EXHIBIT 10.1
PURCHASE AGREEMENT
BETWEEN
COLUMBUS EAST JOINT VENTURE,
AN OHIO GENERAL PARTNERSHIP, AS SELLER
AND
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP, AS BUYER
PROPERTY: EASTLAND MALL, COLUMBUS, OHIO
TABLE OF CONTENTS
1. The Property................................................... 1
2. Purchase Price................................................. 2
3. Condition of Property.......................................... 3
4. Conveyance Documents........................................... 5
5. Title.......................................................... 6
6. Leases; REAs................................................... 7
7. Operations Prior to Closing.................................... 9
8. Warranties and Representations of Buyer........................ 9
9. Warranties and Representations of Seller....................... 10
10. Closing........................................................ 13
11. Expenses....................................................... 15
12. Prorations, Apportionments and Payments; Tenant Notices........ 16
13. Damage......................................................... 16
14. Eminent Domain................................................. 17
15. Possession..................................................... 17
16. Notices........................................................ 18
17. Remedies....................................................... 19
18. Broker Fees.................................................... 20
19. Termination.................................................... 20
20. Miscellaneous.................................................. 21
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LIST OF SCHEDULES
TO PURCHASE AGREEMENT
Schedule 1(a) Description of Land.................................................................... 1
Schedule 1(c) Included Personal Property............................................................. 1
Schedule 1(d) List of Leases......................................................................... 1
Schedule 1(e) List of Service Contracts.............................................................. 1
Schedule 1(g) List of Reciprocal Easement Agreements................................................. 1
Schedule 2(c) Form of Letter of Credit............................................................... 2
Schedule 3(e) List of Property Reports............................................................... 5
Schedule 4(a) Deed................................................................................... 5
Schedule 4(b) Assignment and Assumption of Leases.................................................... 5
Schedule 4(c) Xxxx of Sale and Assignment............................................................ 5
Schedule 4(d) Assignment and Assumption of Service Contracts......................................... 5
Schedule 4(e) Assignment and Assumption of REAs...................................................... 5
Schedule 6(d)(1) Form of Lessee Estoppel Certificate (Re: X.X. Xxxxxx Company, Inc.).................... 7
Schedule 6(d)(2) Form of REA Estoppel Certificate....................................................... 7
Schedule 9(c) Delinquency Tracking Report............................................................ 9
Schedule 9(d) List of Leasing and Brokerage Agreements............................................... 9
Schedule 9(g) List of Pending Litigation............................................................. 9
Schedule 12 Revenue and Expense Prorations, Allocations and Payments............................... 12
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of the
22nd day of October, 2003 (the "Effective Date"), by and between COLUMBUS EAST
JOINT VENTURE, an Ohio general partnership (the "Seller"), and GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Buyer")(each of Seller and Buyer are sometimes referred to individually as a
"Party" and collectively as the "Parties").
W I T N E S S E T H:
1. The Property. Upon and subject to the terms and conditions
contained herein, Buyer agrees to purchase from Seller, and Seller agrees to
sell to Buyer, the following (collectively, the "Property"):
(a) the land described on Schedule 1(a) attached hereto,
located in the City of Columbus, Franklin County, Ohio, together with all
easements, rights and privileges appurtenant thereto (the "Land");
(b) all improvements of every kind and description
located on the Land, including the regional enclosed mall shopping center known
as Eastland Mall (collectively, the "Building"), together with all building
fixtures and appurtenances located in, or affixed to, such improvements on the
Closing Date (as hereinafter defined), excepting trade fixtures owned by tenants
(collectively, the "Improvements");
(c) all equipment and other personal property owned by
Seller and located in, or affixed to, either the Building or other Improvements,
including the items identified on Schedule 1(c)(1) attached hereto
(collectively, the "Personal Property");
(d) all of Seller's right, title and interest as landlord
in and to each of the occupancy leases, specialty licenses, licenses and other
occupancy agreements encumbering the Land and Improvements as described on
Schedule 1(d) attached hereto, together with any new leases entered into prior
to the Closing Date and permitted under the terms of this Agreement
(individually, a "Lease" and collectively, the "Leases");
(e) all service and other contracts relating to the
operation or maintenance of the Land and Improvements (collectively, the
"Service Contracts"), a schedule of which is attached hereto as Schedule 1(e);
(f) except as otherwise set forth below, Seller's right,
title and interest in and to any intangible property owned by Seller and
currently used in the ownership or operation for the Property including, to the
extent of Seller's interest therein (if any), all of Seller's right, title and
interest in and to the trade name "Eastland Mall" (the "Trade Name"), any
telephone numbers associated with the Trade Name, plans and specifications,
surveys and operating manuals with respect to the management, promotion,
ownership, maintenance, use, occupancy and operation of
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the Property, all transferable permits, licenses, approvals, guarantees and
warranties, and all utility contracts or other rights relating to the ownership,
use or operation of the Property (collectively, the "Intangible Property");
(g) Seller's right, title and interest in and to all
reciprocal easements agreements ("REAs"), pertaining to the Property, a schedule
of which is attached hereto as Schedule 1(g); and
(h) all warranties, guarantees, permits, licenses,
architectural and engineering plans and reports and other documents owned by
Seller relating to the use, operation and maintenance of the Improvements
(collectively, the "Warranties and Documents").
2. Purchase Price.
(a) Buyer shall pay to Seller as the total purchase price
(the "Purchase Price") for the Property the sum of Thirty Million Two Hundred
Fifty Thousand Dollars ($30,250,000.00), which shall be payable in immediately
available U.S. federal funds as follows:
(i) Buyer shall, within one (1) Business Day (as
hereafter defined) following the Effective Date, deliver an initial cash deposit
or an irrevocable, unconditional sight draft Letter of Credit (as defined
below), at Buyer's option, in the amount of Three Hundred Thousand Dollars
($300,000.00) (the "Initial Deposit") to the Escrow Agent (as defined below);
(ii) Buyer shall, within one (1) Business Day
following the expiration of the Inspection Period (as hereinafter defined),
deliver to the Escrow Agent an additional cash deposit or an additional
irrevocable, unconditional sight draft Letter of Credit, at Buyer's option, in
the amount of Three Hundred Thousand Dollars ($300,000)(the "Additional
Deposit"; together with the Initial Deposit, collectively, the "Xxxxxxx Money");
and
(iii) The balance of the Purchase Price in the sum
of Twenty-Nine Million Six Hundred Fifty Thousand Dollars ($29,650,000.00) shall
be deposited with the Escrow Agent on the Closing Date, subject to the
adjustments and prorations hereinafter provided.
(b) For the purposes hereof, the term "Escrow Agent"
shall mean Flagler Title Company, 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xx. Xxxxx Xxxxxxx (000) 000-0000. Buyer
agrees to immediately cause First American Title Insurance Company (the "Title
Company") to issue to Seller and Buyer a so-called "insured closing letter",
providing, among other things, that the Escrow Agent shall also serve as the
duly authorized agent of the Title Company for purposes of this transaction. For
the purposes hereof, the term "Business Day" shall mean all ordinary business
days, excluding Saturday, Sunday and any day that is a national holiday in the
United States or State holiday in Ohio.
(c) For purposes hereof, the term "Letter of Credit"
shall mean an irrevocable, unconditional, clean letter of credit in the form
attached hereto as Schedule 2(c), that names the Escrow Agent as the sole
beneficiary, that is issued by a U.S. financial institution reasonably
acceptable to Seller, that has an expiration date not earlier than six (6)
months after the date of
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issuance, and that may be drawn upon within the City of West Palm Beach, Florida
or the City of Cleveland, Ohio by presentment of a sight draft by Escrow Agent.
If Buyer delivers any portion of the Xxxxxxx Money to Escrow Agent by Letter of
Credit, and if the escrow established hereunder continues to remain open for any
reason (including the pendancy of any dispute regarding the disbursement of the
Xxxxxxx Money) then, not later than thirty (30) days before the then scheduled
expiration date of such original Letter of Credit, Buyer shall amend, replace or
substitute such original Letter of Credit previously delivered to Escrow Agent
under this Paragraph 2 with a replacement letter of credit meeting the
requirements of this Paragraph 2, except that the expiration date shall be not
earlier than six (6) months after the expiration date of the original Letter of
Credit (a "Replacement Letter of Credit"). From time to time prior to the
earlier of the date the parties consummate the transactions contemplated by this
Agreement or the date of execution of any final, non-appealable judgment of a
court of competent jurisdiction that adjudicates the rights and obligations of
the parties under this Agreement, but not later than thirty (30) days before the
then scheduled expiration date of any Replacement Letter of Credit, Buyer shall
amend, replace or substitute such Replacement Letter of Credit with another
Replacement Letter of Credit meeting the requirements of this Paragraph 2,
except that the expiration date shall be six (6) months after the expiration
date of the then-current Replacement Letter of Credit. The original Letter of
Credit and each Replacement Letter of Credit are hereinafter referred to
individually as a "Letter of Credit," and collectively as the "Letters of
Credit."
(d) For purposes hereof, the term "Drawing Event" shall
mean the occurrence of any of the following: (i) if Buyer fails to obtain and
deliver to the Escrow Agent a Replacement Letter of Credit within the time
periods set forth in Paragraph 2(a) above; (ii) the receipt by Escrow Agent of
conflicting, inconsistent or unilateral demands by Buyer or Seller regarding the
disbursement of the Xxxxxxx Money to either Buyer or Seller; (iii) the receipt
by Escrow Agent of any notice by Seller that Buyer is in default under this
Agreement; or (iv) if at any time the Escrow Agent, in good faith, is in doubt
as to the action it should take with respect to the Letter(s) of Credit under
this Agreement. Notwithstanding any contrary provision in this Agreement, Seller
and Buyer hereby irrevocably authorize and direct the Escrow Agent to
immediately and completely draw upon any Letter(s) of Credit held by Escrow
Agent upon the occurrence of any Drawing Event, in which event the proceeds of
such Letter(s) of Credit shall be added to and become a part of the Xxxxxxx
Money and disbursed to Buyer or Seller, or otherwise credited towards the
Purchase Price, in the manner expressly provided in this Agreement.
(e) If Buyer has delivered a Letter of Credit to Escrow
Agent in respect of any portion of the Xxxxxxx Money, then, on or before the
Closing Date, Buyer shall deliver to the Escrow Agent in cash or immediately
available federal funds an amount equal to the entire face amount of such
Letter(s) of Credit, which funds shall be added to and become a part of the
Xxxxxxx Money and credited to the Purchase Price or otherwise disbursed in
accordance with this Agreement. Upon delivery of such funds, the Letter(s) of
Credit shall be delivered to Buyer.
3. Condition of Property. (a) Buyer acknowledges and agrees that,
subject to the provisions of subparagraph 3(b) hereof, and except as otherwise
set forth in this Agreement, (i) Seller has made no representation or warranty
whatsoever, express or implied, as to the condition, quantity or quality of the
Property, or any portion thereof, and (ii) Buyer agrees to
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accept the Property and all portions thereof in "AS IS" condition, subject to
ordinary wear and tear. Buyer acknowledges that Buyer has the opportunity,
pursuant to subparagraph 3(b) hereof, to inspect the Property, including the
right to perform environmental site assessments and to examine the physical
condition and state of repair of the Property, including all Improvements,
fixtures, machinery, apparatus and equipment located thereon. Without limiting
the generality of the foregoing, Buyer has not relied on any representations or
warranties, and neither Seller nor any of its agents or representatives has made
or is willing to make any representations or warranties, express or implied,
other than as may be expressly set forth herein, as to (1) the Leases; (2) the
Service Contracts; (3) the availability of any financing for the purchase,
alteration, rehabilitation or operation of the Property from any source; (4) the
current or future use of the Property; (5) the present and future condition and
operating state of any and all machinery or equipment on the Property and the
present or future structural and physical condition of any Improvement or its
suitability for rehabilitation or renovation; (6) the compliance of the Property
with any federal, state or local environmental laws or regulations; (7) the
presence or absence of any laws, ordinances, rules or regulations issued by any
governmental authority, agency or board and any violations thereof; (8) the
rents, income, expenses or operation of the Property; or (9) the zoning
classification of the Property.
(b) Buyer shall have the right, at Buyer's sole cost and
expense and upon prior reasonable written notice to Seller, to enter on the
Property from and after the Effective Date until not later than 5 p.m. on
December 12, 2003 (the "Inspection Period"), for the purpose of making such
inspections and studies of the Property as Buyer deems necessary or desirable
and to examine at such place or places at the Property, in the offices of the
property manager or elsewhere as the same may be located, any operating files
maintained by Seller in connection with the leasing, current maintenance and/or
management of the Property, including, without limitation, the Leases, lease
files, Service Contracts, insurance policies, bills, invoices, receipts and
other general records relating to the income, expenses and condition of the
Property, correspondence, surveys, plans and specifications, warranties for
services and materials provided to the Property, environmental audits and
similar materials, financial projections, budgets, appraisals, accounting and
property tax records and all other similar or related information with respect
to the leasing, current maintenance and/or management of the Property, subject
to the provisions set forth herein. Such physical inspection may include
invasive testing only with the Seller's written approval, which approval shall
not be unreasonably withheld or delayed. Any invasive testing shall be conducted
in accordance with standards customarily employed in the industry and in
compliance with all governmental laws, rules and regulations and the Leases.
Seller shall reasonably cooperate with Buyer in its due diligence but shall not
be obligated to incur any liability or expense in connection therewith. Buyer
also agrees that, in exercising the foregoing rights to inspect the Property,
(i) Buyer shall provide reasonable advance notice to Seller prior to inspecting
the Property or attempting to contact any tenants at the Property or owners of
any department stores at Eastland Mall, (ii) the inspection of leased areas
shall be subject to any prior notification requirements under existing leases,
and to the extent applicable, any prior notification requirements under the
REAs, (iii) Buyer shall not attempt to engage in communication with any tenants
or owners of any department stores at Eastland Mall or inspect the Property
unless a representative of Seller is afforded the opportunity to be present or
to otherwise participate in such communication, and (iv) Buyer shall not
interfere with the business
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or operations of any tenant under the Leases. Buyer shall have the right, as its
sole course of action, to terminate this Agreement, for any reason or for no
reason, in Buyer's sole discretion, by delivering written notice to Seller in
accordance with the provisions of Paragraph 16 hereof prior to 3:00 P.M. Eastern
Standard Time on the last day of the Inspection Period, and if such notice is
not received by Seller by such time, Buyer shall be deemed to have waived its
right to terminate pursuant to this subparagraph 3(b). In the event of a
termination as described in this subparagraph 3(b), the provisions of Paragraph
19 below shall apply.
(c) Buyer agrees to repair any damage caused to the
Property in connection with the exercise of its inspections hereunder, and
further hereby indemnifies and agrees to defend and hold harmless the Seller
from and against all liability, loss, damage and expense (including attorney's
fees) arising from the inspection of the Property by Buyer or its agents or
consultants. The provisions of this Paragraph shall survive the Closing (as
hereinafter defined) and the delivery of the Deed hereunder or the termination
of this Agreement without the occurrence of Closing.
(d) Prior to Buyer's execution of this Agreement, Seller
has delivered or made available to Buyer for its review copies of the Leases and
the Service Contracts, and Buyer hereby acknowledges its receipt of the Leases
and the Service Contracts. If Buyer shall not have elected to terminate this
Agreement pursuant to its right to do so during the Inspection Period as set
forth above, then on the last day of or before the end of the Inspection Period,
Buyer shall have the right to advise Seller in writing of any Service Contracts
that Buyer does not desire to assume at Closing. If Buyer shall not so notify
Seller, then Buyer shall assume all the Service Contracts. Upon Buyer's
instruction to do so, Seller shall send its notice of termination ("Service
Contracts Termination Notices") for each Service Contract so objected to by
Buyer to the extent permitted under the Service Contracts. If such Service
Contracts may properly be terminated prior to Closing, then such Service
Contracts shall be terminated and shall not be assumed by Buyer. Otherwise, such
Service Contracts shall be assumed by Buyer. Notwithstanding the foregoing,
Buyer and Seller agree that Buyer is not assuming any management agreements and
that any and all agreements for the management and/or leasing of the Property
(each, a "Management Agreement") shall be terminated as of or prior to Closing.
(e) Buyer acknowledges that Seller has delivered or made
available to Buyer for its review the environmental assessment documents and
engineering reports identified on Schedule 3(e) attached hereto (collectively,
the "Property Reports"). Buyer hereby acknowledges its receipt of the Property
Reports.
(f) Buyer acknowledges that Seller has delivered or made
available to Buyer for its review the REAs.
4. Conveyance Documents. (a) Seller shall convey to Buyer the
Land and the Improvements by limited warranty deed in the form of Schedule 4(a)
attached hereto (the "Deed").
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(b) Seller shall convey to Buyer all of Seller's right,
title and interest in the Leases by an Assignment and Assumption of Leases in
the form of Schedule 4(b) attached hereto (the "Assignment of Leases").
(c) Seller shall convey to Buyer all of Seller's right,
title and interest in the Personal Property and Warranties and Documents by Xxxx
of Sale and Assignment in the form of Schedule 4(c) attached hereto and made a
part hereof (the "Xxxx of Sale").
(d) Seller shall convey to Buyer all of Seller's rights
and interest in the Service Contracts by an assignment and assumption agreement
in the form of Schedule 4(d) attached hereto (the "Assignment of Service
Contracts").
(e) Seller shall convey to Buyer all of Seller's rights
and interest in the REAs by an assignment and assumption agreement in the form
of Schedule 4(e) attached hereto (the "Assignment of REAs").
5. Title. (a) It shall be a condition to Buyer's obligation to
consummate the transaction contemplated hereby that, upon the recording of the
Deed, the Title Company shall issue to Buyer its ALTA Owner's Policy of Title
Insurance (ALTA Form 1970/84), with an effective date and time as of the date
and time of the recording of the Deed (the "Title Policy") in the amount of the
Purchase Price, subject only to the Permitted Exceptions (defined below). Seller
agrees to deliver to the Title Company, on or prior to the Closing Date, an
affidavit to induce the Title Company to remove the standard mechanics' lien
exception from the Title Policy.
(b) Buyer acknowledges receipt of an ALTA Survey of the
Property dated September 8, 1998, prepared by EMHT Inc. (the "Existing Survey").
Buyer shall have the right, at Buyer's sole cost and expense, during the
Inspection Period, to obtain an updated ALTA "as built" survey of the Property
which meets current ALTA/ACSM requirements, certified to Seller, Buyer, its
lender, if any, and the Title Company which shall be sufficient for the Title
Company to remove the preprinted title exceptions related to survey matters (the
Existing Survey, as the same may be updated by Buyer, is herein referred to as
the "Survey").
(c) For the purposes hereof, the term "Permitted
Exceptions" shall mean (i) real estate taxes and assessments which are a lien
but not yet due and payable, (ii) building and zoning laws, ordinances and
regulations, (iii) public streets and rights of way, (iv) any other matters
which do not interfere with the operation of the Property as a shopping center,
and (v) any other matters disclosed on the Commitment (as defined below) or the
Existing Survey (or to the extent the Existing Survey is updated, the Survey)
and not objected to by Buyer as provided below.
(d) Promptly following the Effective Date, Seller shall
request that the Cleveland, Ohio office of the Title Company issue a Title
Commitment for the issuance of the Title Policy with respect to the Property
(the "Commitment"). The final Title Policy shall be issued by the Title Company
through the offices of Escrow Agent. If the Commitment or the Survey shows any
encumbrance or other matter affecting record title to the Property which is not
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a Permitted Exception and which is not acceptable to Buyer in its reasonable
discretion, or if any update of the Commitment prior to Closing shows any
encumbrance or other matter not previously reflected in the Commitment (a
"Defect"), Buyer shall provide written notice of such Defect to Seller within
ten (10) days after Buyer's receipt of the Commitment (or within ten (10) days
after Buyer's receipt of any update thereof prior to Closing). If Buyer does not
provide such notice within the time period set forth above, Buyer shall be
deemed to have approved of such matters disclosed in the Commitment (or any
update thereof prior to Closing) or the Survey, as the case may be.
(e) Following receipt of notice of a Defect, Seller shall
use commercially reasonable efforts to cure such Defect, but shall not be
required to initiate any litigation or commence any other legal proceeding or
expend any monies to cure any Defect, except Seller agrees to pay or bond off
any mechanics or similar monetary liens on Seller's interest in the Property (to
the extent the same arise from any act of Seller) up to Fifty Thousand Dollars
($50,000.00). If, within the thirty (30) day period following receipt of notice
of a Defect, (i) Seller does not cure or remove the Defect, or (ii) Buyer does
not waive the Defect by written notice to Seller, Seller shall not be liable to
Buyer for failure to cause the Title Policy to be issued as required herein and,
as Buyer's sole remedy for the Defect, Buyer may elect, by written notice given
to Seller and the Title Company within five (5) days after expiration of the
thirty (30) day period, to either (1) accept the Property subject to the Defect,
with no reduction in the Purchase Price and with the additional exception shown
in the Title Policy, or (2) terminate this Agreement, in which event the
provisions of Paragraph 19 below shall apply. If Buyer shall fail to give notice
of its election to Seller within such five (5) day period, Buyer shall be deemed
to have elected to proceed under subclause (1) of this subparagraph 5(e) and to
accept title to the Property subject to the Defect. The Closing Date shall be
extended as necessary to permit each of Seller and Buyer to exercise its rights
and perform its obligations within the time periods set forth in this Paragraph
5.
6. Leases; REAs. (a) Buyer shall not attempt to engage in
communication with any tenants under the Leases or owners of department stores
at Eastland Mall between the Effective Date and the Closing Date unless a
representative or agent of Seller is afforded the opportunity to be present or
to otherwise participate in such communication.
(b) Seller shall, on the Closing Date, transfer to Buyer,
by way of a credit against the Purchase Price, all tenant security deposits or
other deposits, if any, under the Leases (the "Security Deposits"). Buyer hereby
indemnifies Seller, and agrees to defend and hold Seller harmless from any and
all claims, demands or causes of action which may be asserted following the
Closing Date by tenants under the Leases relating to the Security Deposits to
the extent the Security Deposits are delivered or credited by Seller to Buyer.
(c) From and after the Effective Date and until the
Closing Date or the earlier termination of this Agreement, Seller will not,
without Buyer's prior written consent (which consent will not be unreasonably
withheld or delayed), enter into any new lease, or modify any existing Lease
(the foregoing are collectively called the "Additional Leases" and,
individually, an "Additional Lease"). Buyer agrees to respond to any request by
Seller for Buyer's consent to an Additional Lease within seven (7) days after
Seller's request. If Buyer has not responded to
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Seller's request within the seven (7) day period, Buyer will be deemed to have
consented to the Additional Lease for which Seller requested consent. If, prior
to the Closing Date, Seller enters into any Additional Leases as permitted
hereunder, then the term "Leases" thereafter will include such Additional
Leases.
(d) It shall be a condition to Buyer's obligation to
consummate the transaction contemplated hereby that, at or prior to Closing,
Seller shall provide to Buyer: (i) estoppel certificates from tenants of the
Property representing at least seventy-five percent (75%) of the total leased
space (the estoppels so required are herein referred to as the "Minimum Lessee
Estoppel Certificates") at the Property as of the date of Closing; and (ii) an
estoppel with respect to the REAs from each of Sears and Lazarus and any other
parties to the REAs. Promptly after the Effective Date, Seller shall (x) request
from the tenant under each of the Leases an estoppel certificate (collectively,
the "Lessee Estoppel Certificates" and, individually, a "Lessee Estoppel
Certificate"), each to be in the form as reasonably requested by Buyer's lender,
except with respect to X.X. Xxxxxx Company, Inc., which shall be in the form
attached as Schedule 6(d)(1), and shall request from each of Sears and Lazarus
and any other parties to the REAs an estoppel certificate (collectively, the
"REA Estoppel Certificates" and, individually, a "REA Estoppel Certificate"),
each to be in the form attached as Schedule 6(d)(2), except as otherwise
required by the terms of the Leases and the REAs (which may prescribe a
particular form of estoppel), and (y) exercise good faith efforts to obtain the
Lessee Estoppel Certificates and REA Estoppel Certificates prior to Closing.
Seller shall deliver to Buyer at Closing all Lessee Estoppel Certificates and
REA Estoppel Certificates, if any, which theretofore have been executed by a
tenant or a party to the REAs and delivered to Seller. Buyer agrees that any
failure or refusal by tenants to deliver a Lessee Estoppel Certificate or
failure or refusal by parties to the REAs to deliver an REA Estoppel Certificate
shall not constitute a breach of this Agreement. If the Minimum Lessee Estoppel
Certificates and the REA Estoppel Certificates are not furnished by the close of
business on December 17, 2003, then Buyer shall have the right, as its sole
course of action, exercisable by delivering written notice to Seller no later
than 2 p.m. E.S.T. on December 19, 2003, to terminate this Agreement, in which
event the provisions of Paragraph 19 below shall apply; and if Buyer does not so
terminate this Agreement, Buyer shall be deemed to have waived the foregoing
conditions and the Closing shall be consummated as otherwise provided in this
Agreement.
(e) Buyer hereby agrees to assume and pay any and all
leasing commissions and tenant improvement obligations, if any, with respect to
leases executed after the Effective Date that have been approved by Buyer in
accordance with this Agreement.
(f) It shall be a condition to Buyer's obligation to
consummate the transaction contemplated hereby that, at or prior to Closing,
Seller shall cause to be provided to Buyer, to the extent required by the terms
of each of the REAs, the consent of each party to the REAs to the Assignment of
REAs. Buyer agrees that any failure or refusal by parties to the REAs to deliver
such consent shall not constitute a breach of this Agreement. If such consent is
not furnished on or before December 17, 2003, then Buyer shall have the right,
as its sole course of action, exercisable by delivering written notice to Seller
not later than 2 p.m. E.S.T. on December 19, 2003, to terminate this Agreement,
in which event the provisions of Paragraph 19 below shall apply; and if Buyer
does not so terminate this Agreement, Buyer shall be deemed to have waived
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the foregoing conditions and the Closing shall be consummated as otherwise
provided in this Agreement
7. Operations Prior to Closing. Subject to provisions of
Paragraph 6 above, from and after the Effective Date and until the Closing or
the earlier termination of this Agreement, Seller shall conduct its business
involving the Property in the ordinary course, and during such period will:
(a) not transfer any of the Property or create on the
Property any easements, liens, mortgages, encumbrances or other interests that
would adversely and materially affect the use or value of the Property or
Seller's ability to comply with the terms of this Agreement without the prior
written consent of Buyer, which consent shall not be unreasonably withheld,
conditioned or delayed;
(b) not enter into any contracts or other commitments
regarding the Property (excluding Additional Leases, which are addressed in
Paragraph 6 above and other contracts entered into in the ordinary course of
Seller's business), without the prior written consent of Buyer, which consent
shall not be unreasonably withheld, conditioned or delayed; and
(c) keep in effect Seller's existing policies of public
liability and property and casualty coverage insurance insuring the Property.
8. Warranties and Representations of Buyer. Buyer hereby
represents and warrants to Seller as follows:
(a) Organization; Authority. Buyer is a duly formed and
validly existing limited partnership under the laws of the State of Delaware and
has made (or will make) all necessary filings to enable Seller to do business in
the State of Ohio. Buyer has the legal power, right and authority to enter into
this Agreement and to execute and deliver the instruments and documents
referenced herein, and to consummate the transaction contemplated hereby.
(b) Due Authorization; Binding Agreement; No Violation.
The execution, delivery and performance of this Agreement by Buyer has been duly
and validly authorized by all necessary action of Buyer, including approval by
the Board of Directors of Glimcher Properties Corporation. This Agreement has
been duly executed and delivered by Buyer and constitutes the legal, valid and
binding obligation of Buyer, enforceable against Buyer in accordance with the
terms hereof. To the best of Buyer's knowledge, neither the execution of this
Agreement nor the consummation by Buyer of the transactions contemplated hereby
will (i) conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default, or result in a termination of any
agreement or instrument to which Buyer is a party; (ii) violate any restriction
to which Buyer is subject; (iii) constitute a violation of any existing federal,
state or local law, ordinance, rule, regulation or order of which Buyer is
aware; or (iv) result in the creation of any lien, charge or encumbrance upon
the Property or any part thereof.
The representations and warranties set forth in subparagraphs 8(a) and 8(b)
shall survive the Closing and remain in effect without time limitation.
9
9. Warranties and Representations of Seller. Seller hereby
represents and warrants to Buyer as follows:
(a) Organization; Authority. Seller is a duly formed and
validly existing general partnership under the laws of the State of Ohio. Seller
has the legal power, right and authority to enter into this Agreement and to
execute and deliver the instruments and documents referenced herein, and to
consummate the transaction contemplated hereby.
(b) Due Authorization; Binding Agreement; No Violation.
The execution, delivery and performance of this Agreement by Seller have been
duly and validly authorized by all necessary action of Seller. This Agreement
has been duly executed and delivered by Seller, and constitutes the legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with
the terms hereof. To the best of Seller's knowledge, neither the execution of
this Agreement nor the consummation by Seller of the transactions contemplated
hereby will (i) conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default, or result in a termination of any
agreement or instrument to which Seller is a party; (ii) violate any restriction
to which Seller is subject; (iii) constitute a violation of any existing
federal, state or local law, ordinance, rule, regulation or order of which
Seller is aware; or (iv) result in the creation of any lien, charge or
encumbrance upon the Property or any part thereof.
(c) Leases. Schedule 1(d) lists each of the Leases
(including all amendments and modifications thereto) currently in effect with
respect to the Property. Seller has delivered, made available or will deliver or
make available to Buyer true and complete copies of the Leases (including all
amendments and modifications thereto). The Buyer acknowledges that Schedule 1(d)
does not list any subleases, concessions or license agreements that may have
been entered into by any tenants or subtenants. Except as set forth in Schedule
9(c)(as the same may be completed and/or updated within fourteen (14) days
following the Effective Date), Seller has not received written notice from any
tenant under a Lease, during the two (2) year period prior to the Effective
Date, asserting any defense, set-off or counterclaim with regard to its tenancy
or its Lease which remains pending as of the Effective Date. Except as set forth
in Schedule 1(d), there are no other Leases to which Seller is a party affecting
the Property. Except as set forth in Schedule 9(c), no monthly installments of
rent under any of the Leases have been prepaid for more than one month. Except
for any out-of-pocket payments required under a Lease to be paid by the landlord
thereunder to or for the benefit of the tenant thereunder which are in the
nature of tenant inducements, including specifically, without limitation, tenant
improvement costs, lease buyout costs, and moving, design, refurbishment and
club membership allowances pursuant to Leases or expansions or renewals ("Tenant
Inducement Costs") between the Effective Date and Closing which have been
approved by Buyer as set forth in Section 6(e), there are no Tenant Inducement
Costs for which Buyer shall become liable or that shall constitute a lien on the
Property after Closing.
(d) Lease Brokerage. Except as set forth on Schedule
9(d)(as the same may be completed and/or updated within fourteen (14) days
following the Effective Date), there are no lease brokerage agreements, leasing
commission agreements or other agreements providing for payments of any amounts
for leasing activities or procuring Tenants with respect to the Property
including Lease renewals, expansions or modifications.
10
(e) Service Contracts. Schedule 1(e) lists all of the
Service Contracts currently affecting the Property. Seller has delivered or made
available to Buyer true and complete copies of the Service Contracts (including
all amendments and modifications thereto).
(f) No Other Agreements. Except for the Leases, the
Service Contracts or as disclosed by this Agreement, the Title Commitment or as
otherwise disclosed to Buyer in writing during the Inspection Period, there are
no other material agreements affecting the Property which would be binding and
enforceable against Buyer following the Closing Date.
(g) Non-Foreign Status. Seller is not a "foreign person"
within the meaning of Section 1445(f) of the Internal Revenue Code (the "Code")
and is not a "foreign partner" within the meaning of Section 1446 of the Code.
(h) Legal Actions Regarding Property. To the best of
Seller's knowledge, there is no legal action pending before any court or
administrative agency relating to the Property that would adversely affect the
Property for its present use except as set forth on Schedule 9(h).
(i) No Violations. Seller has received no written notice,
during the two (2) year period prior to the Effective Date, from any public
authority asserting that the Property is not in compliance with applicable fire,
health, building, use, occupancy or zoning laws, which remains uncured and which
would have a material adverse effect on the use of the Property as currently
owned and operated.
(j) REAs. Schedule 1(g)(as the same may be completed
and/or updated within fourteen (14) days following the Effective Date) lists all
of the REAs, including all amendments, modifications and supplements, currently
affecting the Property. To the best of Seller's knowledge, the REAs are in full
force and effect and Seller has not received any written notice, during the two
(2) year period prior to the Effective Date, of default from any REA Party.
(k) Condemnation. Seller has received no written notice,
during the two year period prior to the Effective Date, of pending or threatened
condemnation proceedings relating to the Property.
(l) Insurance. Seller has received no written notice,
during the two year period prior to the Effective Date, from any insurance
company or board of fire underwriters of any defects or inadequacies in or on
the Property or any part or component thereof that would materially and
adversely affect the insurability of the Property or cause any material increase
in the premiums for insurance for the Property that have not been cured or
repaired.
(m) Taxes. No application or proceeding is pending for
the tax year 2002 or any prior period seeking any increase or reduction in taxes
or assessments for the Property.
(n) Financial/Operating Statements. To the best of
Seller's knowledge, the information contained in the "Financial Statements and
Additional Information for the Years Ended December 31, 2002 and 2001 and
Independent Accountants' Review Reports", dated March 31, 2003, prepared by
Deloitte & Touche, with respect to the Property and provided by
11
Seller to Buyer were accurate in all material respects as of the date specified
in such statements and accurately reflected the financial condition of the
Property at such time.
(o) Delivery of Environmental Reports. Seller has
delivered to Buyer or made available to Buyer all environmental reports in
Seller's possession with respect to the Property and all such reports are listed
in Schedule 3(e).
(p) New York Life Loan. Seller has received a letter,
dated September 24, 2003 (which has not been modified, amended or supplemented),
a true and correct copy of which has been delivered to Buyer, from New York Life
Insurance Company ("New York Life") which reflects New York Life's approval of
the transaction contemplated by the Letter of Intent and its agreement to
release its security interests encumbering the Property, subject to various
conditions, including (i) payment to New York Life of the greater of thirty
million dollars ($30,000,000.00) or the net proceeds of sale (the "Pay-Off
Amount") and (ii) the submission of a fully executed purchase agreement to New
York Life on or before October 24, 2003 (the "Release Letter").
(q) Ownership Interests in Seller. Seller is an Ohio
general partnership and the general partners of Seller are XX Xxxxxxxx East LLC,
which holds a 86.75% ownership interest and LWM Columbus East LLC, which holds a
13.25% ownership interest. XX Xxxxxxxx East LLC is an Ohio limited liability
company and Xxxxxx Realty Investors, LP holds a 93.762% interest in XX Xxxxxxxx
East LLC.
Seller agrees to furnish to Buyer at Closing a certificate ("Seller's Closing
Certificate") which will update the foregoing representations, subject to any
changes arising prior to the Closing Date. If Seller's Closing Certificate
discloses any new condition which materially and adversely affects the use or
value of the Property as a shopping center, then Buyer, as its sole course of
action, will have the right to terminate this Agreement upon delivery of written
notice to Seller, in which event the provisions of Paragraph 19 below shall
apply. Wherever reference is made in this Agreement to the best of "Seller's
knowledge," such reference shall be deemed to mean the actual knowledge of the
following officers or representatives of Seller: Xxxxxx X. Xxxxx, Executive Vice
President, Xxxxxxxx X. XxXxxxxx, Vice President and/or Xxxxxx X. Xxxxxxx, Vice
President. Seller's representations and warranties are subject to any matters
disclosed in the Lessee Estoppel Certificates and the REA Estoppel Certificates
or discovered by Buyer in its inspection and review of the Property during the
Inspection Period. Seller's liability to Buyer for any breach of the
representations and warranties of Seller under Paragraph 9(a) and 9(b) as of the
Effective Date or as of the Closing Date, as the case may be, shall survive the
Closing without time limitation; and Seller's liability to Buyer for any breach
of the representations and warranties of Seller under Paragraphs 9(c) through
9(q) as of the Effective Date or as of the Closing Date, as the case may be,
shall survive the Closing for a period of one (1) year thereafter. Buyer shall
have no right to assert any claim against Seller hereunder following the
expiration of such one (1) year period, except to the extent Buyer has delivered
to Seller, within such one (1) year period, written notice of such claim.
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10. Closing. (a) The closing of the transactions contemplated
hereby (the "Closing") shall take place on a date mutually agreeable to Seller
and Buyer not later than December 30, 2003.
(b) Seller and Buyer hereby appoint the Escrow Agent to
act as escrow agent for the Closing of this transaction. A signed counterpart of
this Agreement shall serve as the escrow instructions to the Escrow Agent,
subject to the provisions of its standard conditions for acceptance of escrow,
but only to the extent the same impose no additional obligations or liabilities
on the Parties hereto, and to the terms and conditions herein set forth (the
terms of this Agreement shall control in the case of any conflict) and subject
to any additional instructions by the Parties. If Flagler Title Company refuses
to sign this Agreement to evidence its acceptance as Escrow Agent, then the
Title Company shall serve as the Escrow Agent.
(c) On the Closing Date, and provided that Buyer
simultaneously performs its obligations hereunder, Seller shall deposit with the
Escrow Agent all of the items listed below, properly executed and acknowledged
by Seller, as applicable:
(i) the Deed;
(ii) the Assignment of Leases;
(iii) the Xxxx of Sale;
(iv) the Assignment of Service Contracts;
(v) the Assignment of REAs;
(vi) Seller's affidavit of non-foreign status, as
contemplated by Section 1445 of the Internal Revenue Code of 1986, as amended;
(vii) an executed copy of the Preliminary
Settlement Statement referred to in Paragraph 12 hereof;
(viii) any Lessee Estoppel Certificates and REA
Estoppel Certificates received by Seller;
(ix) a mechanic's lien affidavit in favor of the
Title Company pursuant to Paragraph 5(a) above;
(x) a letter, in form and substance reasonably
acceptable to Buyer, to each of the tenants under the Leases advising of the
sale of the Property pursuant to this Agreement and directing future rent
payments to Buyer;
(xi) a notice, in form and content reasonably
acceptable to Buyer, to each REA Party informing such REA Party of the sale of
the Property and of the assignment to Buyer of Seller's interest in, and
obligations under, the REAs and directing that all sums payable after Closing
under each of the REAs shall be paid as set forth in the notice;
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(xii) Seller's Closing Certificate;
(xiii) such evidence as the Title Company may
reasonably require as to evidence the authority of the person or persons
executing documents on behalf of Seller;
(xiv) possession and occupancy of the Property
together with any keys, electronic pass cards or devices to all entrance doors
and doors to equipment and utility rooms and vault boxes located in or related
to the Property;
(xv) evidence reasonably satisfactory to Buyer
that the Management Agreement shall be terminated as of or prior to Closing;
(xvi) evidence reasonably satisfactory to Buyer
that the Service Contracts not being assumed by Buyer shall be terminated as of
the dates set forth in the Service Contracts Termination Notices;
(xvii) evidence reasonably satisfactory to the
Title Company, Buyer and Seller of the release of the mortgage and all
instruments securing the New York Life Loan (as defined below) (or in lieu
thereof a pay-off letter acceptable to the Title Company from New York Life);
and
(xviii) all other documents or items required by the
terms of this Agreement.
(d) On the Closing Date, and provided that Seller
simultaneously performs its obligations hereunder, Buyer shall deposit with the
Escrow Agent all of the items listed below to Seller, properly executed by
Buyer, as applicable:
(i) the Assignment of Leases;
(ii) the Assignment of Service Contracts;
(iii) the Assignment of REAs;
(iv) the Purchase Price, subject to the
adjustments and prorations as hereinafter provided;
(v) an executed copy of the Preliminary
Settlement Statement referred to in Paragraph 12 hereof; and
(vi) all other documents or items required by the
terms of this Agreement.
(e) On the Closing Date, the Escrow Agent shall complete
this transaction by:
(i) causing the Deed, the Assignment of Leases
and Assignment of REAs (each marked for return to Buyer) to be filed for record
in the Franklin County Records;
14
(ii) issuing the Title Policy to Buyer;
(iii) charging Buyer and Seller for those costs
and expenses to be paid by each pursuant to this Agreement;
(iv) delivering the Pay-Off Amount (as defined
below) to New York Life;
(v) delivering to each Party the documents to be
delivered to Buyer and Seller, respectively, pursuant to this Agreement, and
disbursing the Purchase Price to Seller, after deducting any sums, charges and
prorations as required hereunder; and
(vi) preparing and forwarding to each Party one
signed copy of the Escrow Agent's Closing Statement (as hereinafter defined)
showing all of the receipts and disbursements of the escrow.
(f) If the Escrow Agent is unable to simultaneously
perform all of the instructions set forth above, it shall so notify Buyer and
Seller and retain all funds and documents in its possession pending receipt of
further instructions jointly issued by Buyer and Seller.
(g) Within fourteen (14) days after Closing, the Seller
shall deliver to such representatives of the Buyer as the Buyer may designate,
at the offices of the Buyer at 000 Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, hard copies
(originals, to the extent they exist) in their existing file folders (to the
extent they exist in such folders), and to the extent available in electronic
format on computer disk or other comparable storage medium, of the Leases, the
REAs, and the Service Contracts (to the extent assumed by Buyer), together with
such leasing and property files and records which are material in connection
with the continued operation, leasing and maintenance of the Property, all
documents, records and books of account, or copies thereof, relating to the
construction, ownership, management, leasing, occupancy and operation of the
Property which are in the possession of Seller or any agent performing
management or leasing responsibilities on behalf of Seller pursuant to a written
agreement with Seller (collectively, the "Seller Parties") on the Closing Date,
including original Leases and lease files, and ground leases, if any, to the
extent they exist in such folders and deliver to Buyer the reviewed financial
statements for the Property for the years 2000, 2001 and 2002. All of the
foregoing information described in this subparagraph 10(g) shall be referred to
collectively as the "Files". Buyer and Seller shall cooperate with each other
for a period of three (3) years after Closing in case of the need by either
Party to respond to any legal requirement, regulatory audit requirement, tax
audit, tax return preparation, audit of common area maintenance or other charges
assessed against Tenants prior to Closing or litigation threatened or brought
against either Buyer or Seller or other legitimate business reason, by allowing
the other party and its agents or representatives access, upon reasonable
advance notice (which notice shall identify the nature of the information sought
by such party), at all reasonable times to examine and make copies of any and
all Files, which right shall survive Closing.
11. Expenses. (a) Provided the Closing occurs pursuant to
Paragraph 10 hereof, Seller and Buyer shall each pay one-half of the following
costs and expenses of this transaction:
15
(i) all conveyance fees and transfer taxes arising from the sale of the Property
to Buyer; (ii) title examination fees, Title Commitment fees and the premium
charge for the Title Policy, except that Buyer shall pay for any title
endorsements requested by Buyer, and (iii) any escrow fees.
(b) Buyer shall pay any recording fees associated with
the recording of the Deed or other conveyance instruments, and shall also pay
for any updated survey that Buyer may elect to obtain with respect to the
Property.
(c) Seller shall pay any fees incurred in connection with
the pay-off of the Seller's mortgage lender for the Property.
(d) The Escrow Agent shall prorate real estate taxes and
assessments, both general and special ("Taxes"), on the Closing Date based upon
the latest available tax duplicate, subject to the readjustment provisions
referred to in Paragraph 12 below.
(e) Each Party shall bear its own legal expenses incurred
in connection with the negotiation, documentation and Closing of this
transaction.
(f) The Escrow Agent shall prepare and deliver to the
parties, prior to the Closing Date, a proposed escrow settlement statement
("Closing Statement") in reasonable detail reflecting the prorations and
adjustments to be made on the Closing Date pursuant to this Paragraph 11.
12. Prorations, Apportionments and Payments; Tenant Notices. (a)
The prorations for Taxes shall be adjusted as of the Closing Date following the
Closing Date directly by the parties in accordance with the provisions of
Schedule 12 attached hereto and made a part hereof (the "Proration
Instructions"). The Parties agree that Exhibit A to Schedule 12 shall be
prepared by Seller and submitted to Buyer within fourteen (14) days following
the Effective Date.
(b) Charges and payments under the Leases and the Service
Contracts, and prorations of all other charges and revenues relating to the
operation of the Property, shall be prorated directly between the parties in
accordance with the Proration Instructions.
(c) Seller shall prepare and deliver to Buyer, for its
review and approval prior to the Closing Date, a Preliminary Settlement
Statement reflecting the prorations contemplated by the Proration Instructions.
The Preliminary Settlement Statement as approved by the parties shall be
executed by Buyer and Seller.
13. Damage. (a) If, prior to Closing, the Improvements or any
portions thereof are totally or partially damaged by fire or other casualty
("Damage"), Seller shall deliver written notice thereof to Buyer. After the
occurrence of any Damage, the following provisions shall apply.
(b) Following any Damage, Seller shall have the right,
but not the obligation, to repair any Damage and restore the Property
substantially to the condition existing prior to the date of such Damage, in
which event the Closing Date shall be extended a reasonable time period to
permit Seller to complete such repairs and restoration.
16
(c) If Seller does not elect to repair and restore as
provided above, then Seller shall so notify Buyer in writing, whereupon Buyer
shall have the right, at its sole course of action, exercisable by written
notice given to the Seller within thirty (30) days after receipt of such notice
from Seller, to (i) terminate this Agreement, in which event the provisions of
Paragraph 19 below shall apply, or (ii) proceed to consummate the Closing, in
which event insurance proceeds from insurance policies held and maintained by
Seller and payable as a result of such damage shall be assigned to Buyer on the
Closing Date, and the Purchase Price shall be reduced by a sum equal to the
applicable deductible amount, if any, under any such insurance policy.
(d) During the period from the date of the casualty until
the Closing Date, Seller shall secure any damaged portion of the Improvements
and otherwise comply with applicable laws and requirements with respect to the
damaged area.
(e) Notwithstanding any provision of this Agreement to
the contrary, if the cost of repair of any casualty, as determined by a
contractor selected by Seller and reasonably acceptable to Buyer, exceeds Five
Million Dollars ($5,000,000), or if a department store is damaged and such
department store is not obligated to restore its building, then Buyer shall have
the right, exercisable by delivering written notice to Seller within thirty (30)
days following the date that either Party delivers written notice to the other
that Buyer has the right to terminate this Agreement by reason of the existence
of either of the conditions set forth in this Paragraph 13(e), to terminate this
Agreement, in which event the provisions of Paragraph 19 below shall apply. If
Buyer does not elect to terminate this Agreement as provided in this
subparagraph 13(e), then Buyer shall be deemed to have waived its termination
right hereunder.
14. Eminent Domain. If, prior to the Closing Date, all or any
portion of the Property shall be condemned or taken for a public or quasi-public
use (a "Taking") or is the subject of any action filed in a court of competent
jurisdiction for a Taking, Seller shall so notify Buyer in writing. If such
action results in a taking of any portion of the Building, then Buyer shall have
the right, as its sole course of action, exercisable only by written notice
given to Seller within seven (7) days after Seller advises Buyer in writing of
such Taking, to (i) terminate this Agreement, in which event the provisions of
Paragraph 19 below shall apply or (ii) proceed to consummate the Closing,
without diminution of the Purchase Price, except that (a) Seller shall be
obligated to convey to Buyer only such portion of the Property that has not then
been acquired by the condemning authority, and (b) the proceeds of any award or
compensation arising from such Taking, or the proceeds of any settlement of any
action filed for a Taking of all or any portion of the Property, to the extent
paid to Seller prior to the Closing Date, shall belong to Seller, and the amount
so received by Seller (without deduction of any expenses and fees incurred by
Seller in connection with such Taking) shall be deducted from the Purchase
Price, and Buyer shall pay the balance of the Purchase Price, if any, to Seller
on the Closing Date, and any proceeds of an award paid following the Closing
Date shall be paid to Buyer.
15. Possession. Possession of the Property shall be delivered by
Seller to Buyer on the Closing Date, subject to the rights of tenants under the
Leases and the Permitted Exceptions.
17
16. Notices. (a) All notices, requests and other communications
hereunder shall be in writing and shall be (i) personally delivered, (ii) sent
by a nationally recognized overnight delivery service (with evidence of
delivery), or (iii) sent by facsimile transmission with concurrent delivery by
nationally recognized overnight delivery service (with evidence of delivery),
addressed to the following addresses, or to such other address of which Seller
or Buyer shall have given notice to the other as herein provided:
If to Seller, to: Columbus East Joint Venture
c/o The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: President
Facsimile: 000-000-0000
With a copy to: The Xxxxxxx X. Xxxxxx Group
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
Facsimile: 000-000-0000
And a copy to: Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
If to Buyer, to: Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Xxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address as may be designated by either of the parties in a
written notice given in accordance with the provisions of this Paragraph 16.
18
(b) All such notices, requests and other communications
shall be deemed to have been sufficiently given and received for all purposes
hereof (i) on the date of delivery, if sent by personal delivery, (ii) on the
next Business Day following delivery by a nationally recognized overnight
delivery service or (iii) on the date of facsimile transmission, if delivered by
facsimile transmission with evidence of receipt and concurrent delivery of
notice by nationally recognized overnight delivery service as described above.
17. Remedies. (a) If Seller defaults in any obligation hereunder
to be performed by Seller prior to or at Closing or otherwise fails to
consummate this transaction on the Closing Date by reason of Seller's default
(and other than by reason of the default of Buyer or failure of any conditions
herein set forth), Buyer shall have the right, as its sole remedy, to either (i)
seek specific performance of Seller's obligations hereunder, or (ii) terminate
this Agreement upon written notice to Seller, in which latter event Escrow Agent
shall return the Xxxxxxx Money to Buyer and Buyer shall have the right assert a
claim for actual damages directly arising from such breach; provided, however,
that in the event Buyer asserts a claim for damages, the maximum damages to
which Buyer may be entitled shall not exceed the sum of Six Hundred Thousand
Dollars ($600,000.00). Notwithstanding that Buyer's actual damages would be
uncertain and difficult to ascertain, Buyer and Seller agree that the liquidated
damage sum of Six Hundred Thousand Dollars ($600,000.00) is fair and bears a
reasonable relationship to the damages that Buyer might sustain in the event of
Seller's failure to consummate the transaction under this Agreement. Buyer
acknowledges and agrees that no failure of any condition set forth in this
Agreement shall constitute a breach of covenant by Seller, or give rise to any
claim in favor of Buyer for damages, specific performance or otherwise against
Seller.
(b) Buyer acknowledges that, if Buyer defaults in any
obligation hereunder to be performed by Buyer prior to or at Closing or
otherwise fails to consummate the transaction contemplated by this Agreement on
the Closing Date by reason of Buyer's default (and other than by reason of the
default of Seller or failure of any condition herein set forth), Seller will
suffer significant damages by reason of such default, and the exact amount of
such damages are and will be difficult to ascertain with certainty. Buyer and
Seller agree that the Xxxxxxx Money shall constitute liquidated damages payable
to Seller for Buyer's default, which Xxxxxxx Money shall immediately be paid to
or drawn down and disbursed to Seller if Buyer fails to consummate this
transaction on the Closing Date by reason of Buyer's default (and other than by
reason of the default of Seller or failure of any condition herein set forth).
Notwithstanding that Seller's actual damages would be uncertain and difficult to
ascertain, Buyer and Seller agree that the liquidated damage sum is fair and
bears a reasonable relationship to the damages that Seller might sustain in the
event of Buyer's failure to consummate the transaction under this Agreement.
Buyer and Seller agree that the Xxxxxxx Money is not intended to be, and in no
event should be construed to be, a penalty, but is intended as fixed damages
agreed to by the parties as settlement of damages in advance. Seller hereby
agrees that its receipt of the Xxxxxxx Money in the event of Buyer's failure
under this Agreement is the sole and exclusive right or remedy that Seller has,
or may be entitled to exercise or pursue, against Buyer, whether at law or in
equity.
(c) If any default by either Party shall occur and the
other Party should incur expenses, including attorney's fees, in connection with
the enforcement of the terms and conditions of this Agreement, or the collection
of sums due hereunder, the defaulting Party shall
19
reimburse the non-defaulting Party upon demand for the reasonable expenses so
incurred. If any such expenses are not paid upon demand, the amount thereof
shall bear interest at a monthly rate of 1.5% from the date of demand through
and including the date of payment and the non-defaulting Party shall be entitled
to seek recovery of such reasonable expenses in any action brought by the
non-defaulting Party.
(d) No failure by either Party to insist upon strict
performance by the other Party of any provision hereof shall constitute a waiver
of strict performance thereof, and no express waiver shall be deemed to apply to
any other existing or subsequent failure of performance whether similar or
dissimilar.
(e) Except as expressly set forth herein to the contrary,
no delay or omission by either Party to exercise any right accruing to either
Party upon any such failure by the other Party shall impair any such right of
the non-failing Party or be construed as a waiver of such failure or any
acquiescence therein. Every remedy given under this Paragraph 17 or elsewhere in
this Agreement may be exercised by the Party to whom such remedy is given from
time to time and as often as such Party may deem expedient. Neither Party shall
be required to give any notice, other than such notice as may be required
pursuant to this Agreement or by applicable law, prior to the exercise of any
remedy reserved to such Party in this Agreement, nor shall the occurrence of any
event of force majeure operate to delay the time in which either Party is
entitled to exercise any such remedy.
18. Broker Fees. (a) Each of Seller and Buyer hereby represents
and warrants to the other that it has not dealt with any real estate broker or
agent in connection with this transaction other than Eastdil Realty Company,
L.L.C. ("Eastdil"). Seller covenants and agrees to pay to Eastdil any fee or
commission to which Eastdil may be entitled in connection with the transaction
contemplated by this Agreement.
(b) Each Party hereby indemnifies and agrees to defend
and hold harmless the other from and against any and all claims, costs or
expenses incurred by reason of the breach of its representations, warranties, or
covenants under this Paragraph 18. The provisions of this Paragraph 18 shall
survive the Closing and the delivery of the Deed hereunder or the termination of
this Agreement without the occurrence of Closing.
19. Termination. In the event of the termination of this Agreement
that, by the express terms of this Agreement, is governed by this Paragraph 19,
the Xxxxxxx Money and any other sums deposited by Buyer with the Escrow Agent
shall be returned to Buyer, all documents delivered into escrow shall be
returned by the Escrow Agent to the depositing Party, Buyer shall promptly
return to Seller any documents or reports or other due diligence items delivered
by Seller to Buyer, Buyer shall promptly provide Seller a copy of each report or
other due diligence items prepared for Buyer, and each Party shall pay any costs
theretofore incurred by it or for which such Party is responsible in accordance
with the terms hereof, whereupon neither Party shall have any additional
liability hereunder and this Agreement shall be terminated, except that the
indemnification provisions of subparagraph 3(c) above and the provisions of
subparagraphs 18(b) and 20(g) shall survive such termination and remain in
effect.
20
20. Miscellaneous. (a) This Agreement and the Schedules referred
to herein, all of which are attached hereto and made a part hereof, embody and
constitute the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, by and between
Buyer and Seller, are superseded and merged into this Agreement, and shall be
null, void and of no further force and effect from and after the Effective Date.
Except as may be specifically set forth in this Agreement, all of the terms,
provisions, representations, warranties and covenants contained in this
Agreement shall be merged in the Deed and shall not survive the Closing.
(b) None of the provisions hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the Party against which the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
(c) This Agreement shall be binding upon, and inure to
the benefit of, Seller and Buyer and their respective successors and permitted
assigns; provided, however, that Buyer shall not transfer or assign this
Agreement, or any of its rights or obligations hereunder, without the prior
written consent of Seller, which consent may be withheld in Seller's sole
discretion, and any attempt to do so without such consent shall be void and
confer no rights upon any third person. Notwithstanding the foregoing, Buyer
shall have the right to assign its interests in and to this Agreement to
Glimcher Realty Trust, a Maryland real estate investment trust ("GRT") or to any
entity that owns or is owned in whole or in part by Buyer or GRT, or to a
partnership in which Buyer, GRT or an affiliate of Buyer or GRT is a general
partner, provided that (i) Buyer shall give Seller written notice of such
assignment at least five (5) business days prior to Closing and (ii) no such
assignment shall release the named Buyer from any obligations under this
Agreement.
(d) This Agreement shall be governed by the laws of the
State of Ohio without respect to choice of law rules. Each Party hereby agrees
that neither this Agreement nor any memorandum or notice hereof shall be
recorded in any government land records. The parties hereby waive any right to
trial by jury. If either Party hereto shall commence litigation against the
other in connection herewith, the non-prevailing party in such action shall
reimburse the reasonable attorneys' fees of the prevailing party in such action.
If one Party prevails on certain claims but the other Party prevails on other
claims, the award of attorney fees shall be determined at the discretion of the
court.
(e) All Paragraph headings and other titles and captions
herein are for convenience only, do not form a substantive part of this
Agreement and shall not restrict or enlarge any substantive provisions hereof or
thereof. The term "including," when used in this Agreement, means "including,
without limitation," and shall be construed as a term of illustration, and not a
term of limitation. Whenever reference is made to a number of "days" in the
computation of time hereunder, such reference shall mean "calendar days" unless
otherwise indicated. Wherever any period of time is specified herein for the
taking of any action or the giving of any notice, the period shall be computed
by excluding the day upon which the period is specified to commence and
including the last day of the period specified. Whenever the time for
21
performance of an obligation occurs or expires on a day other than a Business
Day, the time for performance thereof shall be extended to the next Business
Day.
(f) Time is of the essence in the performance of each and
every term, condition and covenant contained in this Agreement.
(g) Buyer agrees not to disclose, without Seller's prior
written consent, the terms of this Agreement, or any of the Leases, Service
Contracts or other due diligence materials, including third-party reports,
received or obtained by Buyer in connection with this transaction (the "Due
Diligence Materials"), other than publicly available information, to any other
Party except (i) to Buyer's affiliates, attorneys, accountants, consultants,
employees, agents, prospective lenders and prospective investors, (ii) as may be
required in connection with any legal proceeding or law, and (iii) for
information which is in the public domain, and Buyer agrees to maintain the
confidentiality of such documents until the date that Buyer acquires title to
the Property. Buyer further agrees to return at Buyer's sole cost and expense
the Due Diligence Materials promptly to Seller in the event of the termination
of this Agreement without the occurrence of Closing.
(h) This Agreement may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall form a
single instrument. The execution of this Agreement by facsimile signature shall
be binding and enforceable as an original; provided, that any Party delivering a
facsimile document shall thereafter execute and deliver to the other Party an
original instrument, effective as of the date of the facsimile instrument, as
soon as reasonably possible thereafter.
(i) This Agreement shall not be construed more strictly
against one Party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties. If any one or more of
the provisions hereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein and this Agreement shall be enforced to the fullest extent not
prohibited by law.
(j) Buyer agrees that, so long as Seller performs its
obligations to be performed in connection with the Release Letter, any failure
or refusal by New York Life to accept the Pay-Off Amount in full satisfaction of
all sums owing from Seller to New York Life and to deliver the release by New
York Life of the mortgage and all other security instruments securing New York
Life's interest in the Property upon payment to New York Life of the Pay-Off
Amount shall not constitute a breach of this Agreement, but shall entitle Seller
to terminate this Agreement, exercisable by delivering written notice to Buyer
at any time prior to Closing, in which event the provisions of Paragraph 19
above shall apply.
[Remainder of page intentionally left blank]
22
IN WITNESS WHEREOF, Buyer and Seller have each caused this Agreement to
be duly executed as of the date first written above.
SELLER:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
BUYER:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By:________________________________
Name:______________________________
Title:_____________________________
23
The Escrow Agent hereby acknowledges receipt of this Agreement and agrees to
abide by the escrow instructions contained in this Agreement.
ESCROW AGENT:
FLAGLER TITLE COMPANY
By: _______________________________
Name:______________________________
Its:_______________________________
24
SCHEDULE 1(a)
DESCRIPTION OF LAND
Parcel No. 1
Situated in the City of Columbus, County of Franklin and State of Ohio, being in
Xxxxxxx 00, Xxxxxxxx 00, Xxxxx 00 Xxxxxxx Xxxxx, containing 39.017 acres of
land, more or less, part of said 39.017 acre tract being out of that 39.671 acre
tract of land as described in a Deed to Columbus East-Joint Venture, recorded in
Book 2715, Page 487 of Franklin County Records, and part of said 39.017 acre
tract being out of that 59.379 acre tract of land as described in a Deed to
Xxxxxx X. Xxxxxxxx recorded in Book 2734, Page 244 of Franklin County Records,
said 39.017 acre tract being more particularly described as follows:
Beginning, for reference, at a point in the centerline of Refugee Road, said
point being in the Northwesterly right of way of Interstate Route 270, a
Southeasterly corner of said 39.671 acre tract and the Southeasterly corner of
that 1.26 acre tract (Parcel No. 152 DWD) as described in a Deed to State of
Ohio, recorded in Book 3095, Page 345 of Franklin County Records; thence North
44 deg. 02' 05" East, with a Northwesterly right of way line of said Interstate
Route 270, the Southeasterly line of said 39.671 acre tract the Southeasterly
line of said 1.26 acre tract, a distance of 101.72 feet to the true point of
beginning, said point being the Northeasterly corner of said 1.26 acre tract, a
Northerly line of said Refugee Road; thence from said true point of beginning,
North 88 deg. 28' 30" West, with a Northerly line of said 1.26 acre tract, a
Northerly line of said Refugee Road, parallel with and 75 feet Northerly from
(as measured at right angles) the centerline of said Refugee Road, a distance of
526.65 feet to a Northwesterly corner of said 1.26 acre tract; thence South 1
deg. 31' 30" West, with a Westerly line of said 1.26 acre tract, a distance of
15 feet to a corner of said 1.26 acre tract, a Northerly line of said Refugee
Road; thence North 88 deg. 28' 30" West, with a Northerly line of said 1.26 acre
tract, a Northerly line of said Refugee Road, parallel with and 60 feet
Northerly from (as measured at right angles) the centerline of said Refugee
Road, a distance of 272.53 feet to a point in a Northwesterly line of said
39.671 acre tract, the Southeasterly line of that 0.600 acre tract of land, as
described in a Deed to Sears, Xxxxxxx and Co., recorded in Book 2715, Page 485
of Franklin County Records, the Northwesterly corner of said 1.26 acre tract,
the Northeasterly corner of than 0.66 acre tract (Parcel 152E-WD) as described
in a Deed to the State of Ohio, recorded in Book 3039, Page 102 of Franklin
County Records; thence North 44 deg. 02' 05" East, with the Southeasterly line
of said 0.600 acre tract, a Northwesterly line of said 39.671 acre tract, a
distance of 768.30 feet to a corner of said 39.671 acre tract, the Northeasterly
corner of said 0.600 acre tract; thence North 45 deg. 57' 55" West, with the
Northeasterly line of said 0.600 acre tract, the Northeasterly line of that
1.021 acre tract of land as described in a Deed to Sears, Xxxxxxx and Co.,
recorded in Book 2647, Page 229 of Franklin County Records, a Southwesterly line
of said 39.671 acre tract, a distance of 475 feet to the Northeasterly corner of
said 1.021 acre tract, a corner of said 39.671 acre tract; thence South 44 deg.
02' 05" West, with a Southeasterly line of said 39.571 acre tract, the
Northwesterly line of said 1.021 acre tract, a distance of 100 feet to a point
in the Northeasterly line of that 16.772 acre tract of land as described in a
Deed to Sears, Xxxxxxx and Co., recorded in Book 2485, Page 481 of Franklin
County Records, said point being a corner of said 39.671 acre tract, the
Northwesterly corner of said 1.021 acre tract; thence North 45 deg. 57'
25
55" West, with the Northeasterly line of said 16.772 acre tract, a Southwesterly
line of said 39.671 acre tract, a distance of 446 feet to a point in a
Southeasterly line of said 59.379 acre tract, said point being the Northwesterly
corner of said 39.671 acre tract, the Northeasterly corner of said 16.772 acre
tract; thence North 44 deg. 02' 05" East, with a Southeasterly line of said
59.379 acre tract, a Northwesterly line of said 39.671 acre tract, a distance of
127.56 feet to a point; thence North 45 deg. 57' 55" West, a distance of 125
feet to a point; thence North 44 deg. 02' 05" East, parallel with and 125 feet
Northwesterly from (as measured at right angles), the Southeasterly line of said
59.379 acre tract, a Northwesterly line of said 39.671 acre tract, the
Northwesterly line of that 0.793 acre tract of land (Tract 'A'), as described in
a Deed to Federated Department Stores, Inc., recorded in Book 2647, Page 226 of
Franklin County Records, a distance of 655.59 feet to a point; thence South 45
deg. 57' 55" East, a distance of 125 feet to a point in the Southeasterly line
of said 59.379 acre tract, the Northwesterly line of said 0.793 acre tract;
thence South 44 deg. 02' 05" West, with the Southeasterly line of said 59.379
acre tract, the Northwesterly line of said 0.793 acre tract, a distance of 41.83
feet to the Northwesterly corner of said 0.793 acre tract, the Northeasterly
corner of said 39.671 acre tract; thence South 45 deg. 57' 55" East, with the
Southwesterly line of said 0.793 acre tract, a Northeasterly line of said 39.671
acre tract, a distance of 318 feet to the Southwesterly corner of said 0.793
acre tract, a corner of said 39.671 acre tract; thence North 44 deg. 02' 05"
East, with the Southeasterly line of said 0.793 acre tract, a Northwesterly line
of said 39.671 acre tract, a distance of 208.68 feet to a Northeasterly corner
of said 39.671 acre tract; thence South 45 deg. 57' 55" East, with a
Northeasterly line of said 39.671 acre tract, a distance of 682 feet to the
Southwesterly corner of that 0.658 acre tract (Tract 'B') of land as described
in Book 2647, Page 226 of Franklin County Records, a corner of said 39.671 acre
tract; thence North 44 deg. 02' 05" East, with the Southeasterly line of said
0.658 acre tract, a Northwesterly line of said 39.671 acre tract, a distance of
434.51 feet to a point in the Westerly line of Xxxxxxxx Road, said point being
the Northwesterly corner of that 0.660 acre tract of land (Parcel No. 6-WD) as
described in a Deed to State of Ohio, recorded in Book 3095, Page 342 of
Franklin County Records, a Southwesterly corner of that 0.955 acre tract (Parcel
No. 5-WD) as described in a Deed to State of Ohio, recorded in Book 3030, Page
37 of Franklin County Records; thence South 1 deg. 30' 00" West, with the
Westerly line of said 0.660 acre tract and the Westerly line of that 0.62 acre
tract (Parcel No. 152-DWD-1) as described in a Deed to State of Ohio, recorded
in Book 3095, Page 345 of Franklin County Records, a Westerly line of said
Xxxxxxxx Road, parallel with and 75 feet Westerly from (as measured at right
angle) the centerline of Xxxxxxxx Road, the Easterly line of said 39.671 acre
tract, a distance of 739.59 feet to a point in the Northwesterly right of way
line of Interstate Route 270, a Southeasterly line of said 39.671 acre tract,
said point being the Southwesterly corner of said 0.62 acre tract; thence South
44 deg. 02' 05" West, with the Northwesterly right of way line of said
Interstate Route 270, a Southeasterly line of said 39.671 acre tract, a distance
of 956.76 feet to the true point of beginning and containing 39.017 acres of
land.
Parcel No. 2
Easements and Rights for the benefit of Parcel No. 1 as created by the Easement,
Restrictions and Operating Agreement, dated March 1, 1966, filed for record
March 2, 1966 and recorded in Book 2715, Page 519 of Franklin County Records; as
amended by the First Amendment to Easement, Restrictions and Operating
Agreement, dated March 15, 1966, filed for record June 22, 1966 and
26
recorded in Book 2742, Page 45 of Franklin County Records; as amended by the
Second Amendment to Easement, Restrictions and Operating Agreement, dated May
17, 1971, filed for record November 9, 1971 and recorded in Book 3189, Page 273
of Franklin County Records; as amended by Third Amendment to Easement,
Restrictions and Operating Agreement, dated September 30, 1974, filed for record
March 12, 1975 and recorded in Book 3454, Page 365 of Franklin County Records;
being the same easements and rights identified in the Purchase and Operating
Agreement by and among Federated Department Stores, Inc., Sears, Xxxxxxx & Co.
and Columbus East-Joint Venture, dated as of June 2, 1965; as amended by the
First Amendment to Purchase and Operating Agreement, dated as of February 7,
1966; as amended by Second Amendment to Purchase and Operating Agreement, dated
as of March 15, 1966; as amended by Third Amendment to Purchase and Operating
Agreement, dated as of May 17, 1971, filed for record November 9, 1971 and
recorded in Book 3221, Page 271 of Franklin County Records; as amended by Fourth
Amendment to Purchase and Operating Agreement, dated as of September 30, 1974,
filed for record March 12, 1975 and recorded in Book 3510, Page 303 of Franklin
County Records; as assigned by Assignment and Assumption of Operating Agreement,
dated as of July 29, 1988, filed for record August 26, 1988 and recorded in ORV
12166, Page E02 of Franklin County Records, for the purposes described in
Easement, Restrictions and Operating Agreement, as amended, over, under and
across the land as described in the above mentioned Easement, Restrictions and
Operating Agreement, as amended.
Parcel No. 3
Easement for the Benefit of Parcel No. 1, as created by The Party Wall
Agreement, dated September 1, 1966, filed for record July 11, 1967 and recorded
in Book 2824, Page 459 of Franklin County Records, for the purpose described in
said Party Wall Agreement, over, under and across the land as described in said
Party Wall Agreement, subject to the terms, provisions and conditions set forth
in said document.
Parcel No. 4
Easement for the Benefit of Parcel No. 1, as created by the Deed of Easement,
dated February 6, 1967, filed for record March 16, 1967 and recorded in Book
2796, Page 283 of Franklin County Records, for the purpose described in said
Deed of Easement for constructing, using, replacing and maintaining a sanitary
sewer, tributary connections and appurtenant work, over, under and across the
land as described in said Party Wall Agreement. Subject to the terms, provisions
and conditions set forth in said document.
27
SCHEDULE 1(c)
INCLUDED PERSONAL PROPERTY
[to be provided]
28
SCHEDULE 1(d)
LIST OF LEASES
[to be provided]
29
SCHEDULE 1(e)
LIST OF SERVICE CONTRACTS
1. ADT Security Systems dated February 11, 1997 and September 18, 1998
2. Cintas Corporation dated June 26, 2003
3. Dual Lite, Inc. dated March 10, 2003
4. Simplex Xxxxxxxx dated November 19, 2002
5. Illinois Roof Consulting Associates, Inc. dated April 4, 2003
6. Blue Chip 2000 Commercial Cleaning, Inc. dated October 24, 2002
7. GreenScapes Landscape Co. dated October 25, 2002
8. Xxxxx'x Lawncare, Inc. dated November 10, 2002
9. Wenger Temperature Control dated November 10, 2002
10. Xxxxxxx Xxxxxx dated February 27, 2003
11. Muzak dated December 1, 2002
12. Orkin Exterminating, Inc. dated April 1, 2003
13. Rentokil Tropical Plant Services dated December 26, 2002
14. The Water Works dated June 27, 2003
15. Xxxxxx Network System dated January 1, 2003
16. Security Services Agreement dated May 29, 2002
17. Exterior Security Patrol Agreement dated November 5, 2002
18. Pitney Xxxxx Credit Corporation dated May 2, 2003
19. Lake Business Products dated September 24, 2003
20. Xxxxxxxxx Paving, Inc. dated October 9, 2003
21. Contract Sweepers Co. dated October 9, 2003
22 Aramark dated September 7, 2000
22. Agreement for Security Service and Common Area Maintenance dated
November 13, 1998 (JCPenney)
23. Avaya dated January 1, 2003
30
SCHEDULE 1(g)
LIST OF RECIPROCAL EASEMENT AGREEMENTS
1. Purchase and Operating Agreement by and Among Federated Department
Stores, Sears, Xxxxxxx and Co. and Columbus East Joint Venture, dated
June 2, 1965; Memorandum of Purchase and Sale Agreement
2. First Amendment to Purchase and Operating Agreement, dated February 7,
1966
3. Easement, Restriction and Operating Agreement among Federated
Department Stores, Inc., Sears, Xxxxxxx and Co. and Columbus East Joint
Venture, dated March 1, 1966
4. First Amendment to Easement, Restriction and Operating Agreement, dated
March 15, 1966
5. Subordination Agreement by Northwestern Mutual Life Insurance Company
6. Second Amendment to Purchase and Operating Agreement, dated March 15,
1966
7. Third Amendment to Purchase and Operating Agreement, dated May 17, 1971
8. Second Amendment to Easement, Restriction and Operating Agreement,
dated May 17, 1971
9. Fourth Amendment to Purchase and Operating Agreement, dated September
30, 1974
10. Third Amendment to Easement, Restriction and Operating Agreement, dated
September 30, 1974
11. Assignment and Assumption Agreement, dated July 29, 1988
12. Exercise of Option to Extend X. X. Xxxxxx Lease for five (5) years
expiring on January 31, 1998, dated December 17, 1991
13. Fourth Amendment to Easement, Restriction and Operating Agreement,
dated December 15, 1994
14. Fifth Amendment to Purchase and Operating Agreement, dated December 15,
1994
31
SCHEDULE 2(c)
FORM OF LETTER OF CREDIT
LETTER OF
OUR CREDIT NO. ISSUE DATE EXPIRY DATE CREDIT AMOUNT
_______________ _____________ _____________ USD __________.00
BENEFICIARY: APPLICANT:
FLAGLER TITLE COMPANY GLIMCHER PROPERTIES LIMITED PARTNERSHIP
0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000 000 Xxxx Xxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxx 00000
ATTN: Xx. Xxxxx Xxxxxxx Attn: Xxxxxx X. Xxxxxxx
DEAR BENEFICIARY:
WE HEREBY ESTABLISH OUR IRREVOCABLE LETTER OF CREDIT IN YOUR FAVOR, AS
BENEFICIARY, WHICH IS AVAILABLE AGAINST PRESENTMENT OF:
1. THE BENEFICIARY'S DRAFT(S) DRAWN ON US AT SIGHT, DULY ENDORSED ON THE
REVERSE SIDE THEREOF, AND BEARING THE CLAUSE: "DRAWN UNDER
______________________________ LETTER OF CREDIT NUMBER ________."
2. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENTS, IF ANY, FOR
OUR ENDORSEMENT. (IF YOUR DEMAND REPRESENTS A PARTIAL DRAWING HEREUNDER, WE WILL
ENDORSE THE ORIGINAL CREDIT AND RETURN THE SAME TO YOU FOR POSSIBLE FUTURE
CLAIMS. IF, HOWEVER, YOUR DEMAND REPRESENTS A FULL DRAWING OR IF SUCH DRAWING IS
PRESENTED ON THE DAY OF THE RELEVANT EXPIRATION DATE HEREOF, WE WILL HOLD THE
ORIGINAL FOR OUR FILES AND REMOVE SAME FROM CIRCULATION.)
PARTIAL DRAWINGS ARE PERMITTED BUT SHALL NOT EXCEED THE FACE VALUE OF THIS
LETTER OF CREDIT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR
UNDERTAKING AND SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR
AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN
WHICH THIS LETTER OF CREDIT IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT
RELATES AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY
REFERENCE ANY DOCUMENT OR INSTRUMENT.
WE ENGAGE WITH YOU THAT ALL DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF
THIS LETTER OF CREDIT WILL BE DULY HONORED BY US IF DELIVERED TO
_____________________________ [INSERT NAME OF FINANCIAL INSTITUTION],
__________________, _______________, ___________ , ____________, [INSERT ADDRESS
OF FINANCIAL INSTITUTION] ATTENTION: LETTER OF CREDIT DEPARTMENT, PRIOR TO 3
P.M. ON OR BEFORE THE EXPIRATION DATE HEREOF.
32
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED HEREIN THIS LETTER OF CREDIT IS
SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS: (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500".
ALL INQUIRIES REGARDING THIS CREDIT SHOULD BE DIRECTED TO US AT OUR PHONE
NUMBERS AS FOLLOWS:___________________________.
SINCERELY,
____________________________ , A NATIONAL
BANKING ASSOCIATION
_________________________________
NAME:____________________________
TITLE:___________________________
33
SCHEDULE 3(e)
PROPERTY REPORTS
1. Foundation Investigation for Eastland Shopping Center dated October 5,
1965 prepared by Columbus Testing Laboratory, Inc.
2. Foundation Investigation for X. X. Xxxxxx dated July 21, 1966 prepared
by Columbus Testing Laboratory, Inc.
3. Level I Environmental Assessment of the Developer Parcel dated April
25, 1991 prepared by ERM-Midwest, Inc.
4. Phase II Environmental Assessment for Firestone Auto Service Centers
dated August 22, 1991 prepared by ERM-Midwest, Inc.
5. Final Report on Phase II Environmental Assessment for Firestone Auto
Service Centers revised September 11, 1991 prepared by ERM-Midwest, Inc.
6. Phase I Environmental Assessment of Eastland Mall Property dated July
1992 prepared by Xxxxx Xxxxxxx Environmental, Inc.
7. Phase I Environmental Site Assessment of Eastland Mall Property dated
August 1992 prepared by Xxxxx Xxxxxxx Environmental, Inc.
8. Phase I Environmental Assessment Update dated November 1, 1993 prepared
by ERM-Midwest, Inc.
9. Phase I Environmental Site Assessment of Eastland Mall dated September
1997 prepared by Environmental Resources Management
10. Asbestos Report dated June 25, 1998 prepared by The Xxxxxxx X. Xxxxxx
Group, Inc.
11. Property Condition Evaluation of Eastland Mall dated September 4, 1998
prepared for New York Life Insurance by EMG
12. 2002 Pavement Report performed by Xxxxx Xxxxxxxxxx of The Xxxxxxx X.
Xxxxxx Group, Inc.
34
SCHEDULE 4(a)
FORM OF DEED
LIMITED WARRANTY DEED
THIS LIMITED WARRANTY DEED is made this _____ day of December, 2003, by
COLUMBUS EAST JOINT VENTURE, an Ohio general partnership ("Grantor"), to
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having
a tax mailing address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Grantee").
WITNESSETH, that Grantor, for Ten Dollars ($10.00) and other good and
valuable consideration paid by Grantee, hereby grants, conveys and assigns, WITH
LIMITED WARRANTY COVENANTS, to Grantee, its successors and assigns, that certain
land located in the City of Columbus, County of Franklin and State of Ohio, and
more fully described on Exhibit A attached hereto and made a part hereof;
TOGETHER WITH all improvements thereon, and all rights, easements,
privileges and appurtenances belonging or appertaining thereto;
SUBJECT TO real estate taxes and assessments which are a lien but not
yet due and payable, building and zoning laws, ordinances and regulations,
public streets and rights-of-way, easements, and all other exceptions to title
appearing on Exhibit B attached hereto and made a part hereof.
(signatures follow immediately)
35
IN WITNESS WHEREOF, Grantor has duly executed this Quitclaim Deed the
day and year first above written.
SELLER:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of XX XXXXXXXX EAST LLC, an
Ohio limited liability company, the general partner in COLUMBUS EAST JOINT
VENTURE, an Ohio general partnership, who acknowledged that he did sign the
foregoing instrument for and on behalf of said limited liability company, as
general partner of such general partnership, and that the same was his free and
authorized act and deed as such officer, and the free act and authorized act and
deed of such limited liability company and such general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
Cleveland, Ohio, this _____ day of December, 2003.
_______________________________________
Notary Public
My commission expires:
This instrument prepared by:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
36
Exhibit A
Property Description
37
Exhibit B
Permitted Exceptions
38
SCHEDULE 4(b)
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES, made as of this ____ day of
_______________ 2002, by and between COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership, having an address at 00000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxx 00000 ("Assignor"), and GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000 ("Assignee").
RECITALS:
A. Assignor, as seller, and Assignee, as buyer, entered into that
certain Purchase Agreement (the "Purchase Agreement") relating to the sale of
the shopping center known as "Eastland Mall" in the City of Columbus, Franklin
County, Ohio, situated on land more particularly described on Exhibit A attached
hereto and made a part hereof.
B. The Eastland Mall is subject to various leases described on
Exhibit B attached hereto and made a part hereof (collectively, the "Leases").
C. Pursuant to the Purchase Agreement, Assignor desires to assign
its right, title and interest in and to each of the Leases to Assignee, and
Assignee desires to assume Assignor's right, title and interest in and to each
of the Leases, in connection with the aforementioned sale.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each of the parties hereto, Assignor and
Assignee do hereby agree as follows:
1. Assignment. Assignor hereby gives, grants, bargains, sells,
conveys, transfers and sets over unto Assignee, its successors and assigns, as
of the Effective Date (as hereinafter defined), all of Assignor's right, title
and interest in and to the Leases and any guarantees and other agreements
executed in connection therewith and any security deposits relating thereto.
2. Assumption. Assignee hereby accepts the foregoing assignment,
and in consideration thereof, hereby covenants and agrees that, on and after the
Effective Date, Assignee will assume, observe, perform, fulfill and be bound by
all of the terms, covenants, conditions and obligations under each of the Leases
and guarantees and each such other agreement executed in connection therewith,
and each such security deposit, which arise on and after the Effective Date and
are to be observed, performed and fulfilled by the landlord named therein on and
after the Effective Date in the same manner and to the same extent as if
Assignee were the landlord originally named therein.
39
3. Indemnification. (a) Assignor hereby indemnifies Assignee, and
agrees to defend and hold Assignee harmless from and against any and all
liability, loss, cost, damage and/or expense, including without limitation
reasonable attorneys' fees, which Assignee may or shall incur under or with
respect to the Leases by reason of any failure or alleged failure of Assignor to
have complied with or to have performed, before the Effective Date, the
obligations of the landlord thereunder which were to be performed before the
Effective Date.
(b) Assignee hereby indemnifies Assignor, and agrees to defend and
hold Assignor harmless from and against any and all liability, loss, cost,
damage and/or expense, including without limitation reasonable attorneys' fees,
which Assignor may or shall incur under or with respect to any of the Leases by
reason of any failure or alleged failure of Assignee to comply with or to
perform, on or after the Effective Date, all the obligations of the landlord
thereunder which are to be performed on and after the Effective Date.
4. Effective Date. The "Effective Date", as used herein, shall
mean the date upon which the Limited Warranty Deed conveying the Land from
Assignor to Assignee is filed for record with the Recorder of Franklin County,
Ohio.
5. Successors and Assigns. The terms and conditions of this
agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
6. Miscellaneous. This instrument may be executed in any one or
more counterparts, each of which, when so executed, will be deemed an original
document, and all such counterparts together shall constitute the same
instrument. This instrument shall be governed by the laws of the State of Ohio.
(signatures follow immediately)
40
IN WITNESS WHEREOF, the parties hereto have executed this instrument,
and have caused this instrument to be delivered so as to take effect on the day
and year first above written.
ASSIGNOR:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By:________________________________
Name:______________________________
Title:_____________________________
41
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of XX XXXXXXXX EAST LLC, an
Ohio limited liability company, the general partner in COLUMBUS EAST JOINT
VENTURE, an Ohio general partnership, who acknowledged that he did sign the
foregoing instrument for and on behalf of said limited liability company, as
general partner of such general partnership, and that the same was his free and
authorized act and deed as such officer, and the free act and authorized act and
deed of such limited liability company and such general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
Cleveland, Ohio, this _____ day of December, 2003.
_______________________________________
Notary Public
My commission expires:
STATE OF ________________ )
) SS:
COUNTY OF ______________ )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation, the sole general partner of GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, who acknowledged
that he did sign the foregoing instrument for and on behalf of said corporation,
and that the same was his free and authorized act and deed and the free and
authorized act and deed of such corporation and such limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
_________________, ________, this ____ day of _________________, 200__.
_______________________________________
Notary Public
My commission expires:
This instrument prepared by:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
42
EXHIBIT A
(to Assignment and Assumption of Leases and Security Deposits)
Description of Land
[to be provided]
43
EXHIBIT B
(to Assignment and Assumption of Leases and Security Deposits)
The Leases
[to be provided]
44
SCHEDULE 4(c)
FORM OF XXXX OF SALE AND ASSIGNMENT
XXXX OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that COLUMBUS EAST JOINT VENTURE, an
Ohio general partnership, having an address at 00000 Xxxxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxxx 00000 (the "Transferor"), for and in consideration of the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby sell, convey and
transfer to GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership, having an address at ___________________________________________
(the "Transferee"), its successors and assigns, (a) the Personal Property
(defined below) and (b) the Intangible Property (defined below). For the
purposes hereof, the term "Personal Property" shall mean all equipment and other
personal property owned by Transferor and located in, or affixed to, the
shopping center known as "Eastland Mall" and located at the intersection of
Xxxxxxxx Road and Refugee Road in the City of Columbus, Franklin County, Ohio,
more particularly described on Exhibit A attached hereto and made a part thereof
(the "Land"), including, but not limited to the items set forth on Exhibit B
attached hereto and made a part hereof. For the purposes hereof, the term
"Intangible Property" means, to the extent of Transferor's interest therein (if
any), all of Transferor's right, title and interest in and to any intangible
property owned by Transferor and currently used in the ownership or operation of
the Land including, Transferor's right, title and interest (if any) in and to
the trade name "Eastland Mall" (the "Trade Name"), any telephone numbers
associated with the Trade Name, plans and specifications, surveys and operating
manuals with respect to the management, promotion, ownership, maintenance, use,
occupancy and operation of the Land in the possession of Transferor, all
transferable permits, licenses, approvals, guarantees and warranties, and all
utility contracts or other rights relating to the ownership, use or operation of
the Land. The Personal Property and Intangible Property are hereinafter
collectively referred to as the "Property."
TRANSFEREE ACKNOWLEDGES THAT TRANSFEROR HAS MADE NO REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE CONDITION, QUANTITY, QUALITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, AND TRANSFEREE AGREES TO
ACCEPT THE PROPERTY AND ALL PORTIONS THEREOF IN ITS PRESENT CONDITION, "AS IS,"
ON THE DATE HEREOF, WITHOUT RECOURSE TO OR WARRANTY FROM TRANSFEROR.
(signatures follow immediately)
45
IN WITNESS WHEREOF, the Transferor and Transferee have executed this
instrument, and has caused this instrument to be delivered so as to take effect
this _____ day of December, 2003.
TRANSFEROR:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
TRANSFEREE:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By:________________________________
Name:______________________________
Title:_____________________________
46
EXHIBIT A
(to Xxxx of Sale and Assignment)
Description of Land
[to be provided]
47
EXHIBIT B
(to Xxxx of Sale and Assignment)
Included Personal Property
[to be provided]
48
SCHEDULE 4(d)
FORM OF ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, made as of this
____ day of ______________, 200___, by and between COLUMBUS EAST JOINT VENTURE,
an Ohio general partnership, having an address at 00000 Xxxxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxxx 00000 ("Assignor"), and GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, having an address at 000 Xxxx Xxx Xxxxxx,
Xxxxxxxx, Xxxx 00000 ("Assignee").
W I T N E S S E T H:
A. Assignor, as seller, and Assignee, as buyer, entered into that
certain Purchase Agreement (the "Purchase Agreement") relating to the sale of
the Shopping Center known as "Eastland Mall" in the City of Columbus, Franklin
County, Ohio, situated on land more particularly described on Exhibit A attached
hereto and made a part hereof.
B. Assignor or its agent has entered into certain contracts for
services and supplies relating to improvements located on the Property, which
contracts are described on Exhibit B attached hereto and made a part hereof
(collectively, the "Service Contracts").
C. Pursuant to the terms of the Purchase Agreement, Assignor desires to
assign its right, title and interest in and to each of the Service Contracts to
Assignee, and Assignee desires to assume Assignor's right, title and interest in
and to each of the Service Contracts.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each of the parties hereto, Assignor
and Assignee do hereby agree as follows:
1. Assignment. Assignor hereby assigns to Assignee, its successors and
assigns, as of the Effective Date (as hereinafter defined), all of Assignor's
right, title and interest in and to each of the Service Contracts, without
warranty from Assignor.
2. Assumption. Assignee hereby accepts the foregoing assignment and, in
consideration thereof, Assignee hereby covenants and agrees that, on and after
the Effective Date, Assignee will assume, observe, perform, fulfill and be bound
by all terms, covenants, conditions and obligations of each of the Service
Contracts which arise on and after the Effective Date and are to be observed,
performed and fulfilled by Assignor on and after the Effective Date, in the same
manner and to the same extent as if Assignee, instead of Assignor, were
originally named therein.
3. Indemnification. (a) Assignor hereby indemnifies Assignee, and
agrees to defend and hold Assignee harmless from and against any and all
liability, loss, cost, damage and/or expense, including without limitation
reasonable attorneys' fees, which Assignee may or shall
49
incur under any of the Service Contracts by reason of any failure or alleged
failure of Assignor to have complied with or to have fully performed, before the
Effective Date, all obligations on its part to have been performed, complied
with or discharged under any of the terms and conditions of any of the Service
Contracts which were to be performed by Assignor prior to the Effective Date.
(b) Assignee hereby indemnifies Assignor, and agrees to defend and hold
Assignor harmless from and against any and all liability, loss, cost, damage
and/or expense, including without limitation reasonable attorneys' fees, which
Assignor may or shall incur under or in connection with any of the Service
Contracts by reason of any failure or alleged failure of Assignee, as the
successor to Assignor, to comply with or to fully perform, on and after the
Effective Date, all obligations to be performed or complied with under any of
the terms and conditions contained in any of the Service Contracts.
4. Effective Date. The "Effective Date", as used herein, shall mean the
date upon which the Limited Warranty Deed conveying the Property from Assignor
to Assignee is filed for record with the Recorder of Franklin County, Ohio.
5. Successors and Assigns. The terms and conditions of this agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
6. Miscellaneous. This Agreement may be executed in any one or more
counterparts, each of which, when so executed, will be deemed an original
document, and all such counterparts together shall constitute the same
instrument. This instrument shall be governed by the laws of the State of Ohio.
(signatures follow immediately)
50
IN WITNESS WHEREOF, the parties hereto have executed this instrument,
and caused this instrument to be delivered so as to take effect on the day and
year first set forth written.
ASSIGNOR:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By:________________________________
Name:______________________________
Title:_____________________________
51
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of XX XXXXXXXX EAST LLC, an
Ohio limited liability company, the general partner in COLUMBUS EAST JOINT
VENTURE, an Ohio general partnership, who acknowledged that he did sign the
foregoing instrument for and on behalf of said limited liability company, as
general partner of such general partnership, and that the same was his free and
authorized act and deed as such officer, and the free act and authorized act and
deed of said limited liability company and such general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
Cleveland, Ohio, this _____ day of December, 2003.
______________________________________________
Notary Public
My commission expires:
STATE OF ________________ )
) SS:
COUNTY OF ______________ )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation, the sole general partner of GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, who acknowledged
that he did sign the foregoing instrument for and on behalf of said corporation,
and that the same was his free and authorized act and deed and the free and
authorized act and deed of such corporation and such limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
_________________, ________, this ____ day of _________________, 200__.
______________________________________________
Notary Public
My commission expires:
52
EXHIBIT A
(to Assignment and Assumption of Service Contracts)
Description of Land
[to be provided]
53
EXHIBIT B
(to Assignment and Assumption of Service Contracts)
Schedule of Service Contracts
[to be provided]
54
SCHEDULE 4(e)
FORM OF ASSIGNMENT AND ASSUMPTION OF REAs
ASSIGNMENT AND ASSUMPTION OF REAS
THIS ASSIGNMENT AND ASSUMPTION OF REAs, made as of this ____ day of
______________, 200___, by and between COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership, having an address at 00000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxx 00000 ("Assignor"), and GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000 ("Assignee").
W I T N E S S E T H:
A. Assignor, as seller, and Assignee, as buyer, entered into that
certain Purchase Agreement (the "Purchase Agreement") relating to the sale of
the Shopping Center known as "Eastland Mall" in the City of Columbus, Franklin
County, Ohio, situated on land more particularly described on Exhibit A attached
hereto and made a part hereof.
B. Assignor or its agent has entered into certain reciprocal easement
agreements and related supplemental agreements which are described on Exhibit B
attached hereto and made a part hereof (collectively, the "REAs").
C. Pursuant to the terms of the Purchase Agreement, Assignor desires to
assign its right, title and interest in and to each of the REAs to Assignee, and
Assignee desires to assume Assignor's right, title and interest in and to each
of the REAs.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each of the parties hereto, Assignor
and Assignee do hereby agree as follows:
1. Assignment. Assignor hereby assigns to Assignee, its successors and
assigns, as of the Effective Date (as hereinafter defined), all of Assignor's
right, title and interest in and to each of the REAs, without warranty from
Assignor.
2. Assumption. Assignee hereby accepts the foregoing assignment and, in
consideration thereof, Assignee hereby covenants and agrees that, on and after
the Effective Date, Assignee will assume, observe, perform, fulfill and be bound
by all terms, covenants, conditions and obligations of each of the REAs which
arise on and after the Effective Date and are to be observed, performed and
fulfilled by Assignor on and after the Effective Date, in the same manner and to
the same extent as if Assignee, instead of Assignor, were originally named
therein.
3. Indemnification. (a) Assignor hereby indemnifies Assignee, and
agrees to defend and hold Assignee harmless from and against any and all
liability, loss, cost, damage and/or expense, including without limitation
reasonable attorneys' fees, which Assignee may or shall incur under any of the
REAs by reason of any failure or alleged failure of Assignor to have complied
with or to have fully performed, before the Effective Date, the obligations on
its part to
55
have been performed, complied with or discharged under any of the terms and
conditions of any of the REAs which were to be performed by Assignor prior to
the Effective Date.
(b) Assignee hereby indemnifies Assignor, and agrees to defend and hold
Assignor harmless from and against any and all liability, loss, cost, damage
and/or expense, including without limitation reasonable attorneys' fees, which
Assignor may or shall incur under or in connection with any of the REAs by
reason of any failure or alleged failure of Assignee, as the successor to
Assignor, to comply with or to fully perform, on and after the Effective Date,
the obligations on its part to be performed or complied with or discharged under
any of the terms and conditions contained in any of the REAs on or after the
Effective Date.
4. Effective Date. The "Effective Date", as used herein, shall mean the
date upon which the Limited Warranty Deed conveying the Property from Assignor
to Assignee is filed for record with the Recorder of Franklin County, Ohio.
5. Successors and Assigns. The terms and conditions of this agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
6. Miscellaneous. This Agreement may be executed in any one or more
counterparts, each of which, when so executed, will be deemed an original
document, and all such counterparts together shall constitute the same
instrument. This instrument shall be governed by the laws of the State of Ohio.
(signatures follow immediately)
56
IN WITNESS WHEREOF, the parties hereto have executed this instrument,
and caused this instrument to be delivered so as to take effect on the day and
year first set forth above.
ASSIGNOR:
COLUMBUS EAST JOINT VENTURE, an Ohio
general partnership
By: XX Xxxxxxxx East LLC, an Ohio limited
liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By:________________________________
Name:______________________________
Title:_____________________________
57
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of XX XXXXXXXX EAST LLC, an
Ohio limited liability company, the general partner in COLUMBUS EAST JOINT
VENTURE, an Ohio general partnership, who acknowledged that he did sign the
foregoing instrument for and on behalf of said limited liability company, as
general partner of such general partnership, and that the same was his free and
authorized act and deed as such officer, and the free act and authorized act and
deed of said limited liability company and such general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
Cleveland, Ohio, this _____ day of December, 2003.
_______________________________________________
Notary Public
My commission expires:
STATE OF ________________ )
) SS:
COUNTY OF ______________ )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________, the ________________ of GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation, the sole general partner of GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, who acknowledged
that he did sign the foregoing instrument for and on behalf of said corporation,
and that the same was his free and authorized act and deed and the free and
authorized act and deed of such corporation and such limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, at
_________________, ________, this ____ day of _________________, 200__.
_______________________________________________
Notary Public
My commission expires:
58
EXHIBIT A
(to Assignment and Assumption of REAs)
Description of Land
[to be provided]
59
EXHIBIT B
(to Assignment and Assumption of REAs)
Schedule of REAs
[to be provided]
60
SCHEDULE 6(d)(1)
FORM OF LESSEE ESTOPPEL CERTIFICATE
X. X. XXXXXX COMPANY, INC.
Premises: X.X. Penney Store #1255 - Columbus, Ohio (Eastland Shopping Center).
Lease, dated as of March 28, 1966 between COLUMBUS EAST-JOINT VENTURE, as
Landlord, and X.X. XXXXXX COMPANY, INC. (formerly known as X.X. PENNEY COMPANY),
as Tenant, a Memorandum of which dated as of March 28, 1966, was recorded on
July 21, 1966 in the Office of the Franklin County Recorder, Franklin County,
Ohio, in Volume 176, at Page 60.
Tenant hereby certifies to GLIMCHER PROPERTIES LIMITED PARTNERSHIP that:
1. The Lease is presently in full force and effect and unmodified except
by:
a. Agreement dated May 16, 1966;
b. Letter Agreement dated January 26, 1967;
c. Letter Agreement dated August 31, 1967;
d. Term Agreement dated December 29, 1967;
e. Letter Agreement dated September 4, 1968;
f. Unilateral Waiver Letter dated February 20, 1973;
g. Letter dated January 14, 1983;
h. Letter Agreement dated July 17, 1991;
i. Letter dated December 17, 1991;
j. Letter dated January 27, 1997; and
k. Letter dated April 9, 1997.
2. To the best of our knowledge, there is no present default on the part
of the Landlord.
3. No rent under the Lease has been paid more than 30 days in advance of
its due date; and that Tenant, as of this date, to the best of its
knowledge, has no charge, lien, or claim of offset under said Lease
against rents or other charges due or to become due thereunder except
as provided by the Lease terms.
It is further understood that Tenant, by giving and delivering this letter,
shall not be deemed to have waived Tenant's right to be reimbursed by Landlord
or Landlord's successor for any overpayments of common area charges or other
charges payable under the Lease which overpayments may now or hereafter be
revealed by an audit.
61
This Estoppel Letter shall be for the sole benefit of GLIMCHER PROPERTIES
LIMITED PARTNERSHIP and for no other party or entity, including the Landlord
under the Lease.
X. X. XXXXXX COMPANY, INC.
By: ______________________________
Vice President
Dated: December __, 2003
62
SCHEDULE 6(d)(2)
FORM OF REA ESTOPPEL CERTIFICATE - SEARS
December __, 2003
TO: Glimcher Properties
Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
RE: Sears Retail Store, Xxxx #0000
Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx
The undersigned, Sears, Xxxxxxx and Co., is a party to the following
agreements (the "Agreements") affecting the above referenced Shopping Center:
(a) Purchase and Operating Agreement dated June 2, 1965, by and
among Sears, Xxxxxxx and Co. ("Sears"), Federated Department
Stores, Inc. ("Federated"), and Columbus East-Joint Venture
("Developer");
(b) First Amendment to Purchase and Operating Agreement dated
February 7, 1966, by and among Sears, Federated and Developer;
(c) Easement, Restriction and Operating Agreement dated March 1,
1966, by and among Sears, Federated and Developer;
(d) Agreement dated March 1, 1966, by and among Sears, Federated
and Developer;
(e) Second Amendment to Purchase and Operating Agreement dated
March 1, 1966, by and among Sears, Federated and Developer;
(f) First Amendment to Easement, Restriction and Operating
Agreement dated March 15, 1966, by and among Sears, Federated
and Developer;
(g) Third Amendment to Purchase and Operating Agreement dated May
17, 1971, by and among Sears, Federated and Developer;
(h) Basic Agreement dated May 17, 1971, by and among Sears,
Federated, Developer, SCIT, Inc. and Xxxxxx X. Xxxxxxxx;
(i) Second Amendment to Easement, Restriction and Operating
Agreement dated May 17, 1971, by and among Sears, Federate and
Developer;
63
(j) Fourth Amendment to Purchase and Operating Agreement dated
September 30, 1974, by and among Sears, Federated and
Developer;
(k) Third Amendment to Easement, Restriction and Operating
Agreement dated September 30, 1974, by and among Sears,
Federated and Developer;
(l) Fourth Amendment to Easement, Restriction and Operating
Agreement dated December 15, 1994, by and among Sears,
Federated and Developer.
The undersigned hereby certifies as follows as of the date hereof:
1. The Agreements are in full force and effect and have not been amended,
except as stated above.
2. The undersigned has not received nor has the undersigned given any
notice of default pursuant to the terms of the Agreements.
This Estoppel Certificate is given solely for your information and may
not be relied upon by any other person or entity, nor shall it in any way create
any liability in, or provide any right of action against Sears, Xxxxxxx and Co.,
its officers, directors, agents, employees and representatives.
SEARS, XXXXXXX AND CO.
By: ________________________________
64
FORM OF REA ESTOPPEL CERTIFICATE - LAZARUS
December __, 2003
Glimcher Properties
Limited Partnership
000 Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Re: Xxxxxxx - Xxxxxxxx Mall
Columbus, Ohio
Property No. 080033
Gentlemen:
The undersigned, as successor by merger, is a party to that certain
Purchase and Operating Agreement dated as of June 2, 1965, by and among Columbus
East-Joint Venture ("Developer"), Sears, Xxxxxxx and Co. ("Sears") and Federated
Department Stores, Inc. ("Federated") and that certain Easement, Retirement and
Operating Agreement by and among Developer, Sears and Federated, dated as of
March 1, 1966, such documents having been amended, modified and supplemented by
the following documents:
1. Memorandum of Purchase and Operating Agreement dated June 2,
1965 among Developer, Sears and Federated;
2. First Amendment to Purchase and Operating Agreement dated as
of February 7, 1966 among Developer, Sears and Federated;
3. Second Amendment to Purchase and Operating Agreement dated as
of March 15, 1966 among Developer, Sears and Federated;
4. First Amendment to Easement, Restriction and Operating
Agreement dated as of March 15, 1966 among Developer, Sears
and Federated;
5. Second Amendment to Easement, Restriction and Operating
Agreement dated as of May 17, 1971 among Developer, Sears and
Federated;
6. Third Amendment to Easement, Restriction and Operating
Agreement dated as of September 30, 1974 among Developer,
Sears and Federated;
7. Third Amendment to Purchase and Operating Agreement dated as
of May 17, 1971 among Developer, Sears and Federated;
65
8. Fourth Amendment to Purchase and Operating Agreement dated as
of September 30, 1974 among Developer, Sears and Federated;
9. Basic Agreement dated as of May 17, 1971 by and among Sears,
Developer, Federated, SCIT, Inc. and Xxxxxx X. Xxxxxxxx;
10. Assignment and Assumption of Operating Agreement dated as of
July 29, 1988 between Federated Department Stores, Inc. and
Lazarus Real Estate II, Inc.;
11. Fourth Amendment to Easement, Restriction and Operating
Agreement dated as of December 15, 1994 among Lazarus Real
Estate, Inc. ("Lazarus"), Sears and Developer;
12. Fifth Amendment to Purchase and Operating Agreement dated as
of December 15, 1994 among Lazarus, Sears and Developer; and
13. Any matter appearing of public record in the jurisdiction
where the real estate identified above is located.
(and as so amended, modified, or supplemented being herein called the "REA").
The undersigned hereby certifies to you, that, as of the date hereof:
1. The undersigned has entered into no other amendment,
modification or supplement to the REA with Developer, and the
REA is in full force and effect.
2. To the best of the undersigned's knowledge, Developer is not
in default in the performance of any covenant, agreement or
condition contained in the REA, the REA.
3. No prepayments of any charges under the REA have been made for
more than one (1) month in advance of their due dates.
The foregoing certifications shall not be deemed to be an affirmative
representation, warranty or covenant and shall in no event subject the
undersigned to any liability whatsoever, the sole effect of the same being to
estop the undersigned from taking a position against any recipient which is
inconsistent with the statements contained in this estoppel letter to the extent
such recipient (a) did not have knowledge of facts contrary to those contained
herein and (b) reasonably relied upon the certifications contained herein.
Furthermore, this estoppel letter shall not be deemed a consent to any
assignment, sale, encumbrance, or transfer if the REA requires any such consent,
nor shall this estoppel letter be deemed a waiver of any requirements imposed by
the REA on Developer and those claiming through Developer in connection with any
past, present or future assignment, sale, encumbrance or transfer.
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Notwithstanding anything contained in this certificate to the contrary,
the undersigned reserves any audit or other rights it may have under the terms
of the REA or by law relating to, without limitation, taxes or common area
maintenance costs, and the right to assert any claim based thereon.
This estoppel letter shall only apply to the store referenced above,
which is governed by the above referenced documents, and shall not apply to any
other store of the undersigned or of any of its affiliates. The certifications
herein contained are conditioned upon valid execution by Columbus East - Joint
Venture of an unmodified counterpart hereof and returning it to the undersigned
within thirty (30) days of the date hereof.
Failure of the undersigned to require strict compliance with the notice
provisions of the REA in connection with the request for this estoppel
certificate shall not be deemed a waiver of the future strict compliance with
said notice provisions as set forth in the REA.
Please note that the notice address for the undersigned for purposes of the REA
is:
Lazarus, Inc.
0 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Real Estate Department
with a copy to:
Lazarus, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chairman
LAZARUS, INC.
By:_______________________________
Xxxx X. Xxx
Vice President
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Columbus East-Joint Venture hereby certifies to Lazarus, Inc. that, to
its knowledge, as of the date hereof, the facts set forth in the certifications
above contained are true, complete and accurate and may be relied upon by
Lazarus, Inc., its successor and assigns.
COLUMBUS EAST JOINT VENTURE
By: THE XXXXXXX X. XXXXXX GROUP
By:___________________________
Xxxxxxx X. Xxxxxx
Its:__________________________
Assistant Secretary
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SCHEDULE 9(c)
Delinquency Tracking Report
[To be provided]
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SCHEDULE 9(d)
List of Leasing and Brokerage Agreements
1. Retail Management and Leasing Agreement, dated June 1, 2002, by and between
Seller and Xxxxx Xxxx La Salle Americas, Inc., a Maryland corporation.
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SCHEDULE 9(g)
List of Pending Litigation
Electronics Boutique Audit rights
(Dismissal being filed)
Lids Bankruptcy
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SCHEDULE 12
("Proration Instructions")
Terms that are capitalized but not defined in these Proration
Instructions shall have the meaning ascribed to them in the Purchase Agreement
to which these Proration Instructions are attached (the "Agreement").
Section 1. Prorations - General. All rents, revenues and other income
of the Property, if any, (collectively, "Rents"), and all utilities, real estate
taxes, maintenance charges and other regular operating expenses of the Property,
if any, (collectively, "Expenses"), shall be paid or shall be prorated between
Seller and the Buyer in accordance with the provisions set forth in Sections 2
through 7 inclusive. For purposes of the prorations and adjustments to be made,
the Buyer shall be deemed to own the Property and therefore shall be entitled to
any revenues and responsible for any expenses for the entire day upon which the
Closing occurs. As used herein, "Proration Date" means 11:59 p.m. on the date
preceding the Closing Date, such that Buyer is deemed to have owned the Property
the entire day upon which the Closing occurs. Seller and Buyer shall cause their
accountants to prepare the schedules of adjustments (the "Closing Statement")
prior to the Proration Date. Any net adjustment in favor of the Buyer shall be
paid in the form of a credit to the Purchase Price. Any net adjustment in favor
of the Seller shall be paid in cash or cash equivalent by Buyer to Seller at
Closing. A copy of the Closing Statement agreed upon by Seller and Buyer shall
be executed by both Seller and Buyer and delivered to the Title Company at the
Closing. All Rents received by Seller after the Proration Date shall be
immediately paid to Buyer. The following terms shall have the meanings set forth
below:
"Lease(s)" shall have the meaning set forth in the Agreement to which
this Schedule 12 is attached.
"Tenant" means any tenant under a Lease.
"Minimum Rent" means rent which is billed fixed rent under the then
current fiscal year under a Lease.
"Percentage Rent" means, to the extent applicable under a Lease,
percentage or overage rents.
"Additional Rent" means all other amounts to be paid by a Tenant under
a Lease (including amounts owed for real estate taxes and other assessments)
other than Minimum Rent or Percentage Rent.
Section 2. Prorations - Rents. Rents shall be prorated upon the Closing
in accordance with the following provisions.
(a) Minimum Rent. Subject to Subsection 2(d) below with respect to
Delinquent Rents, Minimum Rent shall be prorated between Seller and Buyer as of
the Proration Date on a per diem basis, based on the actual number of days in
the month during which the Closing occurs. Seller shall be entitled to all
Minimum Rent for the period up to and including the
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Proration Date, and Buyer shall be entitled to all Minimum Rent for the period
after the Proration Date.
(b) Additional Rental. Subject to Subsection 2(d) below with respect to
Delinquent Rents, and Section 6 with respect to the Closing Adjustments,
estimated monthly or quarterly payments made by Tenants of the Property, or
parties to the REAs, in advance based upon projected Additional Rents shall be
prorated between Seller and Buyer as of the Proration Date on an accrual basis
based on the actual number of days in the month during which the Closing occurs.
Seller shall be entitled to all Additional Rent which accrues up to and
including the Proration Date and Buyer shall be entitled to all Additional Rent
which accrues after the Proration Date.
(c) Percentage Rent. Percentage Rent (if any) payable by a tenant under
each Lease (a "Tenant") shall be separately prorated as of the Proration Date
between Seller and Buyer in the manner provided in this Subsection 2(c). Such
proration shall be made on a Lease-by-Lease basis and shall be based upon the
fiscal year set forth in each Lease for the determination of Percentage Rent.
The actual fiscal year for Percentage Rent during which the Closing occurs is
hereinafter referred to as the "Applicable Percentage Rent Fiscal Year". To the
extent a Tenant makes monthly or quarterly interim payments on account of
Percentage Rent, the Seller shall initially retain all such interim payments of
Percentage Rent received by the Seller up to and including the Proration Date
until a Closing Adjustment occurs and Buyer shall initially retain all such
interim payments of Percentage Rent received by Buyer after the Proration Date
until a Closing Adjustment occurs. At each Closing Adjustment, the Seller and
Buyer shall prorate the total annual Percentage Rent due from a Tenant for such
Tenant's Applicable Percentage Rent Fiscal Year as follows: (a) Seller shall be
entitled to the portion of the Percentage Rent payable by each Tenant equal to
the product obtained by multiplying the total annual Percentage Rent paid by
each such Tenant by a fraction, the numerator of which is the number of days in
the Applicable Percentage Rent Fiscal Year up to and including the Proration
Date and the denominator of which is the number of days in the Applicable
Percentage Rent Fiscal Year; and (b) the Buyer shall be entitled to the portion
of the Percentage Rent payable by each Tenant equal to the product obtained by
multiplying the total annual Percentage Rent paid by each such Tenant by a
fraction, the numerator of which is the number of days in the Applicable
Percentage Rent Fiscal Year after the Proration Date and the denominator of
which is the number of days in the Applicable Percentage Rent Fiscal Year.
(d) Delinquent Rents. As used herein, "Delinquent Rents" means Rents
which are due and payable by a Tenant on or prior to the Proration Date but
which have not been paid by the Proration Date. Delinquent Rents shall be
prorated between Seller and Buyer as of the Proration Date, but not until they
are actually collected by Buyer. Buyer shall have the right after the Closing to
collect Delinquent Rents relating to the period prior to the Proration Date, but
shall not be obligated to do so. Upon the Final Closing Adjustment (as defined
in Section 6 of this Schedule 12), any Delinquent Rents which have not as yet
been paid shall be assigned to Seller. After the Closing and continuing through
and after the Final Closing Adjustment, without the express written consent of
Buyer, the Seller shall not take, nor cause Buyer to take, any action against a
tenant owing Delinquent Rents which would affect such Tenant's right to occupy
its leased premises. Rents collected by Buyer after the Closing, shall be
applied in the following
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order of priority: (a) first, to the tenant's current rental obligation accruing
after Closing; and (b) secondly, against the Tenant's rental obligations in the
chronological order in which they accrue. Notwithstanding any provision to the
contrary in the Agreement or this Schedule, to the extent a Tenant expressly
designates that a payment is to be applied for a particular item of Rent, then
any such payment of Rent shall be applied in accordance with such designation so
specified by the Tenant. All Delinquent Rents received by Buyer or any of its
affiliates after the Proration Date shall be immediately applied in accordance
with the above and any amount owing to Seller shall be immediately paid upon
application; however, in no event later than thirty (30) days after collection.
Buyer shall, and shall cause its agents to, use commercially reasonable efforts
to collect any Deliquent Rent, but Buyer shall not be required to commence any
legal action or proceeding to collect such amounts. Buyer shall not waive or
settle any claims with respect to any such amounts relating to the period prior
to the Proration Date in whole or in part without Seller's prior written
consent.
(i) Seller shall have the right to commence litigation against
the Tenants owing Delinquent Rents (the "Delinquent Tenants") to
collect the Delinquent Rents, which pursuant to the above, the Seller
is entitled to as and when collected. Seller may proceed with counsel
of its own choosing, and at its own expense, to collect any such
Delinquent Rents due by the Delinquent Tenants which are allocable to
Seller, provided that Seller shall not seek (i) termination of any
Lease; (ii) eviction of any Delinquent Tenant; nor (iii) to levy
against the Delinquent Tenant's interests in the Lease, all without the
prior written consent of Buyer.
(ii) If a Delinquent Tenant owes Delinquent Rental which is
properly allocable to both Seller and Buyer, Seller and Buyer shall
cooperate in collecting such Delinquent Rental. If Seller desires to
commence litigation as to Delinquent Rents properly allocable to it,
but Buyer does not so desire to commence litigation, then Seller may
commence litigation as set forth in (i) above. If both parties desire
to commence litigation, Buyer shall institute such litigation on its
behalf and Seller's share of any recovery of the Delinquent Rents from
such litigation, after the payment of all expenses in connection
therewith, shall be apportioned between Buyer and Seller in accordance
with this Subsection 2(d).
Section 3. Proration - Taxes and Assessments. All non-delinquent real
estate and personal property taxes on the Property shall be prorated between the
Seller and Buyer on an accrual basis, based upon the actual current tax xxxx for
the tax year in which the Closing occurs. If the most recent tax xxxx received
by Seller as of the Proration Date is not the actual current tax xxxx, then the
Seller and Buyer shall re-prorate the real estate and personal property taxes at
the Final Closing Adjustment if the actual current tax xxxx is then available.
All amounts payable for real estate and personal property taxes accruing up to
and including the Proration Date shall be the obligation of the Seller and all
amounts payable for real estate and personal property taxes accruing after the
Proration Date shall be the obligation of Buyer. If, after the Proration Date,
any additional or supplemental real estate and personal property taxes are
assessed against the Property by reason of back assessments, corrections to
previous tax bills or other events occurring up to and including the Proration
Date, the Seller and Buyer shall re-prorate the real estate and personal
property taxes at the Final Closing Adjustment to provide the appropriate
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credit. Any delinquent real estate and personal property taxes on the Property
shall be paid by Seller at the Closing. Notwithstanding any provision in this
Schedule 12 to the contrary, Buyer and Seller agree that, upon the completion of
the prorations described in this Section 3, Seller shall be entitled to hold all
sums collected prior to the Closing Date from Tenants with respect to real
estate and personal property taxes on the Property, subject to the Final Closing
Adjustment as provided in this Schedule 12.
Section 4. Proration - Operating Expenses, and Interest and Insurance
Premiums. All costs, expenses, charges and fees for sewer, water, electricity,
heat and air-conditioning service and other utilities, common area maintenance
charges, insurance premiums, rental and privilege taxes, periodic charges
payable under Service Contracts which are assumed by Buyer, periodic fees
payable under transferable licenses and permits for the operation (as opposed to
the construction) of the Property, periodic charges under the REAs, and any
other costs incurred in the ordinary course of business for the management and
operation of the Property, shall be prorated between Seller and Buyer on an
accrual basis, based on the actual number of days in the month during which the
Closing occurs. The Seller shall be responsible for all such expenses that are
attributable to the period up to and including the Proration Date and Buyer
shall be responsible for all such expenses which are attributable to the period
after the Proration Date. To the extent commercially reasonably and practicable,
Seller shall obtain xxxxxxxx and meter readings as of the day up to and
including the Proration Date to aid in such prorations. If xxxxxxxx or meter
readings as of the day up to and including the Proration Date are obtained,
adjustments of any costs, expenses, charges or fees shown thereon shall be made
in accordance with such xxxxxxxx or meter readings.
Section 5. Proration - Security Deposits and Other Tenant Credits. At
the Closing, Buyer shall be credited with and the Seller shall be charged with
an amount equal to the sum of the Security Deposits (and any interest due to
Tenants thereon, if any) being held by Seller or any other person under the
Leases. Upon the Closing, the Seller shall be entitled to retain the Security
Deposits due Tenants for which Buyer has been credited and Seller has been
charged pursuant to this Section 5. Seller shall certify to Buyer at Closing the
amount of all other credits due to Tenants. At such time as any of such credits
become due to Tenants, Seller will reimburse Buyer for such credits. If any such
credits remain outstanding at the time of the Final Closing Adjustment, Seller
shall credit Buyer in the amount of such outstanding balance.
Section 6. Adjustment Dates. On or immediately before the Closing Date,
the parties shall make an interim closing adjustment, based on the most current
information available. The parties shall make an additional interim closing
adjustment (the "Interim Closing Adjustment") ten (10) days following the
Closing Date, and a final closing adjustment (the "Final Closing Adjustment") as
follows: (a) if the Closing occurs in calendar year 2003, then the Final Closing
Adjustment shall be on September 1, 2004, or (b) if the Closing occurs in
calendar year 2004, then the Final Closing Adjustment shall be on September 1,
2005. The Interim Closing Adjustment and the Final Closing Adjustment are
jointly referred to as the "Closing Adjustments".
(a) General. Payment of Delinquent Rents collected by Buyer after the
Proration Date which have not been adjusted at the Interim Closing Adjustment
and which are attributable
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to the period up to and including the Proration Date, shall be made by Buyer to
Seller when and as collected and as soon as practicable following receipt, but
in no event later than thirty (30) days following receipt. All other adjustments
or prorations which could not be determined at the Closing or the Interim
Closing Adjustment due to the lack of actual statements, bills or invoices for
the current period, the year-end adjustment of Additional Rents, the
unavailability of final sales figures or amounts for Percentage Rent or for any
other reason shall be made at the Final Closing Adjustment. Any net adjustment
determined at each respective Adjustment Date in favor of Buyer shall be paid in
cash or cash equivalent by the Seller to Buyer no later than twenty (20) days
after the respective Adjustment Date. Any net adjustment in favor of the Seller
shall be paid in cash or cash equivalent by Buyer to the Seller no later than
twenty (20) days after the respective Adjustment Date. Notwithstanding any
provision of this Schedule 12 to the contrary, Buyer and Seller agree that Buyer
shall be entitled to hold all sums collected from Tenants after the Closing
Date, subject to the Final Closing Adjustment as provided in this Schedule 12
(b) Additional Rental Adjustment. The actual amount of Additional Rents
paid by each Tenant of the Property for the annual period in which the Proration
Date occurs (as distinguished from the estimated amounts prorated as of the
Proration Date pursuant to Subsection 2(b) above) shall be separately prorated
between the Seller and Buyer as of the Proration Date based on the Expenses
incurred by Seller and Buyer for the annual period during which the Proration
Date occurs, and on the amount of Expenses recoverable from Tenants and the
owners of any out parcels for such period. If, for any Tenant, the Additional
Rent received by Seller, up to and including the Proration Date, is greater than
the amount of Additional Rent allocated based on the above provisions, the
Seller shall pay the excess to Buyer; otherwise, Buyer shall remit or credit to
Seller the amount of any shortfall. If the total sum of all advance payments of
projected Additional Rents exceeds the Additional Rents actually due from the
Tenant for the annual period in which the Proration Date occurs, Buyer shall
remit or credit the Tenant with such excess.
(c) Percentage Rent Adjustment. To the extent the sum of all interim
payments on account of Percentage Rent collected by the Seller from each Tenant
for the Applicable Percentage Rent Fiscal Year exceeds the amount of Percentage
Rent to which Seller is entitled with respect to such Tenant pursuant to Section
6(c), the Seller shall pay such excess to Buyer. To the extent the sum of all
interim payments on the account of Percentage Rent collected by Buyer from each
Tenant for the Applicable Percentage Rent Fiscal Year exceeds the amount of
Percentage Rent to which Buyer is entitled with respect to such Tenant, then
Buyer shall pay such excess to the Seller. Any such adjustment of interim
payments received and actual Percentage Rent payable shall be made on a
Lease-by-Lease basis (as opposed to aggregating all interim payments received by
the Seller from all Tenants and offsetting the same against the entire amount of
Percentage Rent payable by all Tenants). If the total sum of the interim
payments on account of Percentage Rent collected by the Seller plus the interim
payments on account of Percentage Rent collected by Buyer exceeds the Percentage
Rent actually due from the Tenant, Buyer shall remit or credit Tenant with such
excess and the Seller and Buyer shall make any necessary adjustment between them
in accordance with the preceding provisions of this Section 6(c).
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(d) No Further Adjustments. On the Final Adjustment Date, final
prorations shall be made and, to the extent necessary, Buyer and Seller shall
estimate items for which final sums are not available. Except for: (a)
additional or supplemental real estate taxes, real estate tax credits or
rebates, or other adjustments to real estate taxes due to back assessments,
corrections to previous tax bills or real estate tax appeals or contests, and
(b) any Additional Rents or any Percentage Rent which may be contested by
Tenants or cannot be computed by the Final Adjustment Date, the Final Closing
Adjustment shall be conclusive and binding upon the Seller and Buyer.
Section 7. Leasing Commissions and Tenant Improvements. Except as set
forth below, any and all leasing commissions and tenant improvements with
respect to Leases in existence on the Effective Date shall be paid in full and
discharged by Seller at Closing. Any and all leasing commissions and tenant
improvements with respect to Leases executed after the Effective Date which have
been approved by Buyer in accordance with this Agreement, any leasing
commissions on those recently executed Leases, or renewals or extensions, as
expressly identified on Exhibit A hereto, shall be paid in full and discharged
by Buyer. Any and all leasing commissions and tenant improvements with respect
to Leases executed after the Effective Date which have been not been approved by
Buyer in accordance with this Agreement shall be paid in full and discharged by
Seller. Leasing commissions due to any affiliate of Seller shall be paid by
Seller and shall not be prorated.
Section 8. Payment of Expenses. Except as otherwise specifically
provided in this Agreement, Seller and Buyer shall each pay all of their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including all related accounting, legal and appraisal fees.
Section 9. Continuing Effect. Notwithstanding any provision of this
Agreement to the contrary, the agreements made by Seller and Buyer pursuant to
this Schedule 12 shall survive the Closing for a period of three (3) years after
Closing, and there shall be no further adjustments after such date except to the
extent made or asserted prior to the expiration of such three (3) year period.
Section 10. No Duplication. Notwithstanding any provision herein to the
contrary, the adjustments made under this Schedule and the Agreement shall not
be duplicative.
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Exhibit A to Schedule 12
Leasing Commissions to be Paid by Buyer
RECENTLY EXECUTED LEASES:
Xxxxxx Xxxxx Mens Fashion $59,000
Fashion City $16,489
2004 RENEWALS:
Added Touch $ 3,024
Sunglass Hut $ 600
Desmond's $ 3,147
Hallmark $ 5,700
Lenscrafters $ 4,950
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