" under the
Ground Lease effective from and after the date of such assignment. In addition,
Seller shall obtain from Ground Lessor a form of estoppel confirming the terms
of the Ground Lease and acknowledging that neither Ground Lessor or Seller are
in default thereunder (the "Ground Lease Estoppel"). Seller hereby covenants
that it shall use best efforts to obtain the Xxxxxxxx Owner Consent and the
Ground Lease Estoppel, provided that Seller shall not be required to make any
payment to the Ground Lessor as a condition to obtaining the Xxxxxxxx Owner
Consent and the Ground Lease Estoppel other than normal review expenses. If
Seller does not obtain the Xxxxxxxx Owner Consent and the Ground Lease Estoppel
on or before the Due Diligence Approval Date, then this Agreement shall
terminate, whereupon the Deposit, together with the net interest earned thereon,
shall, without any further instruction required, promptly be returned to
Purchaser, this Agreement shall become null and void and neither party shall
have any further rights or obligations hereunder (subject, however, to survival
of Purchaser's Indemnity and Purchaser's Confidentiality Obligations). If Seller
obtains the Xxxxxxxx Owner Consent and the Ground Lease Estoppel on or before
the Due Diligence Approval Date, Seller shall deliver a copy of same to
Purchaser and the parties shall proceed to close the transaction contemplated
hereby pursuant to the terms hereof and, at Closing, Seller and Purchaser shall
enter into the Assignment and Assumption of Ground Lease. A copy of the Xxxxxxxx
Owner Consent and the Ground Lease Estoppel shall, if obtained, be delivered to
Purchaser within two (2) days after Seller's receipt, but in no event later than
the Due Diligence Approval Date. Such Xxxxxxxx Owner Consent shall be either
unconditional or, if conditional, subject to no condition that is reasonably
objectionable to Purchaser and the Ground Lease Estoppel shall contain no
material deviations from the terms of the Ground Lease provided to Purchaser. In
the event that Seller receives the Xxxxxxxx Owner Consent, but such consent does
not contain an acknowledgment that Seller is released of all obligations and
liabilities of the "tenant" under the Ground Lease, such consent shall
nevertheless be satisfactory if Purchaser agrees to indemnify and hold Seller
harmless from Purchaser's failure to perform such obligations and liabilities
arising from and after the Closing.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES; AS-IS
12.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Without otherwise limiting
the general application of Section 12.3 hereinbelow, and subject to the terms of
Section 12.2 hereinbelow, Seller represents and warrants to Purchaser that, as
of the date hereof:
(a) COMPLIANCE. Except to the extent set forth in Exhibit E attached
hereto, Seller has received no written notice from any governmental body
that the Property currently violates any applicable governmental
requirements in respect to the use, occupation or construction thereof,
that have not be heretofore cured to the satisfaction of the issuer of the
notice.
(b) LITIGATION. Except to the extent set forth in Exhibit F attached
hereto, to Seller's actual knowledge, there is no action, suit, proceeding
or investigation pending or threatened, before any governmental agency,
court or other governmental authority which relates to the Property or the
use thereof and which would be binding upon Purchaser after Closing or
otherwise impact or affect the Property.
(c) ORGANIZATIONAL/AUTHORITY. Seller is a limited partnership duly
formed, validly existing and in good standing under the laws of Delaware.
Subject to Seller receiving approval of its Board of Directors pursuant to
Section 13.3 below, Seller has the requisite authority to enter into and
perform this Agreement. Subject to Seller receiving approval of its Board
of Directors pursuant to Section 13.3 below, the execution, delivery and
performance of this Agreement by Seller has been duly and validly
authorized by all necessary action of Seller. Subject to Seller receiving
approval of its Board of Directors pursuant to Section 13.3 below, this
Agreement has been duly executed and delivered by Seller or an authorized
representative of Seller and sets forth the legal, valid and binding
obligations of Seller which, subject to bankruptcy laws, statutory rights,
general principles of equity and other similar legal principles, are
enforceable against Seller in accordance with the terms hereof.
(d) NO BREACH. None of the execution, delivery or performance of
this Agreement by Seller does or will, with or without the giving of
notice, lapse of time or both, violate, conflict with or constitute a
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default under any term or condition of (i) subject to Seller receiving
approval of its Board of Directors pursuant to Section 13.3 below, the
organizational documents of Seller; (ii) any agreement to which Seller is
a party or by which Seller is bound; or (iii) subject to Seller receiving
approval of its Board of Directors pursuant to Section 13.3 below, any
terms or provisions of any judgment, decree, order, statute, injunction,
rule or regulation of a governmental unit applicable to Seller.
(e) LEASE DOCUMENTS. Attached hereto as Exhibit G and G1,
respectively, are (i) a complete and accurate list of the Leases,
occupancy agreements and amendments thereto relating to the Real Property
as of the date of this Agreement, which list shall be updated by Seller
prior to Closing, if necessary, including the addition thereto of any
Leases or amendments thereto executed after the date of this Agreement
through the Closing Date, and (ii) a true, correct and complete copy of
the current rent roll prepared by Seller in the ordinary course of its
business, provided that Seller makes no representation or warranty as to
the accuracy of any of the information contained therein. Seller has or
will deliver to Purchaser true, accurate and complete copies of all of the
Leases. There are no options or rights to renew, extend or terminate the
Leases or expand any leased premises, except as shown in the Leases. No
brokerage commission or similar fee is due or unpaid by Seller with
respect to any Lease, except as disclosed in Exhibit D attached hereto,
and there are no written or oral agreements that will obligate Purchaser,
as Seller's assignee, to pay any such commission or fee under any Lease or
extension, expansion or renewal thereof (except for any as to which a
credit will be given to Purchaser at Closing). Except as disclosed in
Exhibit D attached hereto, Seller has received no written notices from any
tenant asserting that any of the Leases or any guaranties thereof are not
in full force and effect, asserting that any defenses, setoffs or
counterclaims for the benefit of the tenants exist or asserting that any
material default exists by Seller under any Lease. To Seller's actual
knowledge, except as may be asserted in a notice described in Exhibit D
attached hereto, Seller is not in material default in any of the material
obligations of the landlord under any Lease. To Seller's actual knowledge,
no tenant under any Lease is in monetary default (in excess of thirty (30)
days) under any Lease, except as shown in the reports delivered to
Purchaser pursuant to Section 10.1(b)(xii) above. Seller has no obligation
to any tenant under the Leases to further improve such Tenant's premises
or to grant or allow any rent or other concessions, except as set forth in
the Leases. No rent or other payments have been collected in advance for
more than one (1) month and no rents or other deposits are held by Seller,
except the security deposits described on the Rent Roll, rent for the
current month and any prepaid rent for which Purchaser will be given a
credit at Closing.
(f) SERVICE CONTRACTS. Attached hereto as Exhibit H is a complete
and accurate list of all Contracts, equipment leases and other similar
agreements relating to the Real Property as of the date of this Agreement
(excluding any contracts, leases or similar agreements covering any
properties in addition to the Real Property), which shall be updated by
Seller prior to Closing, if necessary, including the addition thereto of
any such contracts, leases and similar agreements executed after the date
of this Agreement through the Closing Date.
(g) GROUND LEASE. Seller has not transferred, assigned, conveyed or
encumbered the Leasehold Estate, other than as shown in the Permitted
Title Exceptions and other than the mortgage lien granted by Seller which
will be paid and released at Closing. Seller has not received any written
notice from Ground Lessor asserting the existence of any default by Seller
under the Ground Lease. To Seller's actual knowledge, neither Seller nor
Ground Lessor is in default in any of its respective material obligations
under the Ground Lease.
(h) EMPLOYEES. Purchaser shall have no obligation to employ or
continue to employ any individual employed by Seller or its affiliates in
connection with the Real Property; provided, however, that Purchaser may,
at its option, elect to hire certain individuals located on site at the
Real Property in which event Seller will reasonably cooperate with
Purchaser in any such efforts to obtain such individuals as employees.
(i) ZONING. Seller has not received any written notice alleging any
violations of any zoning laws, subdivision laws or other local ordinances
covering the Real Property. To Seller's actual knowledge, there is no
pending rezoning proceeding covering the Real Property.
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(j) CONDEMNATION. To Seller's actual knowledge, there is no pending
or threatened condemnation, expropriation, eminent domain or similar
proceeding affecting all or any portion of the Real Property.
(k) ASSESSED VALUE; SPECIAL ASSESSMENTS. To Seller's actual
knowledge, there is no proposed increase in the assessed value of all or
any portion of the Real Property other than the customarily scheduled
increases in the state, county and/or city where the Real Property is
located and as otherwise may have been disclosed to Purchaser.
(l) PERSONAL PROPERTY. Seller has not granted any chattel mortgages,
security agreements or financing statements or other liens or security
interests of any kind covering the Personal Property, except for the
Permitted Title Exceptions and encumbrances granted by Seller which will
be paid and released at the time of Closing. Seller has not acquired any
such Personal Property pursuant to any conditional xxxx of sale.
(m) OPERATING STATEMENTS. The operating statements furnished to
Purchaser in connection with or pursuant to this Agreement were prepared
in the ordinary course of Seller's business.
(n) ACCESS. Seller has not received written notice of any pending or
threatened action which would impair access from the Real Property to any
public road.
(o) BANKRUPTCY. Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Seller's creditors,
(iii) suffered the appointment of a receiver to take possession of all or
substantially all of Seller's assets, (iv) suffered the attachment or
other judicial seizure of all, or substantially all, of Seller's assets,
(v) admitted in writing its inability to pay its debts as they come due,
or (vi) made an offer of settlement, extension or composition to its
creditors generally.
(p) RECAPTURE AGREEMENTS. Seller has not received any written notice
that either the Land or the Xxxxxxxx Land is subject to any so-called
"recapture agreement" involving refund for sewer extension, oversizing
utility, lighting or like expense or charge for work or services done upon
or relating to the Real Property.
(q) ENVIRONMENTAL. To Seller's actual knowledge, the Real Property
does not contain, and there is not located on or about the Real Property,
any Hazardous Materials, except to the extent disclosed to Purchaser with
respect to the Leasehold Estate and the Xxxxxxxx Fee Land, except as
disclosed in the environmental reports previously furnished by Seller to
Purchaser, except for prepackaged cleaning materials, personal grooming
items or other items which are sold for consumer use or typically used in
the operation, maintenance and repair of the Real Property and except for
oil and other petroleum products which are in proper and safe containers
or are present in quantities less than an amount which would require
reporting or cleanup obligations under Environmental Laws (the foregoing
specific items being hereinafter referred to as the "Hazardous Materials
Exception"). To Seller's actual knowledge, no part of the Real Property is
currently used by Seller for the use, storage, treatment, production,
manufacture, generation, transportation, release or disposal of Hazardous
Materials, except to the extent included in the Hazardous Materials
Exception. Seller has not received any written complaint, order, summons,
citation, notice of violation, directive letter or other communication
from any governmental authority or other person with regard to air
emissions, water discharges, noise emissions or Hazardous Materials, or
any other environmental, health or safety matters affecting the Real
Property, or any portion thereof, except with respect to the Leasehold
Estate and the Xxxxxxxx Fee Land. To Seller's actual knowledge, there are
no underground storage tanks located on the Real Property and Seller has
not removed, or caused to be removed, any underground storage tanks from
the Real Property, except to the extent disclosed in the Hazardous
Materials Exception. For purposes hereof, "Environmental Law" shall mean
any federal, state or local law, ordinance, regulation, code, order or
decree (including consent decrees and administrative orders) in effect on
the date of this Agreement which regulates the use, generation, handling,
storage, treatment, transportation, decontamination, clean-up, removal,
encapsulation, enclosure, abatement or disposal of any Hazardous
Materials, including the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.,
the Toxic Substance Contract Act, 15 U.S.C. Sections 1251, et seq., their
state analogs, and any other federal, state or local statute, law,
ordinance, resolution, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of
21
conduct concerning any Hazardous Materials, all as amended to date. For
purposes hereof, "Hazardous Materials" shall mean flammable, explosive,
radioactive or reactive materials, any asbestos (whether friable or
non-friable), any pollutants, contaminants or other hazardous, dangerous
or toxic chemicals, materials or substances, any petroleum products or
substances or compounds containing petroleum products, including gasoline,
diesel fuel and oil, any polychlorinated biphenyls, or substance or
compounds containing polychlorinated biphenyls, to the extent any of the
above materials or substances or any other material or substance is
defined as a "hazardous substance", "hazardous waste", "toxic materials",
"contamination", and/or "pollution" within the meaning of any
Environmental Law.
Subject to the terms of Section 12.2 below, all of the representations and
warranties set forth in this Section 12.1 shall be deemed to have been remade
again on and as of the Closing Date, and shall survive for a period of six (6)
months after such Closing Date. Notwithstanding the foregoing, in the event that
Purchaser discovers any matters during the course of its due diligence
inspections and investigations which give rise to knowledge that any of the
foregoing representations and warranties are untrue or inaccurate in any
respect, and if Purchaser nevertheless closes on the transaction contemplated
hereby on the Closing Date, then Purchaser shall be deemed to have waived such
representation and warranty, and shall have no further claim against Seller on
account thereof. For purposes of this Section 12.1, the term "Seller's actual
knowledge" or words of similar import shall mean the actual knowledge of
"Seller's Executive Personnel", as hereinafter defined, without any further
investigation or due diligence required of such Seller's Executive Personnel.
Further, to the extent any representations and warranties in this Section 12.1
relate to "notices" being received (or not being received) by Seller, the term
"Seller", as used in such representations and warranties, shall be deemed to
refer to "Seller's Executive Personnel". For purposes of the foregoing, the term
"Seller's Executive Personnel" shall mean the following individuals: Xxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxx Xxxxxx Any claim by Purchaser
against Seller based upon a breach of any warranty or representation contained
in this Section 12.1 shall be deemed waived unless Purchaser (i) delivers to
Seller written notice of such claim prior to the date which is six (6) months
after the Closing Date, and (ii) files suit within two (2) months after delivery
to Seller of any such notice of claim.
12.2 CHANGES. If any facts or circumstances change after the date of this
Agreement, and if, due to such changes in facts or circumstances, a material
representation or warranty of Seller that was true and accurate on the date
hereof, shall become untrue or inaccurate in any material respect if subsequent
to the Due Diligence Approval Date:
(a) Seller or Purchaser, as the case may be, shall promptly give
written notice to the other party of any such change in the truth or
accuracy of such representation or warranty (the "Change") to which such
party has actual knowledge;
(b) Unless such Change is the direct result of an intentional and
material act or omission of Seller which is in violation of any covenant
of Seller contained herein, such Change shall not constitute a default of
Seller under this Agreement, or a breach of Seller's representations or
warranties contained herein; and
(c) Unless Seller cures such Change within ten (10) days after
receipt or delivery of the notice described in subsection (i) above, or
notifies Purchaser within such ten (10) day period that it is willing to
give Purchaser a credit against the Purchase Price in an amount equal to
Purchaser's reasonable estimate of the cost necessary to cure such Change,
Purchaser shall have the right, as its sole remedy, to terminate this
Agreement, based upon the Change, by giving written notice of such
termination to Seller on or before the later of (a) five (5) days after
the expiration of the cure period provided for herein, or (b) the Due
Diligence Approval Date (time being of the essence), with the Closing Date
being extended, if necessary, to the end of said period; provided,
however, that (i) if such Change is the direct result of an intentional
and material act or omission of Seller which is in violation of any
covenant of Seller contained herein, Purchaser shall have all other rights
available to Purchaser under this Agreement arising out of a Seller
Default (as hereinafter defined), and (ii) Seller shall be obligated to
cure any Change which was caused by Seller or which is subject to monetary
cure for a cost not to exceed $50,000.00. If Purchaser terminates this
Agreement under this Section 12.2, this Agreement shall terminate,
whereupon the Deposit, together with the net interest earned thereon,
shall promptly be returned to Purchaser, this Agreement shall become null
and void and neither party shall have any further rights or obligations
hereunder (subject, however, to survival of Purchaser's Indemnity and
Purchaser's Confidentiality Obligations). In the event Purchaser does not
terminate this Agreement on account of such Change, then Seller shall not
be obligated to update the representation and warranty which is
22
the subject of said Change on and as of the Closing Date, notwithstanding
anything contained in Section 12.1 above to the contrary, and Purchaser
shall be deemed to have waived such representation or warranty and shall
have no claim against Seller on account thereof.
12.3 PURCHASE AS IS. IT IS ACKNOWLEDGED THAT PURCHASER HAS HAD OR SHALL
HEREAFTER HAVE AMPLE OPPORTUNITY TO INVESTIGATE ALL ASPECTS OF THE PROPERTY AND
TO OBTAIN KNOWLEDGE OF ALL ATTRIBUTES CONCERNING SUCH PROPERTY. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 12.1 ABOVE, AND ANY REPRESENTATIONS OR
WARRANTIES CALLED FOR IN THE DEED, XXXX OF SALE AND THE ASSIGNMENT AND
ASSUMPTION AGREEMENTS CALLED FOR BY THIS AGREEMENT, THE PROPERTY SHALL BE
CONVEYED TO PURCHASER ON AN "AS-IS, WHERE-IS" BASIS WITHOUT ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EITHER ORAL OR WRITTEN, MADE BY
SELLER OR ANY AGENT OR REPRESENTATIVE OF SELLER WITH RESPECT TO THE PROPERTY,
CONCERNING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, STRUCTURAL INTEGRITY, 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 MAY CONDUCT
THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (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) THE
PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, UNDER, OR ADJACENT TO THE
PROPERTY OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; OR (I)
ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES
THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN
SECTION 12.1 OF THIS AGREEMENT, AND ANY REPRESENTATIONS OR WARRANTIES CALLED FOR
IN THE DEED, XXXX OF SALE AND THE ASSIGNMENT AND ASSUMPTION AGREEMENTS CALLED
FOR BY THIS AGREEMENT, ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT
OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN SECTION 12.1
OF THIS AGREEMENT, AND ANY REPRESENTATIONS OR WARRANTIES CALLED FOR IN THE DEED,
XXXX OF SALE AND THE ASSIGNMENT AND ASSUMPTION AGREEMENTS CALLED FOR BY THIS
AGREEMENT. PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT (A) PURCHASER IS NOT
IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION; (B) PURCHASER IS REPRESENTED
BY LEGAL COUNSEL IN CONNECTION WITH THE SALE CONTEMPLATED BY THIS AGREEMENT; (C)
PURCHASER IS SOPHISTICATED, KNOWLEDGEABLE AND EXPERIENCED IN THE PURCHASE,
OWNERSHIP AND SALE OF COMMERCIAL REAL ESTATE AND IS FULLY ABLE TO EVALUATE THE
MERITS AND RISKS OF THIS TRANSACTION; AND (D) PURCHASER HAS CONDUCTED (OR WILL
HEREAFTER CONDUCT) OR HAD THE OPPORTUNITY TO CONDUCT (OR WILL HEREAFTER HAVE THE
OPPORTUNITY TO CONDUCT) ITS OWN INSPECTION AND INVESTIGATION OF THE PROPERTY.
SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY.
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ARTICLE 13
CONDITIONS PRECEDENT AND TERMINATION
13.1 GENERAL FEASIBILITY. The obligation of Purchaser to close the
transaction contemplated hereby is subject to Purchaser's review and approval,
at its sole cost and expense, on or before the Due Diligence Approval Date, of
the Development Materials and of the results of the Inspections. If, for any
reason, Purchaser, in its sole good faith discretion, is not satisfied with any
of the foregoing, then Purchaser may, at its option at any time on or before the
Due Diligence Approval Date, elect (by specific written notice terminating this
Agreement or by failing to deliver written notice electing to proceed to
Closing) to terminate this Agreement, in which event the Deposit, together with
all net interest earned thereon, shall, without any further instruction
required, promptly be returned to Purchaser, this Agreement shall become null
and void and neither party shall have any further rights and obligations
hereunder (subject, however, to survival of Purchaser's Indemnity and
Purchaser's Confidentiality Obligations). Purchaser's failure to give Seller
notice that Purchaser has elected to proceed to Closing on or before the Due
Diligence Approval Date shall be deemed to be Purchaser's election to terminate
this Agreement. In the event Purchaser provides Seller with notice electing to
proceed to Closing, the parties shall thereafter proceed to close the
transaction contemplated by this Agreement as otherwise provided herein.
13.2 TENANT ESTOPPELS. The obligation of Purchaser to close the
transaction contemplated hereby is, at Purchaser's option, subject to Seller's
delivery to Purchaser of estoppel certificates addressed to Seller, Purchaser
and Purchaser's lender (in the form or forms provided to Seller by Purchaser no
later than the Due Diligence Approval Date or if no such form is provided, then
in the form attached hereto as Exhibit I, with such changes thereto as are
reasonably acceptable to Purchaser) dated no more than forty-five (45) days
prior to the Closing Date, from all the Major Tenants (as herein defined) and
from tenants (including the Major Tenants) occupying not less than 85% of the
currently leased square footage of each Building and not less than 85% of the
currently leased square footage of the Xxxxxxxx Building including, in all
cases, the square footage occupied by the Major Tenants; provided, however, that
notwithstanding the foregoing, if a Lease contains a form of estoppel as an
attachment thereto or specifically states the matters as to which the tenant is
obligated to deliver an estoppel, the form of required estoppel for such tenant
shall comply with such attached form or applicable provisions of the Lease.
Seller agrees to use reasonable efforts to obtain the foregoing estoppel
certificates, provided that Seller shall not be required to make any payment to
any tenant as a condition to obtaining an estoppel certificate therefrom. If
Purchaser receives any estoppel certificate which contains changes thereto or
which reflects information contrary to the applicable Lease, such estoppels
shall be deemed to be reasonably acceptable to Purchaser unless Purchaser
notifies Seller in writing within five (5) days after its receipt of any such
estoppel certificate that such changes are unacceptable. If Purchaser has not
received the requisite tenant estoppel certificates described above on or before
five (5) days prior to the Closing Date, then Purchaser may, at its option, and
as its sole and exclusive remedies hereunder, upon giving Seller written notice
thereof on or before two (2) days prior to the Closing Date, elect to (i)
require Seller to deliver estoppel certificates from, and executed by, Seller in
lieu of the requisite tenant estoppels, provided that such estoppel certificates
shall be subject to the same survival periods and limitations on liability
contained in Section 15.1 below and shall terminate if following the Closing,
Seller delivers to Purchaser an estoppel certificate executed by the applicable
tenant, or (ii) terminate this Agreement, in which event the Deposit, together
with all net interest earned thereon, shall promptly be returned to Purchaser,
this Agreement shall become null and void, and neither party shall have any
further rights and obligations hereunder (subject, however, to survival of
Purchaser's Indemnity and Purchaser's Confidentiality Obligations), subject to
Seller's right to nullify such termination as hereinafter provided; provided,
however, that in the event that the contrary information reflected in any tenant
estoppel constitutes a breach of Seller's representations and warranties,
Purchaser shall not be deemed to waive any rights otherwise and to the extent
available to Purchaser under this Agreement arising out of such breach.
Purchaser's failure to give Seller such notice on or before two (2) days prior
to the Closing Date shall be deemed to be Purchaser's waiver of the conditions
precedent set forth in this Section 13.2, and the parties shall thereafter
proceed to close the transaction contemplated by this Agreement as otherwise
provided herein. Notwithstanding anything contained in this Section 13.2 to the
contrary, if Seller has delivered to Purchaser estoppel certificates complying
with the requirements of this Section 13.2 from all the Major Tenants and from
tenants (including the Major Tenants) occupying not less than seventy-five (75%)
percent of the currently leased square footage of each Building and not less
than seventy-five (75%) percent of the currently lease square footage of the
Xxxxxxxx Building, including, in all cases, the square footage occupied by the
Major Tenants, Seller, at its option, to be exercised within one (1) business
day after receipt of any election by Purchaser to terminate this Agreement as
provided in (ii) above, shall be entitled to deliver estoppel certificates from,
and executed by, Seller in lieu of such additional requisite tenant estoppels,
subject to all of the provisions regarding such estoppel certificates as
provided in
24
(i) above, whereupon Purchaser's termination of this Agreement shall be
nullified and the parties shall thereafter proceed to close the transaction
contemplated by this Agreement as otherwise provided herein. For purposes
hereof, Major Tenants shall be those tenants set forth and described in the list
attached hereto as Exhibit K. Seller further also agrees to use reasonable
efforts to deliver and undertake the execution and return by tenants of any
proposed form of Subordination, Non-Disturbance and Attornment Agreements
proposed by Purchaser's lenders. Seller's delivery of such forms shall not,
however, be a condition to Purchaser's obligation to close.
13.3 APPROVAL BY BOARD OF DIRECTORS OF SELLER. The obligations of Seller
under this Agreement are contingent upon Seller obtaining approval of this
transaction from its Board of Directors. Not later than the fifth (5th) business
day after the Effective Date, Seller shall deliver written notice to Purchaser
of such approval or disapproval. If no such notice is delivered, then Seller
shall be deemed to have delivered a notice of disapproval. In the event of
disapproval or deemed disapproval, Seller shall not be in default hereunder and
shall have no liability as a result thereof, this Agreement shall terminate, the
Deposit, together with all interest earned thereon, shall promptly be returned
to Purchaser and neither party shall have any further rights and obligations
hereunder (subject, however, to survival of Purchaser's Indemnity and
Purchaser's Confidentiality Obligations).
13.4 REPRESENTATIONS AND WARRANTIES BEING TRUE; COVENANTS BEING
PERFORMED; MATERIAL CHANGES IN FINANCIAL CONDITIONS.
(a) The obligations of Purchaser under this Agreement are, subject
to the terms of Section 9.1, Section 9.2, and Section 12.2, contingent
upon; (i) the representations and warranties of Seller set forth in
Article 12.1 being true and correct at Closing in all material respects;
and (ii) Seller having performed all of its pre-Closing covenants in
accordance with the terms of this Agreement.
(b) In the event an unexpected material change to the financial
condition of the Real Property occurs following the Due Diligence Approval
Date through the Closing Date (which shall be deemed for purposes of this
Section 13.4(b) to be the Closing Date prior to any extension thereof
pursuant to Section 14.1 below), Purchaser shall nonetheless be required
to perform its obligations hereunder as otherwise provided herein. For
purposes of this Section 13.4(b), an "unexpected material change to the
Real Property" shall be deemed to have occurred if following the Due
Diligence Approval Date and prior to the Closing Date, tenants who in the
aggregate are required to make payment under their Leases during the
twelve (12) month period following the Closing Date of an amount of annual
rent in excess of three percent (3%) of the aggregate annual rental
payable by all tenants of the Real Property during such twelve (12) month
period following the Closing Date commence voluntary bankruptcy
proceedings under the United States Bankruptcy Code, as amended, or have
had involuntary proceedings filed against them, and prior to the Closing
Date, such proceedings have not been dismissed, any applicable tenant has
not affirmed its Lease in the bankruptcy proceeding and the space leased
by such tenant has not been re-leased by Seller in accordance with Section
10.1(c) above (collectively, "Bankrupt Tenants"). If an unexpected
material change to the Real Property occurs, at Closing, a portion of the
Purchase Price equal to one hundred twenty-five percent (125%) of the Net
Lost Rent (as hereinafter defined), shall be deposited by Purchaser with
Escrowee (rather than being paid to Seller at Closing), and subject to the
terms hereof, held by Escrowee in one or more interest-bearing accounts
reasonably acceptable to Seller and Purchaser, with all interest accruing
thereon for the benefit of Seller, until the thirteen month anniversary of
the first day of the first month following the Closing Date. For purposes
of this Section 13.4, "Net Lost Rent" shall mean (a) the annual rental
otherwise payable by the Bankrupt Tenants pursuant to their Leases for the
twelve (12) month period following the Closing Date ("Expected Rents")
which, as a result of the referenced bankruptcy, are subject to
nonpayment, minus (b) three percent (3%) of the aggregate annual rental
income payable by all tenants of the Real Property during such twelve (12)
month period following the Closing Date. From and after the Closing Date,
Purchaser shall be entitled, by written notice to Escrowee and Seller, to
receive, on a monthly basis, commencing during the second full calendar
month following the Closing Date, the difference between the Expected
Rents due to Purchaser in the immediately preceding month and the actual
rents collected in such month by Purchaser as a result of the re-lease of
the premises occupied (or previously occupied by) the Bankrupt Tenants or
directly from any Bankrupt Tenants (including any past due sums received
upon the reaffirmation of a Lease by a Bankrupt Tenant). Any balance
remaining in the escrow at the conclusion of the thirteen (13) month
period described above, together with accrued interest thereon, shall be
remitted by Escrowee to Seller, without any further notice or direction.
Purchaser shall have the right to make a collateral assignment of its
rights in any such escrow accounts to any of its lenders holding a
mortgage on any portion of the Real Property that contains premises leased
to a Bankrupt Tenant.
25
ARTICLE 14
CLOSING
14.1 TIME AND PLACE. The transaction contemplated hereby shall close on
the Closing Date through a New York Style escrow managed by the Escrowee or on
such other date, time, place or in such other manner as the parties may mutually
agree. The parties do not intend for there to be a live closing attended by
Seller and Purchaser representatives. Notwithstanding the foregoing, Purchaser
shall have the right, by delivery of written notice not later than ten (10) days
prior to the Closing Date containing its certification that it is prepared to
close the transactions contemplated by this Agreement, except for delays caused
by its lenders, to extend the Closing Date for a maximum of fifteen (15) days,
provided that concurrently with such notice to Seller, Purchaser shall deposit
the sum of Five Hundred Thousand and 00/100 Dollars ($500,000.00) with Escrowee,
which amount shall become part of the Deposit for all purposes under this
Agreement.
14.2 SELLER'S DELIVERIES. On or before the Closing Date, Seller shall
deliver or cause to be delivered to Purchaser or to Escrowee the following
closing documents and other items, each of which shall be executed, if
applicable and in form and substance reasonably acceptable to counsel for
Purchaser:
(a) the Deed;
(b) the Assignment and Assumption of Ground Lease; which document
shall contain Seller's indemnification of Purchaser from and against all
obligations of Seller thereunder arising or accruing prior to the Closing
Date (excepting therefrom any obligations for which Purchaser receives a
proration credit at closing or for which Purchaser expressly assumes
liability pursuant to the terms hereof);
(c) (1) Seller's assignment of the Contracts, (2) Seller's
assignment of the Leases, (3) Seller's assignment of the Licenses, (4)
Seller's assignment of the Intangible Personal Property, and (5) Seller's
assignment of any Outlot Contracts all as provided in Sections 2.1(c),
2.1(d) and 10.1(f), which assignment documents shall contain Seller's
indemnification of Purchaser from and against all obligations of Seller
thereunder arising or accruing prior to the Closing Date (excepting
therefrom any obligations for which Purchaser receives a proration credit
at Closing or for which Purchaser expressly assumes liability pursuant to
the terms hereof);
(d) Seller's xxxx of sale as provided in Section 2.1(e);
(e) To the extent in the possession of, under the control of, or
reasonably accessible to, Seller or its managing agent, originals (where
available) or copies of the Ground Lease and all Contracts, Leases and
Licenses relative to the Real Property or Personal Property (or any
portion thereof);
(f) Letters to tenants under the Leases (in a form reasonably
acceptable to Purchaser) advising that the Property has been sold to
Purchaser (or as Purchaser may otherwise designate), directing payment of
rental in accordance with the directions of Purchaser, and directing
tenants to deliver to Purchaser within a reasonable period after the
Closing Date, endorsements of any insurance policies required under the
tenant's Lease, deleting the interests of Seller with regard to
occurrences thereafter arising and adding the interest of Purchaser as
landlord;
(g) All keys held by Seller to the Building and the Xxxxxxxx
Building;
(h) The Title Policy (or marked-up "New York Style" commitment);
(i) Any required state, county and municipal transfer declarations;
(j) An executed Affidavit in the form attached hereto as Exhibit J;
and
26
(k) An assignment of Seller's rights under that certain Consent
Agreement dated April 14, 1995 among the State of Nevada, acting by and
through its Department of Conservation and Natural Resources, Division of
Environmental Protection, Seller's predecessor in interest to the
Leasehold Estate and the Xxxxxxxx Fee Land, and others; and
(l) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by the Title
Insurer to fully effect and consummate the transactions contemplated
hereby.
14.3 PURCHASER'S DELIVERIES. On or before the Closing Date, Purchaser
shall deliver or cause to be delivered to Seller or to Escrowee the following
closing documents and other items, each of which shall be in form and substance
reasonably acceptable to counsel for Seller:
(a) The balance of the Purchase Price;
(b) Any required state, county and municipal transfer declarations;
(c) Purchaser's acceptance of the Assignment and Assumption of
Ground Lease and of the assignments described in Section 14.2(c) above and
Purchaser's assumption, in favor of Seller, of all obligations and
liabilities of Seller arising or accruing from and after the Closing Date
pursuant to or in connection with the Ground Lease, Contracts, Leases,
Licenses and Intangible Personal Property, and Purchaser's indemnification
of Seller and the other Indemnified Parties from and against any such
obligations and liabilities so assumed and all costs, expenses and claims
arising therefrom; and
(d) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by the Title
Insurer to fully effect and consummate the transactions contemplated
hereby.
14.4 CONCURRENT DELIVERIES. Seller and Purchaser shall jointly deposit in
the Escrow or deliver to each other at or before Closing an agreed proration
statement duly executed by the respective parties.
14.5 CONCURRENT TRANSACTIONS. All documents or other deliveries required
to be made by Purchaser or Seller at Closing, and all transactions required to
be consummated concurrently with Closing, shall be deemed to have been delivered
and to have been consummated simultaneously with all other transactions and all
other deliveries, and no transaction shall be deemed to have been consummated,
until all deliveries required by Purchaser and Seller shall have been made, and
all concurrent or other transactions shall have been consummated.
14.6 NEW YORK STYLE CLOSING. The transaction shall be closed by means of a
so-called New York Style Closing, with the concurrent delivery of the documents
of title, transfer of interests, delivery of the Title Policy or marked-up title
commitment described in Section 5.1 and the payment of the Purchase Price.
Seller and Purchaser shall each provide any undertaking to the Title Insurer
necessary to the New York Style Closing, including a "gap indemnity" to be
provided by Seller. Seller and Purchaser shall each pay 50% of the charges of
the Title Insurer for such New York Style Closing.
14.7 PURCHASER'S OBLIGATION TO CHANGE NAMES OF CERTAIN RETAIL CENTERS.
Following the Closing, Purchaser shall take all reasonable actions to change the
names of the retail centers comprising the Real Property in order to delete from
such names any reference to the name "Horizon", Purchaser shall provide Seller
with a status report of such actions at least monthly and will complete all such
actions, at Purchaser's expense, within one (1) year after Closing.
ARTICLE 15
DEFAULT
15.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES. If Seller is in material
default hereunder, including without limitation as a result of an intentional
and material breach as of the Effective Date of any material
27
representation and warranty made herein by Seller (herein referred to as a
"Seller Default") and fails to cure such default within ten (10) business days
after Purchaser delivers written notice of such default to Seller (which cure
period shall be extended for a period not exceeding an additional ten (10)
business days for any default other than (a) a default in failing to close on
the Closing Date as required hereunder, or (b) any other intentional or willful
default of Seller, provided that such extended cure period shall only apply so
long as Seller is diligently pursuing the cure of such default during said ten
(10) business day period), and such Seller Default occurs on or prior to Closing
and Purchaser has notice or is otherwise aware thereof on or prior to Closing,
then Purchaser shall have the right, as its sole and exclusive remedy, to
terminate this Agreement, whereupon Purchaser shall receive a return of the
Deposit, together with all net interest earned thereon, this Agreement shall be
null and void and neither party shall have any further rights or obligations
hereunder (subject, however, to survival of Purchaser's Indemnity and
Purchaser's Confidentiality Obligations), and provided that if Purchaser elects
to terminate the Agreement, Purchaser shall remain entitled to receive
liquidated damages in the amount of $1,000,000 (it being agreed that the damages
to be sustained by Purchaser as a result of a Seller Default are extremely
difficult and impractical to ascertain, and that such amount is a reasonable
estimate of such damages and is not a penalty), except if within six (6) months
after Purchaser notifies Seller that a Seller Default exists, Seller sells the
Property in its entirety to an unaffiliated third party, and a court of
competent jurisdiction adjudicates that a Seller Default did in fact occur under
this Agreement, Purchaser shall also be entitled to receive any net proceeds
realized by Seller from such sale in excess of the net proceeds which would have
been realized by Seller if the sale contemplated by this Agreement had been
consummated. In no event shall Purchaser be entitled to seek the remedy of
specific performance or record a lis pendens or notice of pendency of action
against all or any portion of the Property for any reason whatsoever and
Purchaser expressly waives and relinquishes any such rights. If a Seller Default
first occurs after Closing or Purchaser first receives notice or otherwise
becomes aware thereof after Closing, then Purchaser's sole recourse shall be to
xxx Seller for all provable damages of Purchaser caused by the Seller Default,
excluding consequential, speculative and punitive damages, and provided further
that the total amount of such damages to be collected by Purchaser as a result
of a Seller Default shall not exceed $1,000,000. Notwithstanding the foregoing,
Seller's re-proration obligations under Section 6.2 above, Seller's pre-Closing
indemnification obligations contained in the Assignment and Assumption
Agreements for the Ground Lease, Contracts, Licenses and Leases, and the losing
party's obligation to pay legal fees and costs in accordance with Section 17.10
shall not be subject to any of the limitations described in this Section 15.1.
Any claim by Purchaser against Seller based upon a Seller Default occurring
prior to Closing or as to which Purchaser receives notice or otherwise becomes
aware prior to Closing shall be deemed waived unless Purchaser (i) delivers to
Seller notice of such claim within three (3) months after the date on which the
Closing would have otherwise occurred, and (ii) files suit within two (2) months
after delivery to Seller of any notice of claim. Any claim by Purchaser against
Seller based upon a Seller Default occurring after Closing or as to which
Purchaser first receives notice or otherwise becomes aware after Closing shall
be deemed waived unless Purchaser (i) delivers to Seller written notice of such
claim prior to the date which is six (6) months after the Closing Date, and (ii)
files suit within two (2) months after delivery to Seller of any such notice of
claim.
15.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES. If Purchaser is in material
default hereunder (herein referred to as a "Purchaser Default") and fails to
cure such default within ten (10) business days after Seller delivers written
notice to Purchaser (which cure period shall be extended for a period not
exceeding an additional ten (10) business days for any default other than (A) a
default in failing to close on the Closing Date as required hereunder, or (b)
any other intentional or willful default of Purchaser, provided that such
extended cure period shall only apply so long as Purchaser is diligently
pursuing the cure of such default during said ten (10) business day period),
then: (i) if a Purchaser Default occurs on or prior to Closing and Seller has
notice or is otherwise aware thereof on or prior to Closing, then Seller shall
have the right to terminate this Agreement and receive the Deposit, together
with the net interest earned thereon, as Seller's sole and exclusive remedy
hereunder, this Agreement shall be null and void and neither party shall have
any further rights or obligations hereunder (subject, however, to survival of
Purchaser's Indemnity and Purchaser's Confidentiality Obligations); and (ii) if
a Purchaser Default first occurs after Closing or if Seller first receives
notice or otherwise becomes aware thereof after Closing, then Seller may xxx
Purchaser for all provable damages of Seller caused by the Purchaser Default,
excluding consequential, speculative and punitive damages, and provided further
that the total amount of such damages to be collected by Seller as a result of
Purchaser's Default shall not exceed $1,000,000. Notwithstanding the foregoing,
Purchaser's reproration obligations under Section 6.2 above, Purchaser's
indemnification obligations contained in the Assignment and Assumption of Ground
Lease, Purchaser's indemnity obligations described in Section 14.3(c) above,
Purchaser's Indemnity, Purchaser's Confidentiality Obligations and the losing
party's obligation to pay legal fees and costs in accordance with Section 17.10
shall not be subject to any of the limitations described in this Section 15.2.
Seller agrees that it will
28
deliver written notice of a Purchaser Default to Purchaser within a reasonable
time after Seller obtains actual knowledge of such Purchaser Default.
SELLER AND PURCHASER HAVE ACKNOWLEDGED THAT THEY HAVE READ AND
SPECIFICALLY NEGOTIATED THE FOREGOING PROVISIONS AND LIMITATIONS ON REMEDIES
AFTER CONSULTATION WITH LEGAL COUNSEL OF THEIR RESPECTIVE CHOICE.
ARTICLE 16
NOTICES
16.1 NOTICES. Any notice, demand or other communication which any party
may desire or may be required to give to any other party shall be in writing and
shall be deemed given (i) if and when personally delivered, (ii) on the first
(1st) business day after being sent by a nationally recognized overnight courier
addressed to a party at its address set forth below, (iii) on the day of
transmission, if transmitted on a business day via facsimile to a party at its
facsimile number set forth below and received in its entirety by such party
prior to 5:00 p.m. (Chicago time), with the original sent via overnight courier
as provided in (ii) above, or if not received in its entirety prior to such
time, on the following business day, and (iv) on the third (3rd) business day
after being deposited in United States registered or certified mail, postage
prepaid, addressed to a party at its address set forth below, or to such other
address as the party to receive such notice may have designated to all other
parties by notice in accordance herewith:
If to Seller, to: Horizon Group Properties, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
With copies to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Purchaser, to: Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
and
Attention: Xxxxxxx Xxx
Facsimile No.: (000) 000-0000
With copies to: Hirschler, Fleisher, Xxxxxxxx, Cox & Xxxxx
Federal Reserve Bank Building
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
29
ARTICLE 17
GENERAL
17.1 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement contains the
entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived, except by an instrument in writing signed by the
party to be bound thereby. The waiver of any term or provision of this Agreement
shall not constitute a waiver of any other term or provision of this Agreement,
nor shall the right to require any enforcement of any term or provision of this
Agreement be permanently waived, if a continuing breach of any such term or
provision arises.
17.2 FURTHER ASSURANCES. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and assurances and to
take all such further action before or after the closing as shall be reasonably
necessary to perform this Agreement and consummate and effect the transactions
contemplated hereby.
17.3 SURVIVAL AND BENEFIT. No representations or warranties of the parties
contained herein, if any, shall be merged into the Deed, but subject to the
limitations contained in Sections 12.1, 15.1 and 15.2 above, shall survive
Closing for a period of six (6) months, and the same shall inure to the benefit
of and be binding upon the respective successors and permitted assigns of the
parties.
17.4 INTERPRETATION.
(a) The headings and captions herein are inserted for convenient
reference only, and the same shall not limit or construe the paragraphs or
sections to which they apply or otherwise affect the interpretation
thereof.
(b) The terms "hereby", "hereof", "hereto", "herein", "hereunder"
and any similar terms shall refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean before,
the date of this Agreement.
(c) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders, and words importing the
singular number shall mean and include the plural number and vice versa.
(d) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), limited liability
companies, trusts, corporations and other legal entities, including public
bodies, as well as natural persons.
(e) The terms "include, "including" and similar terms shall be
construed as if followed by the phrase "without being limited to."
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
(g) Whenever under the terms of this Agreement the time for
performance of a covenant or condition falls upon a Saturday, Sunday or
holiday, such time for performance shall be extended to the next business
day. Otherwise, all references herein to "days" shall mean calendar days
(unless specifically provided to be "business" days).
(h) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Illinois.
(i) Time is of the essence of this Agreement.
(j) If any provision hereof or the application of any such provision
to any particular person or circumstance is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
30
validity or enforceability of any other provision hereof or the
application of such provision to different person(s) or circumstance(s),
as the case may be.
17.5 CONSENTS AND APPROVALS. Whenever consents or approvals are required
under the terms of this Agreement, said consents or approvals shall be in
writing.
17.6 CONFIDENTIALITY. Any and all information regarding the Property or
regarding Seller which is provided to Purchaser by Seller or by its agents, or
any other information obtained by Purchaser regarding the subject Property or
the Seller in the course of Purchaser's Inspections or other due diligence
investigations hereunder, in each case to the extent not generally available to
the public (herein, the "Confidential Materials"), shall be maintained by
Purchaser and each of Purchaser's Representatives (as defined in Section 10.1(a)
above) in strict confidence, to be used solely in connection with evaluating the
transaction contemplated hereby, and shall not be used in the purchase of stock
in Horizon Group Properties, Inc. and/or disclosed to third parties without the
prior written consent of Seller; provided, however, that Seller hereby consents
to the disclosure of such information to (a) any consultants, contractors,
attorneys, accountants or similarly situated persons assisting Purchaser in the
evaluation of the Property and (b) any lenders or investors (or potential
lenders or investors) with an interest in the Real Property, whether pursuant to
private placement memorandum, broker dealer network (in which event such consent
includes such broker dealer network) or otherwise. Purchaser acknowledges and
agrees that any breach or threatened breach of this confidentiality provision
would cause irreparable harm to Seller which may not be adequately remedied by
monetary damages and that, as a result, Seller may, in such event, in addition
to any other rights or remedies available hereunder or at law or in equity, seek
an injunction enjoining any disclosure of the Confidential Materials. This
obligation of confidentiality shall not apply to disclosures compelled by law,
any order of a court of competent jurisdiction or by a lawful, proper subpoena,
in which event Purchaser shall immediately notify Seller of the circumstances
purporting to require such disclosure and shall refrain from such disclosure for
the maximum period of time allowed by law so that Seller may take such actions
as it may deem appropriate to protect the Confidential Materials being sought.
Purchaser shall make all parties having access to the Confidential Materials
aware of their obligation of confidentiality described in this Section 17.6 and
shall bind such parties to similar obligations of confidentiality. The terms of
this Section 17.6 shall expressly survive the early termination of this
Agreement for the longest period provided by law. If this Agreement is
terminated for any reason prior to the closing of the transaction contemplated
hereby, then, upon the request of Seller, Purchaser shall immediately return to
Seller all Confidential Materials (including all copies thereof) which are in
the possession of Purchaser or any of Purchaser's Representatives. Purchaser's
obligations under this Section 17.6 are referred to herein as "Purchaser's
Confidentiality Obligations". Seller makes no representations or warranties
regarding the accuracy or completeness of any of the Confidential Materials.
17.7 PUBLICITY. Purchaser hereby covenants and agrees that, at all times
after the date of execution hereof and continuing after the Closing, unless
consented to in writing by Seller, such consent not to be unreasonably withheld,
no press release or other public disclosure concerning this transaction shall be
made, and Purchaser agrees to use best efforts to prevent disclosure of this
transaction. Seller shall have the right to make any filings with the Securities
and Exchange Commission and issue any press releases and make any other public
disclosure concerning this transaction.
17.8 ASSIGNMENT. Neither party shall have the right to assign this
Agreement, or any interest herein (including any right to purchase any separate
Building or any separately identified outlot constituting part of the Land or
the Xxxxxxxx Land), to any other person or entity, without first having obtained
the prior written consent of the non-assigning party (which consent maybe
withheld at such non-assigning party's sole and exclusive discretion); provided,
however, that Seller shall be deemed to have consented to the assignment, in
whole or in part, by Purchaser of Purchaser's rights and obligations under this
Agreement to one or more persons or entities associated or affiliated with, or
otherwise identified as potential investors or purchasers by, Purchaser
(including the right to purchase any separate Building or any separately
identified outlot constituting part of the Land or the Xxxxxxxx Land). In the
event of any assignment of this Agreement or any interest herein which has been
consented to by the non-assigning party hereunder, (i) the assignee shall be
entitled to the benefit of all the assigning party's rights and shall assume all
of the assigning party's obligations under this Agreement as to the applicable
Real Property, and (ii) the assigning party shall remain jointly and severally
responsible for all of its original obligations and liabilities set forth in
this Agreement and any obligations of the assignee under the closing documents
delivered in connection herewith; the aforementioned assignment shall not be
deemed to release the assigning party, in any respect, from any such obligations
and liabilities. This assignment provision shall survive the closing of the
transaction contemplated by this Agreement. Notwithstanding the foregoing,
Purchaser reserves the right to assign this Agreement, in whole or in part, to
one or
31
more exchange intermediaries to effect a like-kind exchange of the Purchaser's
(or Purchaser's assignees) relinquished real property in accordance with Section
1031 of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder. Seller consents to such assignments and agrees to sign Notices of
Assignment prior to Closing confirming that Seller has received the Notices of
Assignment and consented to the assignments. Seller shall not incur or be
responsible for any costs or expenses as a result of the exchanges.
17.9 WAIVER OF RIGHT TO TRIAL BY JURY. SELLER AND PURCHASER, TO THE EXTENT
THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR
INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, SELLER AND PURCHASER HEREBY
AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL
BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR
THEIR RIGHT TO TRIAL BY JURY.
17.10 ATTORNEYS' FEES AND COSTS. In the event suit or action is instituted
to interpret or enforce the terms of this Agreement, or in connection with any
arbitration or mediation of any dispute, the prevailing party shall be entitled
to recover from the other party such sum as the court, arbitrator or mediator
may adjudge reasonable as such party's costs and attorney's fees, including such
costs and fees as are incurred in any trial, on any appeal, in any bankruptcy
proceeding (including the adjudication of issues peculiar to bankruptcy law) and
in any petition for review.
17.11 RECORDATION. Purchaser shall not record this Agreement or a
memorandum or other notice thereof in any public office without the express
written consent of Seller. A breach by Purchaser of this covenant shall
constitute a default by Purchaser under this Agreement.
17.12 INDEPENDENT COUNSEL. Purchaser and Seller each acknowledge that: (a)
they have been represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such
counsel; and (c) this Agreement is the result of negotiations between the
parties hereto and the advice and assistance of their respective counsel. The
fact that this Agreement was prepared by Seller's counsel as a matter of
convenience shall have no import or significance. Any uncertainty or ambiguity
in this Agreement shall not be construed against Seller because Seller's counsel
prepared this Agreement in its final form.
17.13 GOVERNMENTAL APPROVALS. Nothing contained in this Agreement shall be
construed as authorizing Purchaser to apply for a zoning change, variance,
subdivision maps, lot line adjustment, or other discretionary governmental act,
approval or permit with respect to the Property prior to the Closing, and
Purchaser agrees not to do so. Purchaser agrees not to submit any reports,
studies or other documents, including, without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments or
documents prior to the Closing.
32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
SELLER: PURCHASER:
THIRD HORIZON GROUP TRIPLE NET PROPERTIES, LLC,
LIMITED PARTNERSHIP, a Delaware a Virginia limited liability company
limited partnership
By: THIRD HGI, L.L.C., a Delaware By: /s/ XXXXXXX X. XXXXXXXX
limited liability company, its --------------------------------
general partner Name: Xxxxxxx X. Xxxxxxxx
Its: President
By: HORIZON GROUP PROPERTIES, L.P., a
Delaware limited partnership, its
managing member
By: HORIZON GROUP PROPERTIES, INC.,
a Maryland corporation, its
general partner
By: /s/ XXXX X. XXXXXX
----------------------------
Name: XXXX X. XXXXXX
-----------------------
Its: PRESIDENT
------------------------
33
ACCEPTANCE BY ESCROWEE
Escrowee acknowledges receipt of the foregoing Agreement and accepts the
instructions contained herein.
MARCH 24, 2000
GUARANTY NATIONAL TITLE INSURANCE
COMPANY
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------
Name: XXXXXX XXXXXXXXX
--------------------------------------
Title: SENIOR VICE PRESIDENT
-------------------------------------
34
LIST OF EXHIBITS
EXHIBIT A-1- Legal Description of Dry Ridge Land
EXHIBIT A-2- Legal Description of Holland Land
EXHIBIT A-3- Legal Description of Xxxxxxxx Fee Land
EXHIBIT A-4- Legal Description of Xxxxxxxx Land
EXHIBIT A-5- Legal Description of Medford Land
EXHIBIT A-6- Legal Description of Monroe Land
EXHIBIT A-7- Legal Description of Norton Shores Land
EXHIBIT A-8- Legal Description of Warrenton Land
EXHIBIT B - Allocation of Purchase Price
EXHIBIT C - Identified Tangible Personal Property
EXHIBIT D - List of Outstanding Commissions/Notices from Tenants
Asserting Claims
EXHIBIT E - List of Notices from Governmental Authorities
EXHIBIT F - List of Pending Litigation
EXHIBIT G - List of Leasing Documents
EXHIBIT G-1 - Rent Roll
EXHIBIT H - List of Service Contracts
EXHIBIT I - Form of Tenant Estoppel Certificate
EXHIBIT J - Form of Non-Foreign Affidavit
EXHIBIT K - Major Tenants
35
