1
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALES AGREEMENT (the "Agreement") dated as of this
___ day of __________, 1998, by and between NORFOLK COMMERCE CENTER LIMITED
PARTNERSHIP, a Virginia limited partnership ("Seller"), and DEVELOPERS
DIVERSIFIED REALTY CORPORATION, an Ohio corporation, or its assignee or
designee ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of certain real property located in the
City of Norfolk, Virginia together with three (3) office/warehouse buildings
thereupon, such property commonly being known as "Norfolk Commerce Centers I,
III and IV" and having a street address of 5365, 5425 and 0000 Xxxxx Xxxx Xxxx,
together with all improvements located upon such real property and all personal
property of Seller located thereon or used in connection therewith; and
WHEREAS, Seller desires to sell to Buyer all of Seller's interest in
such real and personal property, upon the terms more particularly set forth
below.
NOW THEREFORE, in consideration of the mutual undertakings and
covenants herein contained, Seller and Buyer hereby covenant and agree as
follows:
2
SECTION 1
SALE OF PREMISES AND ACCEPTABLE TITLE
1.01 Agreement to Buy and to Sell; Project. Seller shall sell to
Buyer, and Buyer shall purchase from Seller, at the price and upon the terms
and conditions set forth in this Agreement, all of Seller's interest in the
following:
(a) (i) that certain real property containing
approximately 21.27 acres owned in fee simple by Seller and (ii) that certain
real property containing approximately 3.103 acres, the leasehold interest of
which is held by Seller pursuant to the terms of that certain Ground Lease
Agreement and Option to Purchase dated February 13, 1995 (the "Ground Lease")
and assigned to Seller as Ground Lessee thereunder pursuant to an Assignment
and Assumption of Ground Lease Agreement and Option to Purchase dated as of
August 13, 1996 (the "Assignment of Ground Lease"); the real property described
in (i) and (ii) being located in the City of Norfolk, Virginia, and more
particularly described on Exhibit A attached hereto and made a part hereof (the
"Land");
(b) all buildings, structures and improvements on the
Land and all related improvements, facilities, amenities, structures,
driveways, fixtures, landscaping, paving, site work, walkways, plumbing and
heating pipes, culverts, and mains located on the Land (collectively, the
"Improvements");
2
3
(c) all right, title and interest of Seller in and to any
alleys, strips or gores adjoining the Land, and any easements, rights-of-way,
water rights or other interests in, on, under or to, any land, highway, street,
road, right-of-way or avenue, open or proposed, in, on, under, across, in front
of, abutting or adjoining the Land, and all right, title and interest of Seller
in and to an awards for damage thereto by reason of a change of grade thereof;
(d) the accessions, appurtenant rights, privileges,
appurtenances and all the estate and rights of Seller in and to the Land and
the Improvements, as applicable, or otherwise appertaining to any of the
property described in the immediately preceding subparagraphs (a), (b) and/or
(c);
(e) the fixtures, equipment, machinery, supplies,
equipment, furniture, chattels, furnishings, and other personal property
located and/or used in connection with the operation and maintenance of the
Project, as defined below, or otherwise owned by Seller (collectively, the
"Personal Property");
(f) all intangible property now or hereafter owned by
Seller and used in connection with the Land, Improvements and Personal
Property, including without limitation, the right to use any trade style or
name now used in connection with the same, including the
3
4
name "Norfolk Commerce Center" and any derivative names thereof, any contract
rights, bank accounts, cash, escrow or security deposits, accounts receivable,
utility agreements, guarantees, licenses, approvals, certificates, certificates
of occupancy, plans and specifications, logos, permits, warranties or other
rights related to the development of, construction of, ownership of, or use and
operation of, the Project, as hereinafter defined and any other funds, deposits
or monies of Seller; and
(g) all of Seller's interest as lessor in all leases
(herein defined in Section 5.02(a) hereof) covering the Land and Improvements,
including all tenant security and other deposits and interest earned thereon
and prepaid rents and interest earned thereon.
All of the items described in subparagraphs (a), (b), (c) and (d)
above are hereinafter collectively referred to as the "Premises". All of the
items described in subparagraphs (a), (b), (c), (d), (e), (f) and (g) above are
hereinafter collectively referred to as the "Project".
1.02 Title.
(a) Seller shall convey to Buyer by a duly executed
special warranty deed (the "Deed"), and Buyer shall accept as fee simple title
to, the Premises in accordance with
4
5
the terms of this Agreement, and Buyer's obligation to accept said title shall
be conditioned upon Buyer then being conveyed good and clear records,
marketable and insurable title to the Land, together with a leasehold interest
in the Ground Lease, excepting only the Permitted Exceptions (hereinafter
defined). It shall be a condition precedent to Buyer's obligation to close
hereunder that a title insurance company (the "Title Company") acceptable to
Buyer and any lender providing Buyer's financing stands ready to issue, at the
Closing (herein defined) an ALTA owner's policy of title insurance, insuring
Buyer's interest in the Premises, dated the day of Closing, with liability in
the amount of the Purchase Price (herein defined), subject only to the
Permitted Exceptions (the "Title Policy"). The Title Policy shall inure
against all mechanics' liens and, provided Buyer elects to obtain a Survey
(hereinafter defined), shall have full survey coverage and shall be an extended
coverage policy insuring against, among other things, mechanics' liens,
easements and claims of parties in possession not shown by the public records
with all general and standard exceptions deleted, all at no additional premium
to be paid by Buyer.
(b) Simultaneously with the delivery of the Deed, Seller
shall execute and deliver to Buyer a special warranty xxxx of sale and
instrument of transfer and assignment (the "Xxxx of Sale"), in form and
substance satisfactory to Buyer's counsel, assigning and transferring all of
the tangible and intangible personal property constituting a portion of the
Project, including, without limitation, Seller's interest in (i) any proceeds
under any insurance policies or condemnation proceedings affecting any portion
of the Premises, (ii)
5
6
any licenses, permits, variances (if any), governmental approvals and consents
pertaining to the Project, (iii) any warranties and guaranties relating to the
Project, (iv) any contracts and agreements which relate to the Project that
Buyer has elected in writing to assume (v) if Buyer so elects, all rights to
deposits made by or on behalf of Seller in connection with the provision of
electric, sewer, water, telephone and other utility services to the Project,
and (vi) all leases and deposits relating to any portion of the Premises, free
and clear of all liens and encumbrances, except the Permitted Exceptions, and
indemnifying Buyer from obligations under all of the items assigned arising
prior to Closing and with Buyer's indemnifying Seller from obligations under
all of the items assigned and arising from and after the Closing.
(c) Buyer shall, promptly after the Effective Date, order
(i) a commitment for title insurance (the "Commitment") by the terms of which
Buyer's Title Company agrees to issue to Buyer at Closing the Title Policy,
(ii) a photocopy of all documents ("Title Documents") describing all title
exceptions shown on the Commitment ("Title Exceptions"), and (iii) if Buyer so
elects, an ALTA Land Title Survey of the Land (the "Survey"). If Buyer objects
to any matters disclosed by the Commitment, Title Documents or Survey, Buyer
shall furnish Seller with a written statement thereof within ten (10) days
following receipt by Buyer of the last of the Commitment, Title Documents and
Survey. All matters shown on the Title Exceptions which are not objected to by
Buyer within said ten (10) day period following receipt shall be "Permitted
Exceptions". Seller agrees to use its reasonable efforts to
6
7
satisfy such objections noted by Buyer, provided that Seller shall obtain a
satisfaction and release of any monetary liens, including, without limitation,
any and all mortgages, mechanics liens and judgment liens (collectively,
"Monetary Liens") and with respect to matters other than Monetary Liens, Seller
shall be obligated to spends up to $50,000 to cure any title objection. Seller
shall, within five (5) days after receipt of Buyer's objections, notify Buyer
of Seller's proposed actions to satisfy such objections, and shall have a
reasonable time, not to exceed fifteen (15) days, to satisfy such objections.
If, despite its reasonable efforts to do so, Seller cannot satisfy such
objections (other than the Monetary Liens, which shall be satisfied by Seller
and matters other than Monetary Liens, which cost up to $50,000 to cure) on or
before the expiration of such fifteen (15) day period, as the same may be
extended in Buyer's sole discretion, Buyer shall have the following options:
(i) to extend such fifteen (15) day period for such additional period up to
Closing that Buyer may elect, during which Seller shall continue to use its
reasonable efforts to satisfy such objections; (ii) to waive its objection
to such title defect and proceeds to Closing; or (iii) to terminate this
Agreement by written notice to Seller and obtain an immediate refund of the
Deposit, as defined in Section 2.02. Notwithstanding any term or provision
contained herein to the contrary, except with respect to Monetary Liens the
procurement by Seller of a commitment for the issuance of a Title Policy or an
endorsement thereto insuring Buyer against any Title Exception which Buyer
disapproved pursuant to this Section shall be deemed a cure by Seller of such
objection.
7
8
(d) Notwithstanding anything to the contrary contained in
Section 3.01 of this Agreement, if Buyer's objections to title matters are not
satisfied prior to expiration of the Study Period, Closing shall occur on the
later of (a) the date described in Section 3.01 and (b) five (5) business days
following satisfaction of Buyer's title objections in accordance with this
Section.
SECTION 2
PURCHASE PRICE AND ESCROW DEPOSIT
2.01 Purchase Price.
(a) The total purchase price ("Purchase Price") to be
paid by Buyer to Seller of the Project shall be TWENTY MILLION SEVEN HUNDRED
AND FIFTY THOUSAND AND NO/100 DOLLARS ($20,750,000.00). Such Purchase Price
shall be paid to Seller at Closing, as set forth in Section 2.01(b) below, of
which the Deposit (as hereinafter defined) shall constitute a part, subject to
prorations and adjustments as hereinafter provided in this Agreement.
(b) The Purchase Price shall consist of and be payable as
follows:
8
9
(i) Buyer shall, have the option either to (A)
pay the entire Purchase Price in cash at Closing by wire transfer of
immediately available funds or (B) subject to the terms and conditions of this
Agreement and further subject to Lender's prior approval, assume the existing
Xxxxxxx National Life Insurance Company (the "Lender") loan on the Project (the
"Xxxxxxx Loan") of approximately $11,755,021.67, which is the projected balance
of the Xxxxxxx Loan as of May 1, 1998 (and the projected balance of said loan
after the debt service payment due on May 1, 1998 shall be approximately
$11,741,223.42), at an annual interest rate of 8.25% per annum with monthly
payments of principal and interest of $94,614.02 (based on a 25-year
amortization schedule), on the same terms and conditions as set forth in the
loan documents evidencing the Xxxxxxx Loan (the "Xxxxxxx Loan Documents"), and
Seller shall be fully and completely released form the Xxxxxxx Loan Documents
except for liability with respect to matter which first arose and pertain to
the period of time during which Seller owned the Project (the "Assumable
Financing"). If Buyer is approved for the Assumable Financing, then, at
Closing, Buyer shall execute and deliver to the Escrow Agent, the Lender and
Seller such documents as are necessary for Buyer to consummate Buyer's
assumption of the Xxxxxxx Loan.
Buyer shall file, within ten (1) days after the Effective
Date, a complete application seeking to obtain the requisite approvals from the
Lender to assume the Xxxxxxx Loan on such terms and conditions as the Lender
may require. If Buyer has elected to assume the Xxxxxxx Loan but (a) Buyer is
not approved for the Assumable Financing which approval
9
10
must include Lender's agreement to release Seller from the Xxxxxxx Loan
Documents, or (b) Buyer does not accept and approve of the terms and conditions
of the Assumable Financing within five (5) days of Lender's offer of such terms
and conditions, which terms and conditions must provide for the release of the
Seller from the Xxxxxxx Loan Documents by the end of the Study Period (as
defined in Section 9.01 hereof), then either the Buyer or the Seller can elect
to terminate this Agreement within five (5) days of Lender's rejection of
Buyer's assumption of the Xxxxxxx Loan or Buyer's rejection of Lender's terms
and conditions. Such termination pursuant to this Section 2.01(b)(i) shall (w)
not be considered a breach of the Agreement; (x) not result in the assessment
of the damages or penalties to either party; (by) not result in either party
having liability to the other hereunder, and (z) result in the return of the
Deposit to the Buyer.
If neither the Buyer not the Seller elects to terminate the
Agreement pursuant to this Section 2.01(b)(i), then the cash portion of the
Purchase Price shall automatically be increased to the full Purchase Price such
that the purchase described in this Agreement shall be an all cash transaction.
Seller shall pay any and all fees, expenses and other costs
associated with Buyer's application and assumption of the Xxxxxxx Loan
including, without limitation, any application fees, review fees, processing
fees, transfer/assumption fees and Lender's costs and expenses, furthermore,
if this transaction is an all cash transaction without an
10
11
assumption by Buyer of the Xxxxxxx Loan, Buyer and Seller shall hereafter
mutually agree as to which of Buyer or Seller shall pay any prepayment fees,
premiums and other costs and expenses required in connection with the
prepayment of the Xxxxxxx Loan.
automatically be increased to the full Purchase Price such that the purchase
described in this Agreement shall be an all cash transaction.
Seller shall pay any and all fees, expenses and other costs associated
with Buyer's application and assumption of the Xxxxxxx Loan including, without
limitation, any application fees, review fees, processing fees,
transfer/assumption fees and Lender's costs and expenses. Furthermore, if this
transaction is an all cash transaction without an assumption by Buyer of the
Xxxxxxx Loan, Buyer and Seller shall hereafter mutually agree as to which of
Buyer or Seller shall pay any prepayment fees, premiums and other costs and
expenses required in connection with the prepayment of the Xxxxxxx Loan.
(ii) If Buyer assumes the Xxxxxxx Loan, the
balance of the cash portion of the Purchase Price shall be paid by Buyer at
Closing by wire transfer of immediately available funds. If Buyer does not
assume the Xxxxxxx Loan, the entire Purchase Price shall be paid by Buyer on or
before 12:00 p.m. (ET) at Closing by wire transfer of immediately available
funds.
11
12
2.02 Deposit; Escrow Agent
(a) Within three (3) business days following the date
that Commercial Title Group, Limited, 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxx ("Escrow
Agent"), receives a copy of this Agreement executed by both Seller and Buyer,
Buyer shall deposit with the Escrow Agent the amount of $125,000.00, either by
certified bank or cashier's check or by wire transfer, as a good faith deposit
hereunder. Such $125,000.00 deposit, and all interest earned thereon, shall be
referred to as the "Initial Deposit". All interest on any deposit shall be
deemed income of Buyer. Escrow Agent shall maintain the Initial Deposit in an
FDIC-insured interest-bearing account. The Initial Deposit shall be applied to
the Purchase Price at Closing and shall be non-refundable to the Seller except
as otherwise provided herein. The Initial Deposit shall be released in
accordance with the terms and provisions of this Agreement.
(b) Provided Buyer has not elected to terminate this
Agreement during the Study Period (as defined in Section 9.01), Buyer shall
within two (2) business days after the end of the Study Period deliver to the
Escrow Agent the amount of $125,000.00, via certified bank check or cashier's
check or wire transfer, as an additional xxxxxxx money deposit hereunder. Such
$125,000.00, and all interest earned thereon, shall be referred to as the
"Additional Deposit". Escrow Agent shall maintain the Additional Deposit in an
FDIC-insured interest-bearing account. The Initial Deposit together with the
Additional Deposit shall be
12
13
referred to herein as the "Deposit". The term "Deposit" a used herein shall,
in addition to referring to both the Initial Deposit and the Additional Deposit
may also be deemed to refer to either the Initial Deposit or the Additional
Deposit, as the context requires. Upon receipt of the Additional Deposit by
the Escrow Agent, both Deposits shall become non-refundable to Buyer, and shall
be applied to the Purchase Price, unless Seller otherwise defaults in its
obligations to close the transaction contemplated by this Agreement in which
event the Deposits, together with all accrued interest thereupon, shall be
refunded to Buyer. The failure of Buyer to timely deliver any Deposit
hereunder shall be a material default, and shall entitle Seller, at Seller's
sole option, to terminate this Agreement immediately.
(c) Notwithstanding any other provision in this Agreement
to the contrary, if prior to the end of the Study Period (as defined in Section
9.01) Buyer should discover one or more condition(s) or defect(s) in or to the
Project, or have any objection to the Project which arises pursuant to or in
connection with (i) the title commitment, (ii) the Survey or (iii) Buyer's
inspection of the Project during the Study Period pursuant. to this Agreement,
and such condition(s) or defect(s) could be cured or remedied for an amount not
to exceed, in the aggregate, one percent (1%) of the Purchase Price (based upon
Buyer's good faith estimate of such costs provided such estimates are supported
by documentation reasonably required by Seller) then Buyer shall immediately
notify Seller in writing of any such condition(s) requesting that Seller cure
or remedy said condition(s) prior to the Closing
13
14
date hereof at Seller's sole expense, said written notice also to include all
documentation reasonably required by Seller in support of Buyer's estimate to
remedy the condition(s) (the "Cure Notice"). Within three (3) business days
after receipt of the Cure Notice, Seller shall notify Buyer in writing whether
or not Seller elects to cure or remedy any condition(s) which is the subject of
a Cure Notice. If Seller elects not to cure or remedy such condition(s), or if
Seller fails to notify Buyer of its election to cure any condition(s) which is
the subject of a Cure Notice within three (3) business days as provided
hereinabove, then Buyer shall have the right to (i) terminate this Agreement by
written notice to Seller and obtain an immediate refund of any Deposit,
together with any interest thereon, in which case neither party shall have any
further rights or obligations hereunder (except for any indemnity obligations
of either party pursuant to the other provisions of this Agreement), and each
party shall bear its own costs incurred hereunder, or (ii) Buyer may elect to
proceed with the purchase of the Project subject to such condition(s) specified
in any such Cure Notice, and. in such event, the Purchase Price shall be
adjusted at Closing by the amount set forth in the Cure Notice with respect to
the estimated cost to remedy such condition(s); provided however, nothing
herein shall obligate Seller to institute litigation to satisfy any such
condition(s), or obligate Seller to expend any amounts in excess of one percent
(1%) of the Purchase Price to remedy such condition(s) (excluding all costs
associated with the assumption of the Xxxxxxx Loan and release of the
guarantors thereunder, which are the subject of the provisions of Section
2.01(b) hereof.
14
15
(d) The Escrow Agent joins in the execution of this
Agreement for the purpose of acknowledging receipt of the Deposit and agreeing
to hold and release the Deposit in accordance with the terms and provisions of
this Agreement.
(e) If there is a dispute between Seller and Buyer
concerning Seller's or Buyer's right to receive the Deposit, or the proceeds of
collection thereof, Escrow Agent shall continue to hold the Deposit until the
dispute is resolved by Seller and Buyer or until otherwise directed by a court
of competent jurisdiction. Upon termination of the escrow, all interest earned
on the investments shall be paid to the party entitled to receive the principal
thereof.
SECTION 3
THE CLOSING
3.01 Closing. All documents necessary or appropriate to transfer
the Project shall be delivered and closing (the "Closing") shall be held on, or
in Buyer's sole discretion, provided that Seller is furnished with three (3)
days prior written notice of the earlier Closing Date, before, the date that is
thirty (30) days after expiration of the Study Period (as defined in Section
9.01 hereof) Closing shall occur at the offices of Xxxx and Xxxx LLP, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
3.02 Conditions to Closing. It is a condition precedent to Buyer's
obligation to close hereunder that as of the Closing (i) Seller shall have
performed all of its covenants
15
16
contained in this Agreement, and all of Seller's representations and warranties
contained in this Agreement shall be true and accurate in all material respects
on and as of the date of Closing as if made anew on that date, (ii) Title
Company shall stand ready to issue the Title Policy in the form described in
Section 1.02(a) hereof, and (iii) Seller shall have delivered to the Title
Company the items described in Section 10.
SECTION 4
SELLER'S PRE-CLOSING DELIVERIES
Seller shall deliver to Buyer, at Seller's sole cost and expense,
within five (5) days after execution of this Agreement copies of the following
documents relating to the Project (all of the following documents and other
items, together with the Additional Deliverables (hereinafter defined) shall be
'referred to herein collectively as the "Pre-Closing Deliverables"):
4.01 Leases. True and correct copies of the Leases and all
proposed additional Leases of space in the Premises currently being negotiated
by Seller.
4.02 Ground Lease. A true and correct copy of the Ground Lease and
all amendments and modifications thereof, including all material correspondence
between Seller and the ground lessor with respect thereto.
16
17
4.03 Permits. To the extent in Seller's possession, copies of all
building permits, certificates of occupancy and governmental permits.
4.04 Taxes. A copy of the most recent available real estate and
personal property tax statements for the Project.
4.05 Plans and Specifications. To the extent in Seller's
possession (i) originals (or copies, if originals are not available) of the
"as-built" plans and specifications for the existing, and any proposed,
improvements to the Project (the "Plans and Specifications") and (ii) a copy of
all guaranties and warranties currently in effect made by any person for the
benefit of Seller with respect to all or any part of the Project in connection
with the construction and equipping of the Project.
4.06 Title Matters/Survey. To the extent in Seller's possession, a
copy of Seller's existing Owner's Title Insurance Policy insuring Seller's
ownership of the Land, a copy of Seller's most recent survey of the Land and a
copy of the site plans of the Project, all of which, if available, are attached
hereto as Exhibit B.
4.07 Utility Bills. Copies of all utility bills relating to the
Project for the prior 12-month period.
17
18
4.08 Personal Property. A list of all Personal Property currently
used in the maintenance and operation of the Project.
4.09 Service/Equipment Contracts. Copies of all Service/Equipment
Contracts (hereinafter defined in Section 5.03).
4.10 Insurance Policies. Copies of all insurance policies
(collectively, the "Insurance Policies") pertaining to the Project.
4.11 Loan Documents. Copies of all documents evidencing the
Xxxxxxx Loan.
4.12 Financial Statements of the Project. A copy of the financial
statements for the most recently concluded fiscal year showing all items of
income and expenses, and monthly operating statements for the Project for the
year-to-date.
From time to time thereafter, Seller shall deliver to Buyer all
information pertaining to the Project prepared by or on behalf of Seller, or in
Seller's possession, which may reasonably be requested by Buyer (collectively,
the "Additional Deliverables").
18
19
SECTION 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof and as
of the Closing as follows:
5.01 Ownership. Seller is the owner of the Project of record and
in fact, legally and beneficially, and, to the best of its knowledge, has good,
marketable and insurable title to the Project. There are no options to
purchase the Project which are effective, nor has Seller previously entered
into any other contract of sale or agreement of any kind with a party other
than Buyer which is presently effective and which will not be terminated before
the date of this Agreement.
5.02 Leases.
(a) As of the date of the Agreement there are no leases,
subleases, licenses or other rental agreements or occupancy agreements (written
or verbal) which grant any possessory interest in and to any space situated on
or in any of the Premises or that otherwise give rights with regard to use of
any portions of any of the Premises other than the Leases delivered pursuant to
Section 4.01 hereof (said leases, together with any and all amendments,
modifications and supplements thereto and guarantees thereof and leases entered
into after the date hereof in accordance with this Agreement, are herein
referred to collectively as the "Leases");
19
20
(b) The copies of the Leases provided to Buyer pursuant
to Section 4.01 are true, accurate and complete as of the date hereof, are, to
the best of Seller's knowledge, in full force and effect and none of them has
been modified, amended or extended; attached as Exhibit C is a Certified Rent
Roll, which Seller hereby certifies is true, accurate and complete in all
material respects, setting forth the Leases;
(c) No renewal or extension options have been granted to
tenants other than as now set forth in the Leases;
(d) No tenant, or any other person, entity or association
has an option to purchase, right of first refusal, right of first offer or
other similar right in respect of all or any other portion of the Premises;
(e) No tenant is entitled to rental concessions or
abatements for any period subsequent to the Closing other than as set forth or
permitted in the Leases;
(f) To the best of Seller's knowledge, no parties to any
of the Leases are in default nor do any conditions exist that with the passage
of time, or giving of notice shall constitute a default;
20
21
(g) To the best of Seller's knowledge, Seller has
received no notice of any action or proceeding instituted against Seller by any
tenant of any portion of the Project;
(h) There are no security deposits or other deposits
other than those set forth in the Lease; and
(i) No rent has been paid more than one month in advance
under any Lease.
5.03 Service and Management Contracts. To the best of Seller's
knowledge, the agreements provided under Section 4.09 are all of the agreements
concerning the operation and maintenance of the Project entered into by Seller
and affecting the Project (collectively, "Service/Equipment Contracts").
Seller is not in default under any of the Service/Equipment Contracts and, to
the best of Seller's knowledge, no other parties to any of the
Service/Equipment Contracts are in default, nor do any conditions exist that,
with the passage of time, or giving of notice, or both, shall constitute a
default. To the best of Seller's knowledge, the copies of the
Service/Equipment Contracts provided to Buyer pursuant to Section 4.12 are
true, accurate and complete as of the date hereof, are in full force and effect
and none of them has been modified, amended or extended.
5.04 Hazardous Substances. The Project has not been used by Seller
for the generation, treatment, storage or disposal of any hazardous substances
during the period in
21
22
which Seller has owned the Project and, to the best of Seller's knowledge,
during the period of time prior to Seller's ownership and, to the best of
Seller's knowledge, there exist no hazardous substances on, under or at the
Premises. To the best of Seller's knowledge, there are no underground storage
tanks located on or under the Premises. For the purposes of this Section 5.04
"hazardous substances" shall include "hazardous substances" as defined in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601 et seq., and regulations adopted pursuant to
said Act, or any similar environmental protection law of the or its political
subdivisions.
5.05 Ability to Perform. Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Maryland. Seller has full power and authority to execute, deliver and carry out
the terms and provisions of this Agreement and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of Seller
enforceable in accordance with its terms, subject to creditors' rights,
bankruptcy and any other equitable principles. The execution and delivery of
this Agreement by the party signing on behalf of Seller has been duly
authorized. To the best of Seller's knowledge, no order, permission, consent,
approval, license, authorization, registration or validation of, or filing
with, or exemption by, any governmental agency, commission, board or public
authority is required to
22
23
authorize, or is required in connection with, the execution, delivery and
performance of this Agreement by Seller or the taking by Seller of any action
contemplated by this Agreement.
5.06 Compliance with Laws. Neither the entering into of this
Agreement nor the consummation of the transaction contemplated hereby will
constitute or result in a violation or breach by Seller of any judgment, order,
writ, injunction or decree issued against or imposed upon it, or will result in
a violation of any applicable law, order, rule or regulation of any
governmental authority. There are no actions, suits, proceedings, arbitrations
or investigations pending or, to the best of Seller's knowledge, threatened (i)
against, relating to or affecting Seller which might interfere in a material
respect with the transaction contemplated by this Agreement, become a cloud on
the title to the Project or any portion thereof or otherwise affect the Project
or Seller's ability to consummate the transaction contemplated hereby or (ii)
against, relating to or affecting the Project.
5.07 No Violation Notice. To the best of its knowledge, Seller has
not received written notice:
(a) from any federal, state, county or municipal
authority alleging any material fire, health, safety, building, pollution,
environmental, zoning or other
23
24
violation of law in respect of the Premises or any part thereof, including,
without limitation, the occupancy or operation thereof, which has not been
corrected;
(b) concerning the possible or anticipated condemnation
of any part of the Project, or the widening, change of grade or limitation on
use of streets abutting the same or concerning any special taxes or assessments
levied or to be levied against the Premises or any part thereof;
(c) concerning any change in the zoning classification of
the Premises or any part thereof.
If any such notice is received prior to the Closing, Seller shall
promptly notify Buyer thereof and comply with any requirements of such notice
pursuant to Section 6 hereof prior to the Closing.
5.08 Assessments. To the best of Seller's knowledge, there are no
pending or proposed special assessments affecting or which may affect the
Project or any portion thereof.
5.09 Xxxxxxx Loan. Seller has provided true, correct and complete
copies of all documents evidencing the Xxxxxxx Loan, the Xxxxxxx Loan is in
full force and effect, and there are no defaults under the Xxxxxxx Loan.
24
25
5.10 Miscellaneous Representations and Warranties.
(a) The business operations of the Project will be
conducted in the usual and normal manner until the Closing. After the
expiration of the Study Period, Seller shall not, without the prior written
consent thereto of Buyer, which consent shall not be unreasonably withheld,
delayed or conditioned, make (or knowingly permit) any material physical change
in the Project.
(b) Prior to the expiration of the Study Period, Seller
shall not, without the prior written consent thereto of Buyer, which consent
shall not be unreasonably withheld, delayed or conditioned, enter into any
lease affecting the Project or alter, modify, terminate or renew any existing
Lease. After the expiration of the Study Period, Seller shall not, without the
prior written consent of Buyer, which consent may be withheld by Buyer for any
reason or no reason at all, enter into any lease affecting the Project or
alter, modify, terminate or renew any existing Lease.
(c) Seller is not a "foreign person , as defined in the
Internal Revenue Code.
(d) The premiums are paid and current for the Insurance
Policies and to the best of Seller's knowledge, the Insurance Policies are in
full force and effect.
25
26
5.11 Additional Representation and Warranties Regarding Land Under
A Ground Lease
(a) A true, correct and complete copy of the Ground Lease
is attached hereto as Exhibit D. The Ground Lease is in full force and effect
and has not been materially modified, altered or amended other than as included
in Exhibit D. Neither of the ground lessor nor the Seller is in default under
any of the terms or conditions of the Ground Lease nor is there now any fact or
condition which, with notice or lapse of time or both, will become such a
default, nor has Seller received any written notice of a default by Seller
under the Ground Lease, which default remains uncured. All payments of rent
and other charges under the Ground Lease which were due and payable by Seller
prior to the date hereof under the terms of the Ground Lease has been paid and
no additional payments or other obligations are currently due and owing under
such terms.
(b) Ground Lessor Estoppel Certificates. Seller shall
deliver to Buyer a Ground Lessor Estoppel Certificate in substantially the form
attached hereto as Exhibit E from the ground lessor prior to Closing.
5.12 Notice of Change. In the event that Buyer becomes aware at
any time prior to Closing that a representation or warranty made by Seller
herein, while true as of the date made, no longer remains true in all material
respects, due to a change of circumstances beyond the reasonable control of
Seller subsequent to the date of this Agreement, Buyer
26
27
shall promptly give written notice of such fact to Seller. Seller shall use
its reasonable efforts to remedy such change of circumstances that causes the
representation or warranty to be untrue. In the event Seller is unable to
remedy such change of circumstances by the Closing, then Buyer shall have the
option to (a) terminate this Agreement, whereupon all obligations of all
parties hereto shall cease except for those obligations which survive a
termination, and the Deposit shall be returned to Buyer, or (b) proceed with
Closing notwithstanding such change of circumstances with no adjustment to the
Purchase Price.
5.13 No Other Representations or Warranties. Except as set forth
in Sections 5.01 through 5.12 hereof, Seller disclaims the making of any
representations or warranties, express or implied, regarding the Project or
matters affecting the Project, including, without limitation, the physical
condition of the Project, the existence of certain wetlands on the Project, the
quality of any work or materials used in connection with the improvements on
the Project, title to or the boundaries of the Project, pest control matters,
soil condition, hazardous waste, toxic substance or other environmental
matters, compliance with building, health, safety, land use and zoning laws,
regulations and orders, structural and other engineering characteristics,
traffic patterns, the development potential of the Project and the Project's
use, fitness, value or adequacy for any particular purpose, and all other
information pertaining to he Project. Buyer, moreover, acknowledges (i) that
Buyer has entered into this Agreement with the intention of making and relying
upon its own independent investigation, inspection, analysis, examination and
evaluation of the
27
28
physical, environmental, economic and legal condition of the Project and all
other relevant facts and circumstances and (ii) that, except as set forth in
Sections 5.01 through 5.12 hereof, Buyer is not relying upon any
representations and warranties made by Seller, Seller's agents, brokers,
management agent or anyone else acting or claiming to act on Seller's behalf
concerning the Project. Buyer further acknowledges that it has not received
from Seller any investment, accounting, tax, legal, environmental,
architectural, engineering, property management or other advice with respect to
this transaction and is relying solely upon the advice of its own investment,
accounting, tax, legal environmental, architectural, engineering, property
management and other advisors. Subject to the provisions of Sections 5.01
through 5.12 of this Agreement, Buyer shall accept the Project in its "as-is,
where-is" condition, with all faults, on the Closing, and assumes the risk that
adverse physical, environmental, economic or legal conditions may not have been
revealed by its investigation.
Buyer hereby specifically acknowledges that Buyer has carefully
reviewed this Section 5.13 and discussed its import with legal counsel and that
the provisions of this Section 5.13 are a material part of this Agreement. The
disclaimer contained in this Section 5.13 shall not merge with the transfer of
the Project and shall survive Closing, without any limitation as to a survival
period.
28
29
SECTION 5A
Buyer represents, warrants and covenants to Seller as of the date
hereof and as of the Closing as follows:
5.0lA Ability to Perform. Buyer is a corporation organized, validly
existing and in good standing under the laws of the State of Ohio. Buyer has
full power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of Buyer enforceable in
accordance with its terms, subject to creditors' rights, bankruptcy and other
equitable principles. The execution and delivery of this Agreement by the
party signing on behalf of Buyer has been duly authorized. No order,
permission, consent, approval, license, authorization, registration or
validation of, or filing with, or exemption by, any governmental authority or
agency, commission, board or public authority is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement by Buyer or the taking by Buyer of any action contemplated by this
Agreement.
5.02A Compliance with Laws, etc. Neither the entering into of this
Agreement nor the consummation of the transaction contemplated hereby will
constitute or result in a violation or breach by Buyer of any judgment, order,
writ, injunction or decree issued against or imposed upon it, or will result in
a violation of any applicable law, order, rule or regulation of any
governmental authority. There are no actions, suits, proceedings,
29
30
arbitrations or investigations pending or, to the best of Buyer's knowledge,
threatened against, relating to or affecting Buyer which might interfere in a
material respect with the transaction contemplated by this Agreement or
otherwise affect Buyer's ability to consummate the transaction contemplated
hereby. There are no facts, events, conditions or occurrences by reason of
which any such action, suit, proceeding, arbitration or investigation may be
brought by any person or entity against Buyer.
5.03A Bankruptcy. No attachment, execution, assignment, for the
benefit of creditors or voluntary proceedings in bankruptcy has been commenced
by the Buyer and, to the best of Buyer's knowledge, no such action has been
contemplated or threatened, nor has any involuntary proceedings in bankruptcy
been commenced against the Buyer.
5.04A Miscellaneous Agreements. Buyer acknowledges that all
information with respect to the Project furnished to Buyer, including, without
limitation, Pre-Closing Deliverables (collectively, the "Confidential
Information"), is and has been so furnished on the condition that Buyer
maintains the confidentiality thereof. Accordingly, Buyer shall, and shall
cause its directors, officers, employees, agents, contractors and
representatives to, hold in strict confidence, and not disclose to any other
person or entity without the prior written consent of Seller until the Closing
shall have been consummated, any of the Confidential Information in respect of
the Project delivered to Buyer by Seller or any of its agents, representatives,
directors, officers or employees. If
30
31
the Closing does not occur and this Agreement is terminated, Buyer shall
promptly return, or cause to be returned, to Seller all copies of such
Confidential Information without retaining, or permitting retention of, any
copy thereof. Notwithstanding anything to the contrary hereinabove set forth,
Buyer may disclose such Confidential Information (i) on a need-to-know basis to
its employees, its title insurer and members of professional firms serving it
in connection with this transaction, including, without limitation, its
attorneys, architects, environmental consultants and engineers, and its
clients; (ii) as any governmental agency or authority may require in order to
comply with applicable laws or regulations; and (iii) if required by an order
of any court of competent jurisdiction, and this provision shall survive
Closing.
SECTION 6
VIOLATIONS OF LAW
6.01 Responsibility for Violations. All notices of violations of
laws, ordinances, or regulations ("Violations of Law"), which are issued or
sent prior to the Closing by any governmental department, agency or bureau
having jurisdiction as to conditions affecting the Project shall be remedied or
complied with by Seller prior to Closing; provided, however, that if Seller is
unable to remedy such Violations of Law or comply with such notices by the
Closing then Buyer shall have the option to (a) terminate this Agreement,
whereupon all obligations of all parties hereto shall cease, the Deposit shall
be returned to Buyer and this Agreement shall be void and without recourse to
the
31
32
parties hereto, except for provisions which are expressly stated to survive
such termination; or (b) proceed with Closing notwithstanding such Violations
of Law. Notwithstanding any term or provision contained herein to the
contrary, in no event shall Seller be obligated to spend more than $20,000 to
remedy any Violations of Law. In the event the Violations of Law require
Seller to spend more than $20,000 in the aggregate to remedy, Seller shall
notify Buyer of its election not to remedy such Violations of Law, and Buyer
shall elect, by written notice to Seller within five (5) days of receipt of
such notification from Seller, to either (i) waive its objection to such
Violations of Law and proceed to Closing or (ii) terminate this Agreement and
obtain a refund of the Deposit.
SECTION 7
INSURANCE
7.01 Maintenance of Insurance. Until the Closing, Seller shall
maintain its present insurance on the Project, which insurance in respect of
fire and casualty shall be covered by a standard All-Risk Policy in an amount
at least equal to the full replacement value of the Project. Subject to the
provisions of Section 7.02, the risk of loss in and to the Project shall remain
vested in Seller until the recordation of the Deed to Buyer.
7.02 Casualty or Condemnation. If prior to the Closing, the
Project or any "material" portion thereof is damaged or destroyed by fire or
casualty, or any part of
32
33
the Project is taken or threatened to be taken by eminent domain by any
governmental entity, then Buyer shall have the option, exercisable by written
notice given to Seller at or prior to the Closing, either to (a) terminate this
Agreement, whereupon all obligations of all parties hereto shall cease, the
Deposit shall be returned to Buyer and this Agreement shall be void and without
recourse to the parties hereto except for provisions which are expressly stated
to survive such termination; or (b) proceed with the purchase of the Project,
and in such case, unless Seller shall have previously restored the Project to
its condition prior to the occurrence of any such damage or destruction, Seller
shall pay over or assign to Buyer, without recourse, all amounts received or
due (plus an amount equal to the sum of any deductible under any insurance
policy covering the Project) from, and all claims against, any insurance
company or governmental entity as a result of such destruction or taking.
Within thirty (30) days after receipt of written notice of such casualty or
condemnation, Buyer will advise Seller in writing whether Buyer desires to
proceed with this transaction in light of such casualty or condemnation. The
term "material" as used in this Section 7.02 shall mean damage or destruction
in an amount equal to or greater than $200,000.
33
34
SECTION 8
SELLER'S OBLIGATIONS PRIOR TO CLOSING
Seller covenants that between the date of this Agreement and the
Closing (all of which must be true and correct in all material respects as of
the Closing and shall constitute condition precedents to Buyer's obligation to
close hereunder):
8.01 Replacement of Personal Property; Inventory. No material
personal property included as part of the Project shall be removed from the
Project unless the same is replaced with similar items of at least equal
quality prior to the Closing.
8.02 Prudent Business Practices. Seller shall maintain the Project
in good operating condition and repair, shall not commit or allow to occur
waste of the Project so that the Project, except for normal wear and tear, is
in good repair on the date of Closing and substantially the same state of
repair and condition as existed as of the Effective Date.
8.03 Tenant Estoppels. Seller shall use reasonable efforts to
obtain and deliver to Buyer at least (5) business days prior to the Closing an
executed estoppel letter, in form reasonably satisfactory to both Seller's and
Buyer's counsels, a proforma copy being attached hereto as Exhibit G (the
"Tenant Estoppels"), from tenants whose leases constitute in the aggregate not
less than eighty percent (80%) of the rentable square footage of the
Improvements, or in the form described or contemplated in the lease, the
substance and content of which must be consistent in all material respects with
the Lease.
34
35
Upon delivery to Buyer prior to or after Closing of a Tenant Estoppel
confirming the matters set forth in Section 5.02 hereof as to such tenant's
Lease, the representations and warranties of the Seller set forth in Section
5.02 hereof shall be deemed terminated and the Seller shall have no liability
to the Buyer therefor.
Notwithstanding the foregoing, Buyer acknowledges and agrees that,
with respect to any Lease with any U.S. governmental agency and Leases with
State agencies, Buyer shall be deemed to have satisfied its obligation to
deliver an estoppel certificate if it uses reasonable efforts to obtain from
such U.S. governmental agency a Lease Status Report or from the State agencies
their form of estoppel certificate or lease status report. If Buyer does not
terminate this Agreement prior to the expiration of the Study Period, Buyer
shall be deemed to have accepted the Tenant Estoppels for all purposes and
Seller shall be deemed to have satisfied this covenant. Seller shall reasonably
cooperate with Buyer and any lender of Buyer in connection with obtaining
subordination, non-disturbance and attornment agreements and tenant estoppels
required by any lender of Buyer from the tenants occupying space within the
Project.
35
36
SECTION 9
STUDY PERIOD
9.01 Study Period. Buyer shall have until 6:00 p.m. on the date
that is forty-five (45) days following the Effective Date hereof (the "Study
Period") to perform a feasibility study of the Project, including, but not
limited to, test borings, soil analyses, hydrologic and environmental surveys,
marketing and feasibility studies, structural and engineering investigations,
auditing of the books and records of the Seller and the Project, financial
analyses and verifications of existing zoning and status of title and
conferences with governmental staff members. In the event that any such
examinations, studies, tests, reviews and/or inspections cause Buyer, in its
sole and absolute discretion, to believe that it is not prudent to proceed to
Closing, then Buyer may, at any time during the Study Period, terminate this
Agreement by giving written notice of such termination to Seller, whereupon the
parties hereto shall be released from any and all further liability and
obligation hereunder and the Initial Deposit shall promptly be returned to
Buyer. In the event Buyer does not terminate the Agreement as provided in this
Section 9.01, Buyer and/or its designees shall have the continued right until
Closing, as hereinafter defined, to inspect, survey and make other tests of the
Project.
9.02 Access. Upon execution of this Agreement, Buyer and its
agents shall have full access to the Project, subject to the rights of tenants
with reasonable notice to them, and full access during business hours upon
reasonable advance notice to Seller to all books, records, files, financial
data, leases and contracts relating to the Project. Seller reserves the right
to have a representative present during any such inspections. Buyer and
36
37
its agents shall have the right to inspect and copy the foregoing documents,
conduct all surveys, tests, test borings, soil analyses, engineering, hazardous
waste and environmental studies, studies, examinations and to make such
inquiries concerning the Project as Buyer may determine necessary or desirable.
Seller shall use reasonable efforts to cooperate in such examinations and shall
instruct Seller's agents, servants, employees, and representatives to cooperate
in assisting Buyer in the exercise of Buyer's study rights including, without
limitation, allowing Buyer access to such materials in the Project Manager's
office or elsewhere. In the event Buyer enters upon the Project for purposes of
this Section 9.02, Buyer will indemnify, defend and hold harmless Seller and
its agents, servants and employees from and against any loss, cost, expense,
claim or liability made against Seller or its agents, servants or employees as
a result of such entry, including, without limitation, the costs of restoring
the Project to its original condition existing immediately prior to Buyer's
action, or death or injury to any person which occurs as a result of the acts
or omissions of Buyer or any of its employees, consultants, engineers, agents
and representatives, during any entry onto or inspection of the Project, or
during the conduct of any of the Feasibility Studies, by Buyer or any of its
employees, agents or representatives. Buyer agrees to restore the Project to
its condition existing immediately prior to Buyer's or its agent's actions.
This Section 9.02 shall survive any termination of this Agreement or Closing
hereunder. Seller shall also furnish Buyer, within the Study Period, all
additional information which Buyer may reasonably request with respect to the
Seller, the Project or the operation of the Project.
37
38
SECTION 10
SELLER'S CLOSING OBLIGATIONS
10.01 Closing Deliveries and Obligations. At or prior to the
Closing, Seller shall deliver the following to Buyer (all of which shall
constitute condition precedents to Buyer's obligation to close hereunder):
(a) Deed; Xxxx of Sale. The Deed and Xxxx of Sale, all
in form reasonably satisfactory to Buyer's counsel, duly executed and
acknowledged, which together convey the Project to Buyer, subject only to the
Permitted Exceptions.
(b) Assignment of Leases. An assignment of the Leases,
in form satisfactory to Buyer's counsel.
(c) Lease Records. The original Leases, or to the extent
not in Seller's possession, photocopies, certified by Seller as true and
complete, of Leases, and all rent records and related documents in the
possession or under the control of Seller. To the extent any deposits are in a
form other than cash, such deposits shall be transferred to Buyer at Closing in
a manner reasonably acceptable to Buyer.
(d) Plans, Specifications, Warranties, Guaranties and
Licenses. To the extent in Seller's possession, copies of all current site
plans, surveys, soil and substrata
38
39
studies, architectural drawings, plans and specifications, engineering plans
and studies, floor plans, landscape plans and other plans or studies of any
kind that relate to all or any part of the Project. Seller shall also deliver
(i) originals (or copies, if originals are not then available) of all then
effective assignable guaranties, warranties and/or payment and performance
bonds made by any person for the benefit of Seller, with respect to the Project
or any of its components, together with an instrument assigning such guaranties
and warranties to Buyer and (ii) originals (or copies, if originals are not
then available) of all certificates, Licenses, permits, authorizations and
approvals issued for or with respect to the Project by governmental and
quasi-governmental authorities having jurisdiction, to the extent such items
are in Seller's possession.
(e) Title Affidavits. Such affidavits, indemnities and
lien waivers as Buyer's title insurer may reasonably require.
(f) Files. To the extent available, originals (or
copies, if originals are not available) of all documents and books and records
necessary for the continued operation of the Project, other than proprietary
information, including without limitation, lease files, rent records,
escalation records and statements and maintenance records.
39
40
(g) Notices of Sale. Sufficient original letters,
executed by Seller in form and substance satisfactory to Buyer, advising
tenants under the Leases of the sale of the Project to Buyer and directing that
all rents and other payments thereafter becoming due be sent to Buyer or as
Buyer may direct.
(h) Certificate as to Representations, Warranties and
Covenants. A certificate by Seller to the effect that all of the
representations, warranties and covenants of Seller set forth in Sections 5 and
8 remain true and correct in all material respects as of the Closing.
(i) Notices. Any required approval or notice required by
any federal, state or local government authority required in connection with
the transfer of the title hereunder.
(j) Evidence of Tax Payments. A receipt or receipts from
the appropriate taxing authorities evidencing that all real estate taxes and
personal property taxes affecting the Project are not delinquent.
(k) Organizational Documents. The organizational
documents of Seller together with an original resolution of Seller authorizing
the execution of this Agreement,
40
41
the conveyance documents and all other documents to be executed by Seller and
the performance by Seller hereunder and thereunder together with a good
standing certificate of Seller.
(l) Assumable Financing. The Xxxxxxx Loan Documents, if
any, and an assignment thereto.
(m) Assignment and Assumption of Ground Lease. The
Assignment and Assumption of the Ground Lease, in substantially the form
attached as Exhibit F.
10.02 Possession. At the Closing and as a condition precedent to
Closing, Seller shall deliver full possession of the Project, free of all
tenants or occupants other than under the Leases, which Leases shall be in full
force and effect.
10.03 Seller's Covenant and Indemnity. As additional consideration
for Buyer's purchasing the Project and paying the Purchase Price to the Seller,
Seller hereby covenants and agrees to (i) remain fully liable for the
performance and payment of all tenant improvements and the payment of all
leasing commissions currently due and owing (including any delinquent amounts)
under any of the Leases or under any leasing/commission agreement or which
shall hereafter be due and owing under any of the Leases or under any
leasing/commission agreement, excluding, however, tenant improvement costs and
leasing commissions with respect to any option to renew or extend leases, it
being expressly
41
42
understood and agreed that Buyer is not assuming the obligations to perform or
pay for any tenant improvements or to pay for any leasing commissions which
have heretofore accrued, and which are now owing under any of the Leases or
under any leasing/commission agreement other than as aforesaid, and (ii)
indemnify, defend and hold Buyer (together with its officers, directors,
partners, and employees) harmless from and against all claims, demands, causes
of actions, judgments, damages, costs and expenses (including, without
limitation, reasonable, actual attorneys' fees and court costs), deficiencies,
settlements and investigations which relate to matters, actions or omissions
which arise out of or are based upon any of the following:
(a) any obligation under any contracts, agreements and
writings entered into by or on behalf of Seller in respect of the use,
construction, operation, ownership, occupancy or maintenance of any portion of
the Project arising out of an event occurring on or before Closing;
(b) any accident, injury, death or damage whatsoever
caused to any person or entity or loss of property, occurring in or about the
Premises or any part thereof, or on any other property connected with or
adjacent thereto on or before the Closing; or
(c) any breach of the covenant set forth in Section
10.03(i), above, or with respect to any payment or performance obligation under
any of the Leases for tenant
42
43
improvements or under any of the Leases and/or leasing/commission agreements
for leasing commissions which have heretofore accrued or which are now due and
owing.
(d) any breach of a representation or warranty set forth
in Section 5, above.
This Section 10.03 shall survive the Closing until the first
anniversary of the Closing; provided, however, the representations set forth in
Section 5.02, above, shall survive until the expiration of each lease currently
in effect at the Project.
SECTION 11
BUYER'S CLOSING OBLIGATIONS
At the Closing, Buyer shall:
11.01 Payment of Purchase Price. Deliver to Seller the Purchase
Price, as adjusted for apportionments under Section 12 and any other
adjustments thereto required pursuant to the express provisions of this
Agreement.
11.02 Assumable Financing. Deliver the assumption, if applicable,
of the Xxxxxxx Loan Documents and other documents relative thereto as required
by Lender and the Escrow Agent.
43
44
11.03 Closing Certificate. A certificate by Buyer (i) to the effect
that all of the representations, warranties and covenants of Buyer set forth in
Section 5A remain true and correct in all material respects as of the Closing
and (ii) confirming the waivers and acknowledgments set forth in Section 5.13
hereof.
11.04 Indemnity. Buyer hereby covenants and agrees to indemnify,
defend and hold Seller (and it's general partner, together with their
respective officers, directors and employees) harmless from and against all
claims, demands, causes of actions, judgments, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and court costs),
deficiencies, settlements and investigations which relate to matters, actions
or omissions which arise out of or are based upon any obligations under any of
the Xxxxxxx Loan Documents (except for liability with respect to matters which
first arose and pertain to the period of time during which Seller owned the
Project).
11.05 Other Documents. Deliver any other documents required by this
Agreement to be delivered by Buyer, including, without limitation, the Xxxx of
Sale, Assignment of Leases, and the Assignment and Assumption of Ground Lease.
44
45
SECTION 12
APPORTIONMENTS AND ADJUSTMENTS TO
PURCHASE PRICE;CLOSING EXPENSES
12.01 Apportionments. The following items shall be prorated as of
12:01 A.M. on the Closing and the net amount thereof shall be added to or
deducted from, as the case may be, the amount of the Purchase Price to be paid
at the Closing;
(a) general real estate, personal property and ad valorem
taxes and assessments for the current tax year of the Project. If any such
taxes or assessments are payable in installments all installments due through
the Closing together with the accrued but unpaid portion of any other
installments not yet due as of the Closing shall be paid for by the Seller;
(b) taxes, water, sewer and front foot benefit charges,
and charges for electricity, gas, telephone and other utilities and license
fees;
(c) rent and other charges under the Leases (to the
extent monies have actually been collected therefor);
(d) all other income and expenses relating to the
Project; and
(e) any other items that are customarily prorated in
transactions of this nature.
45
46
Buyer shall assume, as of the Closing, all obligations of Seller under
the Ground Lease, provided that all obligations under the Ground Lease are paid
current as of the Closing.
Any and all security deposits, prepaid rent and all interest earned
thereon shall be a credit to Buyer at Closing. Seller shall be fully liable
for any wages and other amounts due and owing any employees at the Project.
Seller shall retain, and shall not be entitled to any credit for, the deposits,
if any, made by Seller in connection with the provision of electric, sewer,
water, telephone and other utility services to the Project.
For purposes of calculating prorations, Buyer shall be deemed to be in
title to the Project, and, therefore, entitled to the income therefrom and
responsible for the expenses thereof for the entire day upon which the Closing
occurs. All such prorations shall be made on the basis of the actual number of
days of the month which shall have elapsed as of the day of the Closing and
based upon the actual number of days in the month and a three hundred
sixty-five (365) day year. The amount of such prorations shall be initially
performed by Title Company at Closing but shall be subject to adjustment in
cash after the Closing outside of escrow as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Buyer agree to cooperate and use their best efforts to make
such adjustments no later than sixty (60) days after the Closing (except with
respect to property taxes, which shall be adjusted within sixty (60) days after
the tax bills for the applicable period are received).
46
47
Without limiting the generality of the foregoing, Seller and Buyer
hereby agree that with respect to any year-end reconciliations of reimbursable
expenses under the Leases, Seller and Buyer shall cooperate to complete such
reconciliations as soon as possible after the Closing, with Seller responsible
for amounts owing to tenants under the Leases, and entitled to Rents
(hereinafter defined) payable by tenants under the Leases (as the case may be),
with respect to periods prior to the Closing, and with Buyer responsible for
amounts owing to tenants under the Leases, and entitled to Rents payable by
tenants under the Leases (as the case may be), with respect to periods from and
after the Closing (and, with respect to any such amounts payable to Seller,
Buyer shall have no obligation to collect such Rents, including having no
obligation to institute legal proceedings, including any action for unlawful
detainer, against a tenant owing any such Rents, and to the extent Buyer
actually receives any delinquent Rents owing to Seller Buyer shall tender the
same to Seller to the extent of amounts delinquent and actually due Seller but
only after (y) reimbursing Buyer for its actual out-of-pocket costs and
expenses of collection incurred with respect to such tenant, and (z) all Rents
due and owing to Buyer have been paid to Buyer in full (including, without
limitation, the payment to Buyer of delinquencies in Rent owing to Buyer)).
47
48
The term "Rent" as used herein shall mean all rents, including any
percentage rent and any accrued tax and operating expense escalation, charges,
and other revenue of any kind generated from or in connection with the Leases.
Except as set forth in this Section 12.01 all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Buyer. Buyer shall receive a credit
against the Purchase Price for all amounts of Rent which are allocable to the
period on and after the Closing and which have been prepaid as of the Closing
Date. The provisions of this Section 12.01 shall survive the Closing.
12.02 Operating Expense Pass-throughs. With respect to expenses of
the Project which are chargeable to the tenants pursuant to the provisions of
the Leases (the "CAM Charges"), Seller shall determine (1) the amount of those
expenses paid or payable by Seller from January 1 in the year in which the
Closing occurs through the date of Closing (or, with regard to taxes and
assessments, the amount of the proration thereof charged to Seller) and (2) the
amount tenants have paid to Seller from January 1 in the year in which Closing
occurs until the date of Closing as the tenants' pro rata share of such tenant
expenses. Buyer shall be entitled to a credit at Closing equal to the amount
Seller has received as of the Closing Date as pro rata expense payments from
tenants in excess of the expenses paid or payable by Seller through the Closing
Date. If accurate allocations of CAM Charges cannot be made at Closing because
current bills
48
49
are not obtainable, the parties shall allocate such expenses at Closing on the
best and most current information available, subject to adjustment in cash
after the Closing outside of escrow as and when final bills or other evidence
of the applicable expense are received. Buyer shall also be entitled to a
credit at Closing equal to any CAM Charges for 1997 and prior years which are
owing to any of the tenants of the Project which are presently in occupancy.
The provisions of this Section 12.02 shall survive the Closing.
12.03 Closing Expenses. Buyer and Seller shall each pay fifty
percent (50%) of the costs of (i) the survey of the Premises, (ii) the charges
for the title commitment and report, (iii) the premium for the Title Policy,
(iv) any and all state and local transfer, recordation and documentary taxes
and any and all recording costs applicable to the transactions contemplated
herein, (v) all escrow charges and (vi) closing costs. Each party will be
responsible for its own legal fees, consultant's fees and costs of inspection.
Seller shall pay any and all fees, expenses and other costs associated with
Buyer's application and assumption of the Xxxxxxx Loan including, without
limitation, any application fees, review fees, processing fees,
transfer/assumption fees and Lender's costs and expenses. The provisions of
this Section 12.03 shall survive the Closing.
49
50
SECTION 13
FAILURE TO PERFORM
13.01 Defective Title. If Seller is unable to give title or to make
conveyance, or to deliver possession of the Project, or to satisfy all of the
terms and conditions precedent to closing as set forth in this Agreement, all
as herein stipulated, or if on the scheduled Closing date the Project does not
conform with the provisions hereof, Buyer may elect, by written notice given to
Seller on or before the Closing, either (a) to take title as provided in
Section 13.02 (b) to extend, without any additional cost or expense to Buyer,
the scheduled Closing to the fifth (5th) business day after the date of
satisfaction of such condition without any additional cost or expense to Buyer
during which period Seller shall remove all encumbrances, if any, which secure
the payment of money, including, but not limited to, attachments and liens, and
Seller shall use reasonable efforts to remove all other defects in title in
accordance with Section 1.02(c), and to deliver possession and satisfy all
conditions to Closing as provided herein, and to make the Project conform to
the provisions herein, as the case may be, or (c) to terminate this Agreement
as provided in Section 13.03.
13.02 Buyer's Election. Buyer shall have the right to elect, in its
sole discretion, at the Closing, as originally scheduled or as extended
pursuant to Section 13.01, to accept such title as Seller can deliver to the
Project in its then condition and to pay therefor the Purchase Price reduced by
the sum of an amount equal to the sums required to remove all mortgages, liens
or encumbrances which secure the payment of money and that do not constitute
Permitted Exceptions.
50
51
13.03 Seller's Default. If at the Closing, as originally scheduled
or as extended pursuant to Section 13.01 Seller is unable to give title or to
make conveyance, or to deliver possession of the Project, or to satisfy all of
the terms and conditions precedent to Closing as set forth in this Agreement,
all as herein stipulated, or if on such date the Project does not conform with
the provisions hereof, and Buyer does not elect to take title as provided in
Section 13.02 Seller shall be in default under this Agreement and the Deposit
shall be forthwith returned to Buyer, and Buyer may pursue the right to compel
specific performance and the right to collect its costs and expenses incurred
in connection therewith.
13.04 Buyer's Default. The parties acknowledge that in the event of
Buyer's failure to fulfill its obligations hereunder it is impossible to
compute exactly the damages which would accrue to the Seller in such event.
The parties have taken these facts into account in setting the amount of the
Deposit, required pursuant to Section 2.02, and hereby agree that: (i) such
amount is the pre-estimate of such damages which would accrue to Seller from a
default by Buyer; (ii) such amount represents damages and not any penalty
against Buyer; and (iii) if this Agreement shall be terminated by Seller by
reason of Buyer's failure to fulfill Buyer's obligations hereunder, the Deposit
shall be Seller's full and liquidated damages in lieu of all other rights and
remedies (including the right of specific performance) which Seller may have
against Buyer at law or in equity. Seller's sole and exclusive remedy for
Buyer's default shall be to receive the Deposit as liquidated damages in lieu
of all other rights and remedies which Seller may have against Buyer at law or
in equity. Seller hereby
51
52
waives and releases all other claims for damages and other remedies against
Buyer for non-performance and expressly acknowledges and agrees that in no
event shall any officer, director or shareholder of Buyer ever have any
liability hereunder.
SECTION 14
BROKERAGE FEES
14.01 For the Seller. The Seller represents and warrants that it
has not engaged any broker or finder or incurred any liability for brokerage
fees, commissions or finder's fees in connection with the transactions
contemplated by this Agreement. The Seller agrees to indemnify and hold
harmless the Buyer against any claims or liabilities asserted against Buyer by
any person acting or claiming to act as a broker or finder in connection with
the transaction described in this Agreement.
14.02 For the Buyer. The Buyer represents and warrants that it has
not engaged any broker or finder or incurred any liability for brokerage fees,
commissions or finder's fees in connection with the transactions contemplated
by this Agreement. The Buyer agrees to indemnify and hold harmless the Seller
against any other claims or liabilities asserted against it by any person
acting or claiming to act as a broker or finder on behalf of the Buyer.
52
53
SECTION 15
NOTICES
15.01 Effective Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if delivered
personally or sent by telecopy machine, Federal Express or other recognized
overnight courier, registered or certified mail, postage prepaid, addressed as
follows or to such other address of which the parties may have given notice:
To the Seller: Norfolk Commerce Center Limited Partnership
Xxxxx 000
000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Phone No.: 000-000-0000
Telecopy No.: 000-000-0000
With a copy to: Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
To the Buyer: Diversified Developers Realty Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Executive Vice-President and
Chief Operating Officer
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
53
54
To Escrow Agent: Commercial Title Group, Ltd.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000, Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall
be deemed to be effective: (a) one (1) business day after deposit with the
courier if sent by Federal Express or other recognized overnight delivery
service; or (b) upon receipt if accomplished by hand delivery or by telecopied
delivery. Either party may, from time to time, by notice in writing served upon
the other party, in the same manner as prescribed in this Section, designate a
different mailing address or a different or additional person to which all such
notices are thereafter to be addressed.
SECTION 16
MISCELLANEOUS PROVISIONS
16.01 Integration. This Agreement embodies and constitutes the
entire understanding between the parties with respect to the transaction
contemplated herein, and all prior agreements, understandings, representations
and statements, oral or written, are merged into this Agreement. Neither this
Agreement nor any provision hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the party
54
55
against whom the enforcement of such waiver, modification, amendment, discharge
or termination is sought, and then only to the extent set forth in such
instrument.
16.02 Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of, the Commonwealth of Virginia.
16.03 Captions. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Agreement or any of the provisions hereof.
16.04 Escrow Agent. Escrow Agent shall hold the Deposit in
accordance with the terms and provisions of this Agreement, subject to the
following:
(a) Escrow Agent undertakes to perform only such duties
as are expressly set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against Escrow Agent.
(b) Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes of any statement or
assertion contained in such writing or instrument, and may assume that any
person purporting to give any writing, notice, advice or instrument in
connection with the provisions of this Agreement has been
55
56
duly authorized to do so. Escrow Agent shall not be liable in any manner for
the sufficiency or correctness as to form, manner and execution, or validity of
any instrument deposited in escrow, nor as to the identity, authority, or right
of any person executing the same, and Escrow Agent's duties under this
Agreement shall be limited to those provided in this Agreement.
(c) Unless Escrow Agent discharges any of its duties
under this Agreement in a negligent manner or is guilty of willful misconduct
with regard to its duties under this Agreement, Seller and Buyer shall
indemnify Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or
other expenses, fees, or charges of any character or nature, which it may incur
or with which it may be threatened by reason of its acting as Escrow Agent
under this Agreement; and in such connection Seller and Buyer shall indemnify
Escrow Agent against any and all expenses including reasonable attorneys' fees
and the cost of defending any action, suit or proceeding or resisting any claim
in such capacity.
(d) If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about their
respective rights and obligations, or the propriety of any action contemplated
by Escrow Agent, Escrow Agent may, but shall not be required to, file an action
in interpleader to resolve the disagreement. Escrow Agent shall be indemnified
for all costs and reasonable attorneys' fees in its capacity as Escrow Agent
56
57
in connection with any such interpleader action and shall be fully protected in
suspending all or part of its activities under this Agreement until a final
judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and
have full and complete authorization and protection in accordance with the
opinion of such counsel. Escrow Agent shall otherwise not be liable for any
mistakes of fact or errors of judgment, or for any acts or omissions of any
kind, unless caused by its negligence or willful misconduct.
(f) The Escrow Agent may in its sole discretion resign by giving
thirty (30) days' written notice thereof to the Buyer and Seller. The Buyer
and Seller shall furnish to the Escrow Agent written instructions for the
release of the escrow funds and escrow documents in such event. If the Escrow
Agent shall not have received such written instructions, the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a successor
Escrow Agent, and upon such appointment deliver the escrow funds and escrow
documents to such successor.
16.05 Bind and Inure. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
57
58
16.06 Drafts. This Agreement shall not be binding or effective
until properly executed and delivered by both Seller and Buyer. The delivery
by Buyer to Seller of an executed counterpart of this Agreement shall
constitute an offer which may be accepted by the delivery to Buyer of a duly
executed counterpart of this Agreement and the satisfaction of all conditions
under which such offer is made, but such offer may be revoked by Buyer by
written notice given at any time prior to such acceptance and satisfaction.
16.07 Number and Gender. As used in this Agreement, the masculine
shall include the feminine and neuter, the singular shall include the plural
and the plural shall include the singular, as the context may require.
16.08 Attachments. If the provisions of any exhibit, schedule or
rider to this contract are inconsistent with the provisions of this Agreement,
the provisions of such schedule or rider shall prevail. The Exhibits attached
are hereby incorporated as integral parts of this Agreement.
16.09 Survival of Representations. All representations and
warranties made by the parties herein or in any instrument or document
furnished in connection herewith shall survive the Closing and any
investigation at any time made by or on behalf of the parties hereto for a
period of twelve (12) months from the Closing.
58
59
16.10 Dates. Whenever used herein, unless expressly provided
otherwise, the term "days" shall mean consecutive calendar days, except that if
the expiration of any time period measured in days occurs on a Saturday,
Sunday, legal holiday or other day when federal offices are closed in
Washington. D.C., such expiration shall automatically be extended to the next
business day.
16.11 Time of the Essence. Time is of the essence of this Agreement
16.12 Assignment. This Agreement may not be assigned by Buyer
without the prior Written consent of Seller.
16.13 Effective Date. The Effective Date of this Agreement shall be
the date on which the Escrow Agent acknowledges (by execution of the Joinder by
Escrow Agent) its receipt of a copy of this Agreement executed by both Seller
and Buyer and receipt of the Deposit. The execution hereof by Buyer shall
Constitute an offer by Buyer to Seller to purchase the Project on the terms and
conditions herein stated, which must be accepted by Seller on or before 5:00
p.m. on ___________, 1998 by the execution hereof by Seller. If Buyer's offer
is not timely accepted, this Agreement shall be thereafter null and void.
59
60
16.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first above written.
SELLER:
NORFOLK COMMERCE CENTER LIMITED
PARTNERSHIP, a Virginia limited partnership
By: COMMERCE PARK, INC. a Virginia
corporation, its General Partner
By:
--------------------------- ---------------------------------
Date Name:
Title:
BUYER:
DIVERSIFIED DEVELOPERS REALTY
CORPORATION, an Ohio corporation
By:
--------------------------- -----------------------------------------
Date Xxxxx X. Xxxxxx
Executive Vice President and Chief
Operating Officer
60
61
JOINDER BY ESCROW AGENT
Commercial Title Group, Limited, referred to in this Agreement as the
"Escrow Agent," hereby acknowledges that it received this Agreement executed by
Seller and Buyer on the ____ day of _____________, 1998, and accepts the
obligations of the Escrow Agent set forth herein. It further acknowledges that
it received the Deposit on the ______ day of _________, 1998. The Escrow Agent
hereby agrees to hold and distribute the Deposit in accordance with the terms
and provisions of this Agreement. It further acknowledges that it hereby
assumes all responsibilities for information reporting required under Section
6045(e) of the Internal Revenue Code.
COMMERCIAL TITLE GROUP, LIMITED
By:
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address:
---------------------------------------
---------------------------------------
61
