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Exhibit 99.7
CONTRACT OF SALE
AGREEMENT (this "Agreement") made as of this 15th day of September,
2000, by and among 55 Public LLC ("55 Public"), a Delaware limited liability
company, North Valley Tech, LLC ("North Valley Tech"), a Delaware limited
liability company, Southwest Shopping Centers Co. I, L.L.C ("Southwest
Centers"), a Delaware limited liability company, First Union Madison L.L.C.
("First Union Madison"),an Illinois limited liability company, Printers Alley
Garage, LLC ("Printers Alley"), a Delaware limited liability company, First
Union Real Estate Equity and Mortgage Investments ("FUR"), an Ohio
unincorporated association in the form of a business trust, First Union
Commercial Properties Expansion Company ("FUCP"), a Delaware corporation, each
having an address at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(collectively, "Sellers" and individually, a "Seller") and Radiant Investors
LLC, a Delaware limited liability company, having an address at c/o Radiant
Partners LLC, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
("Purchaser").
W I T N E S S E T H :
WHEREAS, 55 Public is the owner of 55 Public (office building),
Cleveland, Ohio ("55 Public Office Building") and 55 Public (garage),
Cleveland, Ohio ("55 Public (Garage)"), as more particularly described in
Schedules A-1 and A-2 annexed hereto and made a part hereof; and
WHEREAS, FUR is the owner of CEI Building, Cleveland Ohio ("CEI"),
as more particularly described in Schedule A-3 annexed hereto and made a part
hereof; and
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WHEREAS, FUR and FUCP, collectively, are the owners of Westgate
Shopping Center, Abilene, Texas ("Westgate Shopping Center"), as more
particularly described in Schedule A-4 annexed hereto and made a part hereof
(sometimes herein FUR and FUCP are collectively referred to as "First
Westgate"); and
WHEREAS, Southwest Centers is the owner of Pecanland Mall, Monroe,
Louisiana ("Pecanland Mall"), as more particularly described on Schedule A-5
and the land adjacent to Pecanland Mall ("Pecanland Mall Adjacent Land"), as
more particularly described in Schedule A-6 annexed hereto and made a part
hereof; and
WHEREAS, FUR (i) has fee simple title to a portion of and (ii) is
the tenant under that certain ground lease ("Huntington Garage Ground Lease")
covering the remaining portion of the Huntington Garage, Cleveland, Ohio
("Huntington Garage"), as more particularly described in Schedule A-7 annexed
hereto and made a part hereof; and
WHEREAS, First Union Madison is the owner of Madison and Xxxxx
Garage, Chicago, Illinois ("Madison and Xxxxx Garage"), as more particularly
described in Schedule A-8 annexed hereto and made a part hereof; and
WHEREAS, Printers Alley is the owner of Printers Alley Garage,
Nashville, Tennessee ("Printers Alley Garage"), as more particularly described
in Schedule A-9 annexed hereto and made a part hereof; and
WHEREAS, FUR is the owner of 5th and Xxxxxxxx Garage, Richmond,
Virginia ("5th and Xxxxxxxx Garage"), as more particularly described in Schedule
A-10 annexed hereto and made a part hereof; and
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WHEREAS, FUR is the owner of Xxxx Xxxxx Xxxxxx Xxxxxxx Xxx,
Xxxxxxxxx, Xxxx ("West Third Street Lot"), as more particularly described in
Schedule A-11 annexed hereto and made a part hereof; and
WHEREAS, North Valley Tech is the tenant under that certain ground
lease covering North Valley Tech Center, Thornton, Colorado ("North Valley Tech
Center Ground Lease"), as more particularly described in Schedule A-12 annexed
hereto and made a part hereof; and
WHEREAS, FUR is the tenant under that certain ground lease covering
Xxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx ("Two Rivers Business Center
Ground Lease"), as more particularly described in Schedule A-13 annexed hereto
and made a part hereof (the North Valley Tech Center Ground Lease, the Two
Rivers Business Center Ground Lease and the Huntington Garage Ground Lease are
collectively referred to as the "Ground Leases" and the land demised under each
Ground Lease shall hereinafter be referred to individually and collectively as
the "Ground Lease Land") (the leasehold estates of North Valley Tech and FUR
with respect to the North Valley Tech Center Ground Lease, the Two Rivers
Business Center Ground Lease and the Huntington Garage Ground Lease are
collectively referred to as the "Leasehold Estates"); and
WHEREAS, the land demised and described in Schedules X-0, X-0, X-0,
X-0, X-0, X-0, X-0, X-0, X-0, X-00, X-00, X-00 and A-13 are collectively
referred to as the "Land"; and
WHEREAS, each Seller desires to sell to Purchaser, and Purchaser
desires to purchase from each Seller, all of such Seller's right, title and
interest in and to its Property (as hereinafter defined)
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NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Sellers and Purchaser agree as follows:
1. Sale-Purchase. (a) Each Seller agrees to sell, assign and
convey to Purchaser, and Purchaser agrees to purchase from such Seller, subject
to the terms and conditions of this Agreement:
(1) said Seller's respective (i) fee simple title in and to
55 Public (Office Building), 55 Public (Garage), CEI, Westgate Shopping Center,
Pecanland Mall, Pecanland Mall Adjacent Land, Huntington Garage, Madison and
Xxxxx Garage, Printers Alley Garage, 5th and Xxxxxxxx Xxxxxx, Xxxx Xxxxx Xxxxxx
Lot; and (ii) interest in and to the Leasehold Estates together with the
buildings and improvements located on the Land and Seller's right, title and
interest, under each Ground Lease, in and to the buildings and improvements
located on the Ground Lease Land (collectively, the "Buildings" and the
Buildings, the Land and the Ground Lease Land are hereinafter collectively
referred to as the "Premises"), and all of said Seller's respective right,
title and interest, if any, in, to and under (A) all easements, rights of way,
privileges, tenements, hereditaments, appurtenances, strips, gores and other
rights pertaining to its Premises (including, without limitation, the
easements, access rights and other rights provided in reciprocal access and
easement agreements and operating agreements affecting the Premises)
(collectively, the "Appurtenances"); (B) any land in the bed of any street,
road, avenue, alley, passage, common areas and other rights-of-way, open or
proposed, public or private, in front of or adjoining its Premises or any
portion thereof, and any award to be made in lieu thereof and in and to any
unpaid award for damage to said Premises by reason of change of grade of any
street occurring after the Proration Date (as hereinafter defined)
(collectively, the "Adjoining Land");
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(C) the fixtures, equipment, machinery, furniture, furnishings, maintenance
vehicles and equipment, tools, appliances, supplies and other items of personal
property of every kind and description (and replacements and substitutions
thereof), now owned or hereafter acquired by such Seller and contained in or
on, or used in connection with, the ownership, maintenance, use, occupancy and
operation of its Premises (collectively, the "Personalty"); (D) all leases,
subleases, lettings, licenses and other occupancy agreements and agreements
governing the use of garage or parking lot spaces, and all amendments,
modifications, supplements, additions, extensions and renewals thereof as
permitted hereunder, and, except as expressly provided herein, security and
other deposits thereunder affecting its Premises (collectively, "Leases"); (E)
subject to the provisions of Section 21 hereof, all service agreements,
maintenance agreements, supply agreements, union agreements and any other
contracts and agreements affecting the Premises and all income therefrom
(collectively, "Contracts"); (F) any assignable licenses, permits, approvals
and certificates required or used in or relating to the ownership, use,
maintenance, occupancy or operation of any part of the Premises (the
"Licenses"); (G) all existing surveys, blueprints, drawings, plans and
specifications (including, without limitation, structural, HVAC, mechanical and
plumbing plans and specifications) and other documentation for or with respect
to the Premises or any part thereof, all construction contracts and
subcontracts; all warranties or guaranties given in connection with work
performed at or on the Premises; all available tenant lists and data, all
available lists of parkers and data, correspondence with past, present and
prospective tenants, parkers, vendors, suppliers, utility companies and other
third parties, booklets, manuals and promotional and advertising materials
concerning the Premises or any part thereof, all trade names and trade marks
pertaining to the Premises, and such other existing books, records and
documents (including, without limitation, those relating to ad valorem taxes
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and leases) used in connection with the operation of the Premises or any part
thereof (collectively, the "Intangible Property") and (H) all of Sellers'
right, title and interest in and to all restricted, reserve and escrow accounts
held by the mortgagees under those Mortgages (as hereinafter defined) which
Purchaser shall assume at Closing (collectively, the "Escrow Accounts"). The
Land, the Buildings (or, as the case may be, a Seller's interest in a Building
as tenant under a Ground Lease), the Leasehold Estates, the Appurtenances, the
Adjoining Land, the Personalty, the Leases, the Contracts, the Licenses, the
Escrow Accounts and the Intangible Property are hereinafter collectively
referred to as the "Properties" and, with respect to each Premises, the
"Property"; and
(2) that certain promissory note dated February, 1997, in
the original principal amount of $1,800,000, made by Club Associates, a Georgia
limited partnership, to FUR (the "Club Associates Note"), the mortgage or deed
of trust securing the repayment of the Club Associates Note (the "Club
Associates Mortgage") and such other documents or instruments executed and
delivered in connection therewith (the "Club Associates Collateral Documents";
collectively with the Club Associates Note and the Club Associates Mortgage,
the "Club Associates Loan Documents").
The Properties and the Club Associates Loan Documents are
hereinafter collectively referred to as the "Sale Assets".
(b) Notwithstanding that (i) the Pecanland Mall Adjacent
Land is included in the Properties being sold hereunder, Southwest Centers has
previously sold the parcel described on Schedule A-6-1 ("Schedule A-6-1
Parcel") and shall be entitled to sell all or any part of the balance of the
Pecanland Mall Adjacent Land (and all Property pertaining thereto) at or prior
to the Closing provided that Purchaser shall receive a credit at the Closing
against that
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portion of the Purchase Price payable to Southwest Centers (x) with respect to
the Schedule A-6-1 Parcel, in the amount of $531,227, and (y) with respect to
any portion of the balance of the Pecanland Mall Adjacent Land (and the
Property pertaining thereto) that shall be sold prior to the Closing, in an
amount equal to the Net Sales Price (as hereinafter defined) received by
Southwest Centers from each such sale (collectively, "Pecanland Mall Adjacent
Land Credit"); and (ii) the Huntington Garage is included in the Properties
being sold hereunder, FUR shall be entitled to sell the Huntington Garage at or
prior to the Closing provided that Purchaser shall receive a credit at the
Closing against that portion of the Purchase Price payable to FUR in an amount
equal to the Net Sales Price received by FUR from said sale ("Huntington Garage
Credit"). A contract that FUR shall desire to execute for the sale of the
Huntington Garage (the "Huntington Contract") shall be subject to the prior
approval of Purchaser, such approval shall not be unreasonably withheld or
delayed, it being agreed that if the gross purchase price for the sale of the
Huntington Garage shall be less than $20,000,000 or those obligations of FUR
which survive the closing of such sale are not otherwise customary and standard
obligations in connection with the sale of a garage property, Purchaser shall
be deemed to have been reasonable if Purchaser shall disapprove the Huntington
Contract. If FUR shall deliver to Purchaser a term sheet for the sale of the
Huntington Garage and Purchaser shall approve such term sheet, FUR shall
thereafter have the right to enter into the Huntington Contract so long as the
Huntington Contract shall be upon terms and conditions substantially similar to
(or better than) the terms set forth in the term sheet; provided, however,
that Purchaser shall have specifically consented (such consent not to be
unreasonably withheld or delayed) to those obligations that survive the closing
of the sale of the Huntington Garage that Purchaser shall be required to assume
pursuant to the terms hereof, it being agreed that Purchaser shall be deemed to
be reasonable if any such provisions that shall
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survive closing are not otherwise customary and standard obligations with
respect to the sale of a garage property. If FUR shall deliver to Purchaser a
copy of the Huntington Contract for Purchaser's approval, Purchaser shall be
deemed to have approved the Huntington Contract if Purchaser shall fail to
deliver to FUR within five (5) business days a notice setting forth Purchaser's
specific objections to the Huntington Contract. The term "Net Sales Price"
shall mean an amount equal to the sum of (1) the gross sales price paid for the
applicable Property, minus (2) any and all fees, expenses, charges and other
costs incurred by the Seller in connection with the sale of said Property
including, without limitation, brokerage commissions, attorney's fees and
disbursements, transfer and similar taxes, sales and similar taxes, and title
and recording charges.
2. Purchase Price. (a) Purchaser shall pay to Sellers for the
Sale Assets the sum of ONE HUNDRED NINETY NINE MILLION EIGHT HUNDRED THOUSAND
($199,800,000) DOLLARS (the "Purchase Price"), subject to apportionments to be
made as provided in this Agreement, which Purchase Price shall be allocated
among the Sale Assets in the manner set forth on Schedule B-1 annexed hereto
and made a part hereof. Purchaser shall pay the Purchase Price as follows:
(i) Within one (1) business day after Purchaser has
received a fully executed counterpart of this Agreement, SIX HUNDRED FIFTY
THOUSAND ($650,000) DOLLARS by Purchaser, at its election, delivering its check
to Stroock & Stroock & Xxxxx LLP (the "Escrowee"), payable to the order of
"Stroock & Stroock & Xxxxx LLP, as Escrowee", subject to collection, or by wire
transfer to the Escrowee of immediately available Federal funds in New York
City (the "Initial Deposit"), provided, however, if the Initial Deposit is not
received by Escrowee within one (1) business day after Purchaser has received a
fully
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executed counterpart of this Agreement, Sellers, at their option, may declare
this Agreement, null, void and of no force and effect, and may pursue its
remedies against Purchaser upon said Initial Deposit, or in any other manner
permitted by law, such remedies being cumulative;
(ii) By no later than September 29, 2000 (the "First
Additional Deposit Date"), TIME BEING OF THE ESSENCE, SIX MILLION
($6,000,000.00) DOLLARS by Purchaser, at its election, delivering a certified
check or an official bank check to Escrowee, payable to the order of "Stroock &
Stroock & Xxxxx LLP, as Escrowee", or by wire transfer to the Escrowee of
immediately available Federal funds in New York City or by letter of credit
(the "First Additional Deposit");
(iii) By no later than three (3) business days after FUR
shall deliver the Shareholder Ratification to Purchaser (the "Second Additional
Deposit Date"), TIME BEING OF THE ESSENCE, THREE MILLION ($3,000,000) DOLLARS
by Purchaser, at its election, delivering a certified check or an official bank
check to Escrowee, payable to the order of "Stroock & Stroock & Xxxxx, LLP, as
Escrowee", or by wire transfer to the Escrowee of immediately available Federal
funds in New York City or by letter of credit (the "Second Additional Deposit",
and together with the Initial Deposit and the First Additional Deposit being
the "Deposit");
(iv) Subject to the provisions of Section 25 hereof, by
Purchaser assuming, at the Closing, all of the Sellers' liabilities and
obligations under those certain mortgages described in Schedule C annexed
hereto and made a part hereof and the promissory notes secured thereby
(collectively, the "Mortgages"), which Mortgages had an aggregate outstanding
principal balance as of the Proration Date (as defined in Section 6A below) of
approximately ONE HUNDRED SIXTEEN MILLION EIGHT HUNDRED SEVEN
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THOUSAND NINE HUNDRED FIFTY EIGHT AND 90/100 ($116,807,958.90) DOLLARS; and
(v) Subject to the provisions of Section 2(d) and
Section 6 hereto, SEVENTY THREE MILLION THREE HUNDRED FORTY TWO THOUSAND FORTY
ONE AND 10/100 ($73,342,041.10) DOLLARS (the "Cash Balance"), allocated in the
manner set forth on Schedule B-2 annexed hereto and made a part hereof, and as
adjusted by the apportionments to be made as provided for in this Agreement,
payable at the Closing by wire transfer to Sellers, or such persons or entities
as Sellers may designate, of immediately available Federal funds in New York
City. Sellers shall provide wiring instructions to Purchaser at least
forty-eight (48) hours prior to Closing.
(vi) (A) In the event Purchaser shall fail to make the
First Additional Deposit hereunder, no later than the First Additional Deposit
Date, TIME BEING OF THE ESSENCE, this Agreement shall thereupon immediately
terminate and be null, void and of no force and effect and Escrowee shall
disburse ONE HUNDRED TWENTY FIVE THOUSAND ($125,000) DOLLARS of the Initial
Deposit to Sellers, together with any interest earned on such amount, and the
balance of the Initial Deposit or FIVE HUNDRED TWENTY FIVE THOUSAND ($525,000)
DOLLARS to Purchaser, together with any interest earned on such amount. In
addition, Purchaser agrees to deliver or cause to be delivered to Sellers all
reports, studies, memorandums, tests, evaluations and assessments
(collectively, the "Study") for each of the Properties obtained and/or
conducted by or on behalf of Purchaser prior to and including the First
Additional Deposit Date, together with all reliance letters from each provider
of same which were obtained by Purchaser upon receipt of each Study. Purchaser
agrees to use its good faith, reasonable efforts to obtain a reliance letter
from the provider of each Study, which
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reliance letter shall provide that the Study prepared by the provider may be
relied upon by the Seller that is the owner of the Property that is the subject
of such Study, any prospective or actual purchaser of such Property and any
prospective or actual lender that may provide financing to the owner of such
Property.
(B) Notwithstanding the provisions of Section 2(a)(vi)(A) to
the contrary, in the event that Purchaser (or an affiliate thereof), enters
into a Limited Liability Company Agreement (the "JV Agreement"), with U.S.
Trust Corporation, National Association, As Trustees Under That Certain
Agreement And Declaration Of Trust Dated As Of September 4, 1997, As Amended,
Known As Landmark Equity Trust VII ("Landmark"), and such entity shall obtain
commitments for Acceptable Financing, as such term shall be defined in the JV
Agreement, for some or all of the Properties, after September 11, 2000, and
pursuant to the terms of the JV Agreement, Purchaser (or an affiliate thereof)
is no longer obligated to return the Initial Contribution #1 (as such term
shall be defined in the JV Agreement), then in the event Purchaser shall fail
to make the First Additional Deposit hereunder, no later than the First
Additional Deposit Date, TIME BEING OF THE ESSENCE, this Agreement shall
immediately terminate and be null, void and of no force and effect and Escrowee
shall disburse the Initial Deposit, together with any additional deposit
credited by Escrowee to this Agreement pursuant to the provisions of Section
2(a)(vii) below, to Sellers, together with any interest earned thereon. In
addition, Purchaser shall deliver to Sellers each Study and all reliance
letters thereto in accordance with the provisions of Section 2(a)(vi)(A).
Notwithstanding the foregoing, if Purchaser (or an affiliate thereof) is
obligated to return the Initial Contribution #1 prior to First Additional
Deposit Date then the provisions of this Section 2(vi)(B) shall no longer be
applicable.
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(vii) Notwithstanding the provisions of Section 2(a)(vi)
to the contrary, in the event the right of first refusal is exercised to acquire
that property being sold to Purchaser under the Long Street Contract (as
defined in Section 20 below) any deposit then held under the Long Street
Contract, plus all interest earned thereon, shall be credited by Escrowee
(being the same escrowee as under the Long Street Contract) as an additional
deposit under this Agreement, to be deemed part of the Deposit hereunder.
Notwithstanding, should any deposit under the Long Street Contract be credited
against the Deposit hereunder prior to the Purchaser making the First
Additional Deposit hereunder such deposit under the Long Street Contract shall
be credited by Escrowee to the Initial Deposit hereunder, and in the event this
Agreement is terminated pursuant to the provisions of Section 2(a)(vi) above,
Escrowee shall either: (a) in the event the conditions set forth in Section
2(a)(vi)(B) have not been satisfied, disburse One Hundred Twenty Five Thousand
($125,000) Dollars of the Initial Deposit to Sellers, together with any
interest earned thereon, and the balance of the Initial Deposit (or $525,000)
plus the amount of any deposit credited from the Long Street Contract, together
with any interest earned on such amounts, to Purchaser or (ii) in the event the
conditions of Section 2(a)(vi)(B) have been satisfied, disburse the entire
Initial Deposit and the amount of any deposit credited from the Long Street
Contract, together with any interest earned thereon, to Sellers. In addition,
Purchaser shall deliver to Sellers each Study and all reliance letters thereto
in accordance with the provisions of Section 2(a)(vi)(A).
(b) Notwithstanding the provisions of Section 2(a) to the
contrary, Purchaser may, in lieu of delivering a check for the First Additional
Deposit and/or the Second Additional Deposit, deliver to Escrowee a clean,
irrevocable and unconditional letter of credit in the amount of the First
Additional Deposit or the Second Additional Deposit, as the case may be,
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("Letter of Credit") issued for the benefit of Escrowee by a New York City
commercial bank which is a member of the New York City Clearing House
Association (the issuer of such Letter of Credit being called the "Issuing
Bank"), which Letter of Credit shall be presentable and payable at any branch
office of the Issuing Bank located in New York City, have an initial term of
not less than one (1) year and be in a form acceptable to Sellers. If the
Letter of Credit is delivered to Escrowee, then Escrowee shall hold and draw
upon the same in accordance with Section 23 of this Agreement. The Letter of
Credit shall also provide that:
(i) the Issuing Bank shall pay to Escrowee the full face
amount of the Letter of Credit upon presentation of the Letter of Credit, a
sight draft and a certificate executed by Escrowee stating that Escrowee is
entitled to draw upon the Letter of Credit in accordance with the terms of this
Agreement; and
(ii) If Purchaser shall fail to deliver to the Escrowee a
substitute Letter of Credit before twentieth (20th) day preceding the
expiration date of the Letter of Credit, then Escrowee shall have the right to
draw upon the Letter of Credit in the full face amount thereof (and in any
event shall draw upon the Letter of Credit not later than ten (10) days prior
to the expiration date of the Letter of Credit) and Sellers shall have the
right to direct Escrowee to draw down upon the Letter of Credit, in which case,
the Escrowee shall draw down upon the Letter of Credit. Escrowee shall hold
the cash proceeds thereof on account of the Deposit hereunder, until the
Closing occurs or this Agreement is terminated and such proceeds are disposed
in accordance with the terms of this Agreement. If the Letter of Credit has
been drawn upon pursuant to the preceding sentence and the Closing shall occur,
then Escrowee shall pay to Sellers such proceeds and Purchaser shall receive a
credit in the amount of such proceeds against the portion of the
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Purchase Price payable to Sellers. Upon a default by Purchaser, beyond the
expiration of any applicable notice and cure periods, under this Agreement,
Escrowee is hereby authorized and directed, at Sellers direction, to draw on
the Letter of Credit and distribute the proceeds thereof in accordance with,
and subject to, the provisions of Section 23 hereof (including, without
limitation, the notice provisions thereof) and the Sellers shall have the same
remedies against such proceeds as the Sellers have against the Additional
Deposit. Purchaser shall not receive any credit against the Purchase Price for
the amount of the Letter of Credit, unless and to the extent the Sellers
receive the proceeds thereof as provided in this Agreement. If the Escrowee
has not drawn upon the Letter of Credit on or before the Closing, then the
Escrowee shall also return to Purchaser at the Closing any original counterpart
of the Letter of Credit then held by the Escrowee. If the Closing shall not
occur and this Agreement is terminated, the Letter of Credit (and any proceeds
thereof) shall be disposed of in accordance with the applicable provisions of
this Agreement. Notwithstanding anything to the contrary contained herein, if,
at any time, the Letter of Credit fails to comply with the provisions of this
Section 2(b), then the Letter of Credit shall immediately be replaced by
Purchaser with a letter of credit that complies with the provisions of
this_Section 2(b).
(c) With respect to the Westgate Shopping Center, it is
anticipated that a financing for the Westgate Shopping Center which will be
secured by a mortgage (the "Westgate Financing") will occur prior to the
Closing. If such financing of the Westgate Shopping Center shall occur prior
to the Closing, the outstanding principal balance of the Westgate Financing as
of the date of the closing of the Westgate Financing (which shall be in the
approximate amount of $7,500,000) shall be credited against the Purchase Price
to be paid for (and allocated to) the Westgate Shopping Center and the Cash
Balance that shall be payable by Purchaser shall be reduced by the amount of
the outstanding principal balance of the Westgate
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Financing as of the date of the closing of the Westgate Financing; provided,
however, that the amount of any and all escrows established with and made to
the holder of the Westgate Financing at the time of the closing of the Westgate
Financing shall be added to the Cash Balance that shall be payable by
Purchaser. Purchaser shall have the right to approve the terms and conditions
of the Westgate Financing, which consent shall not be unreasonably withheld,
conditioned or delayed. All costs and expenses that shall have been incurred
in connection with obtaining, and, if applicable, closing such Westgate
Financing, including, without limitation, attorneys fees and brokerage expenses
shall be borne by First Westgate. In addition, if First Westgate is required
to deliver an agreement (which may be in the form of a guaranty or
indemnification), respecting the terms and conditions of the Xxxx-Xxxxx Lease
and/or K-Mart Lease at the Westgate Shopping Center, to the holder of the
Westgate Financing, First Westgate shall deliver same; and Purchaser, at
Closing, shall cause Indemnitor, as defined in Section 14(b)(xii) hereof, to
provide to First Westgate a complete and unconditional indemnification, in form
reasonably acceptable to First Westgate, against all liability that First
Westgate shall incur on account of First Westgate having delivered such
agreement. For the avoidance of doubt, the proceeds of the Westgate Financing
shall be retained by First Westgate; the outstanding principal balance of the
Westgate Financing as of the date of the closing of the Westgate Financing
shall be credited against the Purchase Price to be paid for the Westgate
Shopping Center and the Cash Balance that shall be payable by Purchaser shall
be reduced by the amount of the outstanding principal balance of the Westgate
Financing as of the date of the closing of the Westgate Financing.
(d) Notwithstanding any provisions in this Agreement to the
contrary, it shall not be a condition to the Closing hereunder that the
Mortgages be assumed by and assigned to the Purchaser. In the event that the
consent to the assignment to, and assumption by,
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the Purchaser of a Mortgage shall not be obtained from the holder of such
Mortgage, then the Cash Balance payable at the Closing, subject to the
provisions of Section 25 hereof, shall be increased by the amount of the
outstanding principal balance of such Mortgage as of the Proration Date.
(e) As additional consideration for the conveyance of the
Sale Assets to Purchaser, Purchaser shall assume as of the Closing all
liabilities arising out of (i) except as set forth in Section (2)(e)(ii) below,
the ownership, operation and use of the Sale Assets from and after the
Proration Date as though Purchaser acquired title to the Sale Assets at 11:59
p.m. on said date, (ii) Capital Expenditures(as herein defined) for the
Properties committed to by each Seller and/or any of their respective agents
and/or authorized representatives after May 9, 2000, (which shall include,
without limitation, those expenditures set forth on Schedule D annexed hereto),
(iii) the value of the Capital Expenditures for the Properties committed to by
each Seller and/or any of their respective agents and/or authorized
representatives prior to May 9, 2000 which shall not have been performed by
Sellers prior to the Closing Date and for which Purchaser shall have received a
closing adjustment pursuant to Section 6A(l) hereof and (iv) subject to the
provisions of Section 21(j), all environmental liabilities which shall arise
from and after the Proration Date, (collectively, "Assumed Liabilities"), and
shall indemnify each Seller from and against any and all losses, liabilities,
costs, damages, claims and expenses (including reasonable attorneys' fees and
expenses) which such Seller may incur by reason of, or arising out of, or
resulting from any or all Assumed Liabilities; provided, however, Assumed
Liabilities shall not include any and all accrued and/or unpaid Purchaser
Expenses (as such term is defined in Section 6B(b) hereof), which accrued and
unpaid Purchaser Expenses shall remain the obligation of Sellers to satisfy.
Each Seller shall be responsible for the payment of all Capital Expenditures
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that such Seller and/or its authorized agents or representatives shall have
committed to on or before May 9, 2000 with respect to the Property owned by
such Seller, including, without limitation, those expenditures set forth on
Schedule E annexed hereto. For purposes of this Agreement, the term "Capital
Expenditures" shall mean collectively, (A) those expenses set forth on Schedule
D and Schedule E and (B) to the extent not otherwise set forth on Schedule D or
Schedule E (1) expenses which in accordance with generally accepted accounting
principles cannot be expensed within the year in which such cost shall be
incurred, (2) tenant improvement costs that a Seller shall be required to pay
for pursuant to a Lease and (3) brokerage commissions that a Seller shall be
required to pay with respect to a Lease; provided, however, that for purposes
of this Agreement, Sellers shall have no obligation to pay for any tenant
improvement costs or brokerage commissions that shall be payable by a Seller on
account of a Lease or a renewal, extension, expansion or modification of a
Lease that was entered into or exercised after May 9, 2000. The obligation of
Purchaser under this Section 2(e) shall survive the Closing. Sellers and
Purchaser shall, from time to time, update Schedule D and Schedule E to reflect
new information as it is available, and appropriate monetary adjustments shall
be made as needed.
(f) Except as otherwise set forth in Section 2(a)(vi) above,
the party hereunder that shall be entitled to receive the Deposit shall receive
all interest that shall have accrued thereon, and no interest on the Deposit
that shall be delivered to Sellers shall be deemed to be credited against the
Purchase Price.
(g) The Deposit, together with all interest thereon, shall
be held by Escrowee in accordance with Section 23 hereof.
3. Permitted Encumbrances. Subject to the terms and provisions of
this Agreement, title to each Property shall be sold, assigned and conveyed by
Sellers to Purchaser,
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and Purchaser shall accept same, subject only to the following matters as they
pertain to the applicable Property (collectively, the "Permitted
Encumbrances"):
(a) the state of facts shown on the applicable surveys
described on Schedule F annexed hereto and made a part hereof (the "Surveys")
and any other state of facts which the Surveys brought down to date might
disclose or that any other accurate survey might show;
(b) the applicable Mortgages and all liens and security
interests created thereby or in connection therewith;
(c) the applicable Leases;
(d) all of the title exceptions specifically set forth on
Schedule G-2 attached hereto and made a part hereof (other than those items
listed on the Title Reports set forth in Schedule G-1 hereto that shall be
marked with the words "omit"):
(e) right, lack of right, or restricted right of any owner
of a Property to construct and/or maintain (and the right of any Governmental
Authority (as herein defined) to require the removal of) any vault or vaulted
area, in or under the streets, sidewalks or other areas abutting said Property
and any applicable licensing statute, ordinance and regulation, and the terms
of any license pertaining thereto;
(f) all presently existing and future liens of (i) real
estate taxes and (ii) water rates, water meter charges and vault taxes, water
frontage charges and sewer taxes, rents and charges provided that the same
shall be apportioned as provided in this Agreement;
(g) all violations of laws, ordinances, codes, orders,
restrictions, requirements or regulations of any Governmental Authority
applicable to any Property whether or not noted in the records of or issued by,
any Governmental Authority, existing on the Closing
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Date; "Governmental Authority" means any agency, instrumentality, department,
commission, court, tribunal or board of any government, whether foreign or
domestic and whether national, federal, state, provincial or local;
(h) such matters as the Title Company (as hereinafter
defined) shall be willing, without special premium to Purchaser, with respect
to the title insurance policies issued by the Title Company to Purchaser and
any lender with respect to an applicable Property on the Closing Date
(collectively, the "Title Insurance Policies"), to omit as exceptions to
coverage or, with respect to Title Insurance Policies issued to Purchaser only,
except with insurance against collection out of or enforcement against the
applicable Property;
(i) variations between the tax lot lines and the legal
description of the Properties set forth on Schedules A-1 et seq. attached
hereto;
(j) all present and future laws, ordinances, codes, orders,
restrictions, requirements and regulations, including, without limitation,
zoning, building and environmental laws, ordinances, codes, restrictions,
requirements and regulations, of all Governmental Authorities having or
asserting jurisdiction over the Property and the use thereof;
(k) so long as the Title Company shall omit the same from
the Title Insurance Policies, any financing statements, chattel mortgages,
conditional bills of sale or other form of security interest against
personalty, encumbering personalty not owned by Sellers or filed more than five
(5) years prior to the Closing Date;
(l) in addition to those Permitted Encumbrances described in
Section 3(d) above, all other utility company rights, easements and franchises
to maintain and operate lines, poles, wires, cables, pipes, distribution boxes
and other fixtures and facilities in, over, under and upon the Premises;
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(m) in addition to the state of facts described in
Subsection (a) of this Section 3, all other projections and/or encroachments of
retaining walls, steps, fences or similar projections of objects on, under or
above any adjoining streets of the Premises (or any property adjoining the
Premises), or within any set-back areas, and encroachments of similar elements
projecting from adjoining property over the Premises and variations between the
lines of record title and fences, retaining walls, hedges, and the like;
(n) in addition to those Permitted Encumbrances described in
Section 3(d) above, all other covenants, conditions, restrictions, easements,
reservations and agreements of record, provided same are not violated by the
existing structures or the present uses; and
(o) subject to Section 4(a), all other liens affecting the
Property except for the following (collectively, the "Seller Title
Exceptions"):
(i) liens arising from any of the shareholder
lawsuits described in Section 22 hereof;
(ii) liens arising from claims by any broker for a
commission, fee or other compensation in connection with this transaction if
the same arose by, through or on account of any alleged act of a Seller or any
Seller's representatives (other than Radiant Partners LLC ("Radiant"));
(iii) liens arising from any affirmative action or
omission by a Seller which (A) pertains to a Property or any other asset which
is the subject of the Asset Management Agreement (as hereinafter defined), and
(B) was undertaken without the actual knowledge of Radiant;
(iv) liens arising from any action by a Seller which
do not pertain to the Sale Assets;
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(v) liens arising from the use, ownership and
management of a Property which Seller, pursuant to Section 4(c), Section 6A(f)
and Section 6A(l) hereof, shall be responsible to pay for; and
(vi) any fines, judgments and/or penalties payable in
conjunction with any violations noted in the records of any Governmental
Authority against a Property prior to the Proration Date.
(p) Notwithstanding anything in Section 3(a) above to the contrary,
in the event that any Survey for a Property brought down to date after the date
hereof ("New Survey"), discloses a state of facts in which the Title Company
will not issue a Title Policy (both terms as defined below) for such Property
with an appropriate survey endorsement thereto, Purchaser may either (i) elect
to accept said Seller's Property subject to such New Survey, without abatement
of the Purchase Price, or (ii) elect not to accept said Seller's Property, in
which event the Purchase Price pursuant to Section 2(a) hereof shall be reduced
by the portion of the Purchase Price that is allocated to such Property
pursuant to Schedule B-1 and the Cash Balance shall be reduced by the portion
of the Cash Balance allocated to such Property pursuant to Schedule B-2.
4. Title Insurance.
(a) Purchaser acknowledges that it has previously received
the title reports set forth on Schedule G-1 (individually, a "Title Report" and
collectively the "Title Reports"). Based on Purchaser's review of the Title
Reports, as of the date hereof, and their acceptance of same, there are no
Title Objections (as hereinafter defined) set forth therein which do not
constitute Permitted Encumbrances other than as set forth on Schedule G-2
attached
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hereto. Purchaser shall at its own cost and expense, order updates of each
Title Report from First American Title Insurance Company (the "Title Company")
and shall instruct the Title Company to furnish a copy of each such updated
Title Report (individually and collectively, the "Commitment") to Seller's
attorneys, Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: Xxxxx X. Xxxxxx, Esq., simultaneously with its delivery of same
to Purchaser or its attorneys. Notwithstanding anything to the contrary
contained herein, if any Seller is unable to eliminate any exceptions to title
which are not Permitted Encumbrances or which the Title Company refuses to omit
from the Commitment ("Title Objections") by the Closing Date, Sellers may, in
accordance with the provisions of Section 5 hereof, adjourn the Closing, from
time to time, in order to attempt to eliminate such Title Objections. No
Seller shall be required to bring any action or institute any proceeding, or to
otherwise incur any costs or expenses in order to attempt to eliminate any
Title Objections or to otherwise cause title to its Property to be in
accordance with the terms of this Agreement on the Closing Date, except as
otherwise set forth in Subsection 4(c) hereof. If, pursuant to the terms of
this Agreement, any Seller does not elect or is unable to eliminate any such
other Title Objections, then, subject to the provisions of Subsections 4(b) and
4(c) hereof, Purchaser may, by notice given to Sellers by the date which is the
earlier of the Closing Date or thirty (30) days after the applicable Seller
shall have delivered a notice to Purchaser stating that it will not eliminate
such other Title Objections, either (i) elect to accept said Seller's Property
subject to such other Title Objections, without any abatement of the Purchase
Price, or (ii) elect not to accept said Seller's Property, in which event the
Purchase Price pursuant to Section 2(a) hereof shall be reduced by the portion
of the Purchase Price that is allocated to such Property pursuant to Schedule
B-1 and the Cash Balance shall be reduced by the portion of the Cash Balance
allocated to such property pursuant to Schedule B-2
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and Sellers shall be required to reimburse Purchaser for certain expenses in
accordance with the provisions of Section 16(d) hereof.
(b) If on the Closing Date there are any liens or
encumbrances which a Seller is obligated to satisfy under this Agreement or
shall otherwise elect to satisfy, said Seller may use any part of the Cash
Balance portion of the Purchase Price allocated to its Property or Properties
to discharge the same, either by payment or by procuring a bond satisfactory to
the Title Company.
(c) If, at the Closing, any Property is subject to a Seller
Title Exception in a liquidated amount that may be satisfied by the payment of
money only, Purchaser shall bond such Seller Title Exceptions up to an
aggregate of $5,000,000, in which case, such Seller Title Exceptions shall not
be deemed to constitute a Title Objection provided that the Title Company shall
omit the same from the applicable Title Insurance Policy, and provided further
that the Seller that shall be the owner of the Property affected by such Seller
Title Exception shall continue to remain liable for such Seller Title
Exception(s). The disposition of a Seller Title Exception shall require the
consent of the Title Company, Purchaser and the affected Seller.
Notwithstanding the foregoing, Purchaser may, without Seller's consent, dispose
of a Seller Title Exception provided such Seller is fully and unconditionally
released from all liability thereunder at no expense or cost whatsoever to such
Seller and a Seller shall have the right to dispose of a Seller Title Exception
without Purchasers' consent, provided that settlement of such Seller Title
Exception shall (i) result in the release of the bond posted by Purchaser
respecting the Seller Title Exception, as described above, or (ii) if such bond
shall continue to secure other obligations, the settlement of such Seller Title
Exception shall not result in a draw down of the bond posted by Purchaser, and
if such bond shall not continue to secure other obligations, the bond shall be
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released to Purchaser, or (iii) Seller shall deposit with Purchaser the amount
of money required for the settlement of such Seller Title Exception prior to
entering into such settlement thereof. Purchaser, to the extent of the funds
that a Seller shall so deliver to Purchaser, shall, at the direction of such
Seller, make a settlement directly to the party with whom such settlement shall
be reached. In the event that all Seller Title Exceptions, which may be
satisfied by the payment of money only, exceed $5,000,000, in the aggregate,
Sellers may (i) provide one or more bonds in excess of the bonds to be provided
by Purchaser, as described immediately above, so that the Title Company shall
omit the same from the applicable Title Insurance Policy or (ii) elect to
terminate this Agreement, in which event Purchaser shall be entitled to a
return of, and Sellers shall promptly cause the Deposit to be delivered to
Purchaser. Upon such return and delivery, this Agreement shall terminate and
no party to this Agreement shall have any further obligations hereunder other
than those arising under Sections 10, 16(d) and 23 hereof. Notwithstanding
anything in this Subsection 4(c) to the contrary, if Sellers pursuant to the
terms of the immediately preceding sentence, shall elect to terminate this
Agreement, Purchaser shall have the right, to be exercised within five (5) days
after Purchaser's receipt of Sellers' election to terminate this Agreement
pursuant to this Section 4(c), to render Sellers' termination notice null and
void, in which case, the Closing shall occur hereunder (x) without any
reduction of the Purchase Price on account of the aggregate amount of the
Seller Title Exceptions being greater than $5,000,000; provided that FUR and/or
Sellers that shall be the owners of the Property(ies) affected by such Seller
Title Exceptions shall continue to be liable for such Seller Title Exception;
provided, however, FUR and/or Sellers shall not have any liability to Purchaser
to the extent that the amount of the Seller Title Exceptions shall be greater
than $5,000,000 in the aggregate or (y) to remove the subject Property from the
transaction pursuant to the provisions of Section 4(a)(ii). If
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Purchaser shall elect to terminate this Agreement pursuant to the terms of this
Section 4(c) and such termination shall not have been rendered null and void
pursuant to the preceding sentence, Seller shall be required to reimburse
Purchaser for certain expenses in accordance with the provisions of Section
16(d) hereof. In addition, if a Property is subject to a lien which was filed
against a Property with the consent of the respective Seller or arising out of
an affirmative act of Seller (each a "Consensual Lien") and such Consensual
Lien is in a liquidated amount that may be satisfied by the payment of money
only, then the applicable Seller shall (i) be obligated to discharge the same
by payment or bonding and (ii) shall cause the Title Company to omit the same
from the applicable Title Policy, without regard to the provisions of this
Section 4(c) relating to Purchaser's obligation to bond any Sellers Title
Exceptions up to an aggregate of $5,000,000.
(d) If the Report discloses judgments, bankruptcies or other
returns against other persons having names the same as, or similar to, that of
a Seller, said Seller shall, if requested, deliver to the Title Company
affidavits showing that such judgments, bankruptcies or other returns are not
against such Seller in order to induce the Title Company to omit exceptions
with respect to such judgments, bankruptcies or other returns or to insure over
the same.
5. Closing Date. (a) Subject to the satisfaction of all of the
Conditions to Closing, as set forth in Section 20 hereof, the closing of title
(the "Closing") shall take place at 10:00 A.M. on the earlier to occur of (A)
the second (2nd ) business day after FUR shall notify the Purchaser that it has
received the Shareholder Ratification (as hereinafter defined in Section 16(a)
hereof) and (B) December 29, 2000. The Closing shall occur at the office of
the Escrowee, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx or at the offices of
Purchaser's lender or its attorneys. Except as hereinafter set forth, TIME
SHALL BE OF THE ESSENCE, with respect to
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Purchaser's and Sellers' obligation to close hereunder as of December 29, 2000.
Notwithstanding the foregoing, if the closing of the sale of the Huntington
Garage shall have occurred prior to December 29, 2000, Purchaser shall have the
right to adjourn the Closing, at any time and from time to time to a date no
later than the earlier of (i) forty five (45) days after the date that FUR
shall notify Purchaser that it has received the Shareholder Ratification and
(ii) January 31, 2001. TIME SHALL BE OF THE ESSENCE, with respect to
Purchaser's obligation to close hereunder as of such date or if Sellers, in
accordance with the terms of this Section 5(a) shall have adjourned the
Closing, as of the date that the Closing shall have been adjourned to by
Sellers. Solely in the event that FUR has not held a shareholders meeting to
obtain the Shareholder Ratification, Sellers, subject to Section 5(b) below,
shall have the right to adjourn the Closing, from time to time, to any date
prior to April 30, 2001; provided that if Sellers shall have the right and
shall desire to adjourn the Closing to a date after December 29, 2000 and such
proposed adjourned date shall be later of (i) the last date that any lender
providing mezzanine financing to Purchaser or any lender agreeing to provide
mortgage financing for a Property shall be obligated to close its respective
loan, or (ii) as to any Mortgage where the holder of such Mortgage has
consented to Purchaser's assumption of such Mortgage, the last date that such
holder's consent to such assignment shall be effective, each such lender shall
agree to extend its outside closing date. Notwithstanding the provisions of
this Section 5(a) to the contrary, if Sellers shall have the right and shall
desire to adjourn the Closing to a date later than December 29, 2000, Purchaser
shall have the right, by notice to Sellers, to elect to terminate this
Agreement, on December 29, 2000 or February 28, 2001 (provided that the
Reasonable Expense Cap shall not be further increased pursuant to Section 16(b)
for any adjournment of the Closing by Sellers past the date that Purchaser
shall so elect to terminate) in which case, Purchaser shall be entitled to a
return of the
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Deposit and Sellers shall reimburse Purchaser for certain expenses in
accordance with the provisions of Section 16(d) hereof.
(b) If Sellers shall have the right and shall desire to adjourn the
Closing to a date later than December 29, 2000 and any of Purchaser's
prospective lenders or the holders of any existing Mortgages shall require that
Purchaser pay a fee as a condition to granting its consent to extend its
outside closing date and Purchaser, pursuant to Section 5(a) shall not have
elected to terminate this Agreement, Sellers, in their sole and absolute
discretion, shall have the right to determine whether Purchaser shall pay such
extension fees. If Sellers shall elect that Purchaser pay all extension fees
(i) Sellers shall be required to pay, at such time, a portion of such extension
fee to the lender providing the mezzanine financing to Purchaser in the
aggregate amount of 50% of the first $300,000 of extension fees that Purchaser
shall, from time to time, be required to pay to such lender in order to extend
the outside date, from time to time, and 85% of any extension fees that
Purchaser shall be required to pay to such lender, from time to time, in excess
of $300,000 and (ii) Sellers shall be required to pay, at such time, a portion
of such extension fees to the lender providing mortgage financing to Purchaser
or consenting to an assumption of a Mortgage in the aggregate amount of 50% of
the first $300,000 of extension fees that Purchaser shall, from time to time,
be required to pay in the aggregate, to such lenders that shall be providing
mortgage financing in order to extend the outside date from time to time and
85% of any extension fees that Purchaser shall be required to pay to such
lenders, from time to time, in excess of $300,000. Purchaser shall be required
to pay the balance of all such extension fees. If a lender shall state that it
will not extend its outside date or if Sellers shall advise Purchaser, in
writing, that Sellers do not elect that Purchaser pay to a lender the extension
fee that such lender is requiring that Purchaser pay, Sellers shall have the
right, to provide (or to
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cause another party to provide) to Purchaser at the Closing, financing on the
same or better terms than those terms that such lender was otherwise prepared
to provide to Purchaser, including any origination and/or termination fees.
Further, if Sellers shall elect to provide (or cause another party to provide)
to Purchaser such financing, as set forth in the immediately preceding
sentence, in such case, such Sellers shall then pay any and all break-up fees
required by such lenders which break-up fees shall be credited against
Reasonable Expenses, if any, for which Sellers are obligated to reimburse
Purchaser in accordance with the provisions of Section 16 hereof.
(c) If a lender shall not extend its outside date or if Sellers
shall not elect to pay the fees for such extension, if any, and Sellers shall
not have elected to provide Purchaser with the financing that such lender would
otherwise have provided to Purchaser, in such case, TIME SHALL BE OF THE
ESSENCE, with respect to Sellers' obligation to close hereunder as of December
29, 2000 or, if Purchaser, in accordance with the terms of Section 5(a) shall
have adjourned the Closing, as of the date that the closing shall have been
adjourned to by Purchaser. If Sellers shall fail to close hereunder as of such
date as to which TIME SHALL BE OF THE ESSENCE as to Sellers' obligation to
close hereunder because FUR has not held a shareholders meeting to obtain the
Shareholder Ratification, this Agreement shall terminate (provided Sellers
obligations under Section 24(b) shall continue until such termination) and
Sellers shall be required to reimburse Purchaser in accordance with the
provisions of Section 16(b) hereof.
(d) If the Purchase Price shall not be received by Sellers by 5:00
p.m. (New York time) on the Closing Date (as defined below), the Closing Date
for purposes of this Agreement, shall be deemed to have occurred on the next
succeeding business day. If requested by Purchaser, Sellers shall endeavor to
"pre-close" this transaction on one or more business days preceding the
Closing. Upon payment of the balance of the Purchase Price by Purchaser, in
the manner
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provided in Section 2 hereof, Sellers and Purchaser shall contemporaneously
therewith deliver to each other the documents referred to in Section 14 hereof.
The date on which the Closing shall take place is hereinafter referred to as
the "Closing Date".
6. Apportionments.
A. For purposes of this Agreement, the "Proration Date"
shall be May 31, 2000, as of 11:59 p.m. on such date, so that Purchaser shall
be treated, for purposes of this Section 6A, as if Purchaser was the owner of
each Property and was entitled to any revenues and was responsible for any
expenses from and after June 1, 2000 (other than as provided in Subsection
6A(l) hereof). Any apportionments and prorations which are not expressly
provided for below shall be made in accordance with the customs of the
respective municipalities or counties, as applicable, in which the respective
Properties are located. Purchaser and Sellers shall prepare a schedule of
adjustments for each Premises ("Schedule of Adjustments") prior to the Closing
Date. Such adjustments, if and to the extent known as of the Closing, shall be
paid at Closing by Purchaser to each Seller for whom the prorations for its
Property or Properties result in a net credit to said Seller or by a Seller to
Purchaser if the prorations for its Property or Properties result in a net
credit to Purchaser, by increasing or reducing, as the case may be, the amount
of the portion of the Cash Balance to be paid by Purchaser at the Closing to
each Seller. Any such adjustments not capable of being determined as of the
Closing shall be paid by Purchaser to the applicable Sellers, or by the
applicable Sellers to Purchaser, as the case may be, in cash as soon as
practicable following the Closing. Any apportionment or proration errors made
at the Closing are subject to correction if written notice thereof is given
within one hundred eighty (180) days after the Closing. Purchaser and Sellers
shall each act promptly and reasonably
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in connection with determining the prorations under this Section 6. This
Section 6 shall survive the Closing.
(a) (i) Interest on each Mortgage (whether or not such
Mortgage shall be assumed by Purchaser at Closing) shall be prorated on an
accrual basis. All interest payable under the Mortgages accruing and not paid
prior to the Proration Date shall be the obligation of Sellers, and Purchaser
shall be credited with an amount equal to such accrued and unpaid interest.
Purchaser shall be responsible for all interest payable under the Mortgages and
accruing after the Proration Date;
(ii) If, at Closing, a Mortgage shall be assumed by
Purchaser, Purchaser shall pay to Sellers at Closing the amount of monies that
were in the tax and insurance reserve account and/or tenant collections/lockbox
account held by the holder of such Mortgage as of the Proration Date, which
accounts were, as of the Proration Date, in the approximate aggregate amount of
$1,311,097, as more particularly set forth on Schedule H attached hereto.
(Hereinafter the tax and insurance reserve account and tenant
collections/lockbox account shall be referred to collectively as the "tax and
insurance reserve account"). In the event that a Mortgage shall not be assumed
by Purchaser at Closing, Seller shall be entitled to receive all monies in such
tax and insurance reserve account that shall be released by the holder of such
Mortgage, provided that in the event that the amount any such tax and insurance
reserve that is released to Sellers shall be greater than the amount of the
balance of such tax and insurance reserve account as of the Proration Date, the
amount of such excess shall be credited against the Cash Balance due from
Purchaser at Closing and if the amount of any such tax and insurance reserve
released to Sellers shall be less than the amount of the balance of such tax and
insurances reserve account as of the Proration Date, the amount of the Cash
Balance due from Purchaser at
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Closing shall be increased by the amount of such difference. Sellers and
Purchaser shall, from time to time, update Schedule H to reflect new information
as it is available.
(iii) Except as otherwise set forth in Subsection
6A(a)(ii) above and Subsection 6A(a)(iv) below, Purchaser shall be entitled to
all monies held in any operating reserve account, ground rent reserve account,
and any other reserves, escrows or escrow deposits (collectively, the "Other
Escrows") made with, or held by, each holder of a Mortgage, as of March 31,
2000 (which balance of such Other Escrows, as of March 31, 2000, was in the
approximate amount of $1,000,000 in the aggregate, as more particularly set
forth on Schedule I attached hereto) whether or not the respective Mortgage
shall be assumed by Purchaser at the Closing. Accordingly, if a Mortgage shall
be assumed by Purchaser and the amount of monies held in the Other Escrows as
of the Closing Date is less than the amount of monies that was held in the
Other Escrows as of March 31, 2000, Purchaser shall be entitled to a credit
against the Cash Balance due at Closing in the amount of such difference and if
the amount of the Other Escrows as of the Proration Date shall be greater than
the amount of the Other Escrows as of March 31, 2000, Sellers shall be entitled
to a credit against the Cash Balance due at Closing in the amount of such
excess. Further, if a Mortgage shall not be assumed by Purchaser at the
Closing, each Seller shall be entitled to retain the monies in the Other
Escrows which are released to such Seller by the holder of the respective
Mortgage and Purchaser shall be entitled to a credit against the Cash Balance
due at Closing in the amount of the Other Escrows held by the holder of such
Mortgage as of March 31, 2000 and in the event that the amount of the Other
Escrows released to a Seller in accordance with the terms of the immediately
preceding sentence shall be greater than the amount of the Other Escrows as of
the Proration Date, the amount of
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such excess shall also be credited against the Cash Balance due at Closing.
Sellers and Purchaser shall, from time to time, update Schedule I to reflect
new information as it is available.
(iv) Purchaser shall be entitled to all monies held
in any capital expenditure reserve ("Capital Expenditures Escrow") made with or
held by, each holder of a Mortgage, as of March 31, 2000 (which Capital
Expenditures Escrow were in the approximate amount $2,541,620.75, as of March
31, 2000 in the aggregate, as more particularly set forth on Schedule J
attached hereto), whether or not the respective Mortgage shall be assumed by
Purchaser at the Closing. Accordingly, if a Mortgage shall be assumed by
Purchaser and the amount of monies held in the Capital Expenditures Escrow is
less than the amount of monies that was held in such Capital Expenditures
Escrow as of March 31, 2000, Purchaser shall be entitled to a credit against
the Cash Balance due at Closing in the amount of such difference and if the
amount of the Capital Expenditures Escrow as of the Proration Date shall be
greater than the amount of the Capital Expenditures Escrow as of March 31,
2000, Sellers shall be entitled to a credit against the Cash Balance due at
Closing in the amount of such excess. Further, if a Mortgage shall not be
assumed by Purchaser at the Closing, the Seller of the Property that was
encumbered by such Mortgage shall be entitled to retain the monies in the
Capital Expenditures Escrow which are released to such Seller by the holder of
the such Mortgage, but, in such case, Purchaser shall be entitled to a credit
against the Cash Balance due at Closing in the amount of the Capital
Expenditures Escrow as of March 31, 2000 and, in the event that the amount of
the Capital Expenditures Escrow released to a Seller in accordance with the
terms of the immediately preceding sentence shall be greater than the amount of
the Capital Expenditures Escrow as of the Proration Date, the amount of such
excess shall also be credited against the Cash Balance due at
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Closing. Sellers and Purchaser shall from time to time, update Schedule J to
reflect new information as it is available.
(v) Upon the purchase of Madison and Xxxxx Garage by
First Union Madison, an escrow in the approximate amount of $600,000 ("Madison
Escrow") was established to secure the obligation of the prior owner of Madison
and Xxxxx Garage to pay for any increase in real estate taxes which are
assessed for the period prior to the sale of such Property. Prior to the
Closing, First Union Madison shall be entitled to use the Madison Escrow for
the purposes for which it was intended and to draw upon funds in the Madison
Escrow to accomplish same. At the Closing, First Union Madison shall assign to
Purchaser, all of First Union Madison's rights and obligations under the
Madison Escrow, if permitted by the terms of the Madison Escrow, or, if First
Union Madison shall not be permitted to make such assignment by the terms of
the Madison Escrow, First Union Madison shall return all remaining funds in the
Madison Escrow to the prior owner of Madison and Xxxxx Garage.
(b) Rentals. "Rental" or "Rentals" as used herein includes
fixed monthly rentals, additional rentals, percentage rentals, escalation
rentals, retroactive rentals, operating cost pass-throughs, parking charges,
utility charges, common area maintenance or management charges, administrative
charges, and other sums and charges payable by Tenants (as hereinafter defined)
under the Leases (all tenants, licensees, occupants and such other parties
occupying space pursuant to a Lease shall herein be referred to individually as
a "Tenant" or collectively as the "Tenants"). Subject to the provisions of
Subsections 6(c) and 6(d) hereof, Rentals shall be prorated at the Closing.
Sellers shall be entitled to all Rentals accruing on or
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prior to the Proration Date and Purchaser shall be entitled to all Rentals
accruing after the Proration Date. Purchaser shall not be entitled to any
credit or adjustment for any free rent or abated rent accruing after the
Proration Date.
(c) Delinquent Rentals. Fixed monthly rentals are
delinquent when payment thereof is due on or prior to the Proration Date but
has not been made by the Proration Date (any such fixed monthly rentals that
shall not be paid prior to the Proration Date being "Delinquent Rentals").
Delinquent Rentals shall be prorated between Purchaser and each Seller as of
the Proration Date but shall not be paid or credited until they are actually
collected by Purchaser or a Seller, as the case may be. Any fixed monthly
rentals collected by Purchaser or a Seller, as the case may be, after the
Proration Date less any costs of collection (including reasonable attorneys
fees) reasonably allocable thereto shall be applied first to Delinquent
Rentals, if any, and paid to the applicable Seller promptly upon receipt
thereof in the amount of such Delinquent Rentals, then to fixed monthly rentals
that shall accrue after the Proration Date and paid to Purchaser (but only at
or after the Closing). Notwithstanding the foregoing, if a Tenant shall be
disputing the amount of the Delinquent Rentals that such Tenant shall owe to
the applicable Seller, in such case, prior to the resolution of such dispute,
such Seller, to the extent of such disputed Delinquent Rentals, shall not be
entitled to receive payment of such Delinquent Rentals. Following the
resolution of any dispute with a Tenant regarding the amount of Delinquent
Rentals that such Tenant shall owe to the applicable Tenant, Purchaser shall
pay to the applicable Seller, an amount equal to the lesser of (i) the amount
of Delinquent Rentals that it is ultimately determined that such Tenant shall
owe to the applicable Seller and (ii) the amount of payments of fixed monthly
rentals that Purchaser shall have received pursuant to this Section 6(c).
Sellers shall have the right to settle and/or compromise any dispute with a
Tenant regarding
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any disputed Delinquent Rentals and in no event shall Purchaser have the right
to settle and/or compromise any such dispute. Purchaser shall use reasonable
efforts to collect Delinquent Rentals but shall have no obligation to commence
a legal proceeding to collect such sums. Each Seller retains the right after
the Closing to bring an action for damages against tenants for the recovery of
Delinquent Rentals, provided, however, in no event shall any such action
involve the termination of such tenant's Lease or the eviction of such tenant.
The parties confirm that all amounts due and payable in respect of Leases which
have expired or otherwise terminated prior to the Proration Date shall be the
sole property of the applicable Seller and, notwithstanding anything to the
contrary contained herein, such Seller may take such actions as it desires to
collect such amounts. Notwithstanding the provisions of this Subsection 6(c)
to the contrary, any amount collected by any Seller applicable to the period of
time prior to the Proration Date in connection with any such action shall be
retained by said Seller. Each Seller and Purchaser shall from time to time for
a period of one (1) year following the Closing, and upon request of the other
party, provide the requesting party with reasonably detailed information
regarding the status of such party's collection of Delinquent Rentals.
(d) Operating Cost Pass-Throughs, Etc. Operating cost
pass-throughs, utility charges, common area maintenance charges, administrative
charges, percentage rentals, additional rentals and other retroactive rental
escalations, sums or charges payable by Tenants which accrue as of the
Proration Date but are not then due and payable or collected ("Pass-Throughs"),
shall be prorated as of the Proration Date; provided, however, no payment or
credit thereof shall be made to the applicable Seller unless and until
Purchaser and/or Seller collects same from the Tenants. All such amounts
payable by Tenants for the period accruing prior to the Proration Date shall
belong to the applicable Seller and all such amounts payable by Tenants for
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the period accruing after the Proration Date shall belong to Purchaser. Any
Pass-Throughs collected by Purchaser or a Seller, as the case may be, after the
Proration Date (less any costs of collection, including reasonable attorneys
fees reasonably allocable thereto) shall be applied (i) first, if a Tenant
making a payment shall designate the receivable against which such payment shall
be applied, in accordance with such Tenant's written direction, and (ii) second,
against such fiscal or calendar period for which the Pass-Throughs pertain and
in which the Proration Date shall occur, it being agreed that the Pass-Throughs
shall be allocated between Seller and Purchaser based upon the portion of such
fiscal or calendar period that shall occur prior to the Proration Date and the
portion of such fiscal or calendar period that shall occur after the Proration
Date, (iii) third, to the period that occurs after the period described in
clause (ii) above and (iv) fourth, to the period that occurs prior to the period
described in clause (ii) above.
(e) Taxes. Real estate taxes (including business
improvement district charges) on a Property (excluding taxes paid directly to
the taxing authority by Tenants or parties to a reciprocal easement agreement)
shall be prorated based on the actual current tax xxxx. If such tax xxxx has
not yet been received by the Closing Date, then Purchaser and each Seller shall
estimate the real estate taxes based upon Purchaser's and such Seller's good
faith estimate of the change in the amount of the previous year's tax xxxx and
Purchaser and Seller shall after the Closing re-prorate the real estate taxes
as soon as the actual current tax xxxx is available. All amounts payable for
real estate taxes accruing through the Proration Date shall be the obligation
of the applicable Seller and all amounts payable for real estate taxes accruing
after the Proration Date shall be the obligation of Purchaser. If, after the
Closing Date, any additional or supplemental real estate taxes are assessed
against a Property by reason of back assessments, corrections to previous tax
bills or other events occurring prior to the Proration Date, Purchaser
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and the applicable Seller shall re-prorate the real estate taxes following the
Closing. Any delinquent taxes on a Property shall be paid at the Closing from
funds accruing to the applicable Seller.
(f) Operating Expenses. All utility service charges and
fees for sewer, water, electricity, heat and air conditioning service, other
utilities, fuel oil, elevator maintenance, taxes other than real estate taxes
such as rental taxes, reciprocal easement agreement charges and fees,
management fees (except that only two-thirds of the amount of management fees
payable to Radiant Partners LLC shall be used for proration purposes),
insurance, other ordinary and customary expenses incurred by a Seller in
operating its Property that said Seller reasonably and customarily pays, and
all other costs incurred in the ordinary course of business of such Seller in
connection with the operation of its Property, shall be prorated on an accrual
basis. The applicable Seller shall be responsible for all such expenses that
accrue through the Proration Date and Purchaser shall be responsible for all
such expenses which are payable or accrue after the Proration Date. Such
Seller shall be credited with an amount equal to any prepaid expenses which
relate to the period after the Proration Date and Purchaser shall be credited
with an amount equal to any unpaid expenses which relate to the period prior to
the Proration Date, but only if such expenses shall have been paid for by
Sellers after the Proration Date and prior to the Closing Date. Operating
expenses that have been paid directly by a tenant shall not be prorated.
(g) Tenant Deposits. Purchaser shall be credited with and
the applicable Seller shall be debited with the sum of all Tenant security
deposits (and any interest due to Tenants thereon) required to be held by
Sellers pursuant to the terms of the respective Leases, as more specifically
set forth on Schedule K attached hereto; provided, however, Sellers shall be
entitled to retain any administrative fees allowed by law that shall have
accrued on such
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Tenant security deposits as of the Proration Date. Sellers and Purchaser
shall, from time to time, update Schedule K to reflect new information as it is
available.
(h) Ground Leases. Rents and other charges due to the
landlords under the Ground Leases shall be prorated as of the Proration Date.
In addition, the Sellers shall receive a credit against the Purchase Price for
any security deposit (and any interest due thereon) deposited by Sellers with
the landlords under the Ground Leases.
(i) License and Permit Fees. Periodically recurring
governmental fees for transferable Licenses issued in respect of any Premises
for the use of any part thereof, if assignable and to the extent assigned,
shall be prorated between Purchaser and the applicable Seller as of the
Proration Date on an accrual basis. Said Seller shall be responsible for all
amounts due thereunder which accrue through the Proration Date and Purchaser
shall be responsible for all amounts which accrue after the Proration Date.
(j) Club Associates Note Interest. Interest due or paid, as
the case may be, under the Club Associates Note shall be prorated as of the
Proration Date.
(k) Pecanland Mall Adjacent Land Credit; Huntington Garage
Credit. Purchaser shall be entitled to a credit in the amount of $531,227
arising out of the sale of the Schedule A-6-1 Parcel which occurred prior to
the date hereof. In addition, if applicable, Purchaser, at the Closing, shall
be entitled to the Pecanland Mall Adjacent Land Credit and the Huntington
Garage Credit.
(l) Capital Expenditures. If (i) any Seller, prior to the
Proration Date, shall have paid for any Capital Expenditures that shall have
been committed to after May 9, 2000, such Seller shall be entitled to a credit
in the aggregate amount of such payments, (ii) any Seller at any time after the
Proration Date, shall have paid for any Capital Expenditures that shall have
been
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committed to by any Seller prior to May 9, 2000, Purchaser shall be entitled to
a credit at Closing in the aggregate amount of such payments, (iii) any Capital
Expenditures for the Properties committed to by each Seller and/or any of their
respective agents and/or authorized representatives prior to May 9, 2000 shall
not have been performed by a Seller prior to the Closing Date, Purchaser shall
be entitled to a credit at Closing in the amount of the value of such Capital
Expenditures that shall not have been performed and (iv) if any Capital
Expenditures of the nature described in clauses (2) and (3) of the definition
of Capital Expenditures which were committed to prior to May 9, 2000 shall
remain unpaid as of the Proration Date, Purchaser shall be entitled to a credit
in an amount equal to the aggregate amount of such unpaid Capital Expenditures
but only if such unpaid Capital Expenditures shall have been paid for by
Sellers after the Proration Date and prior to the Closing Date.
(m) Other Accounts. Purchaser shall be entitled to a credit
at Closing in an amount of $2,513,517 ("Richmond Fund") plus all interest
earned thereon, less all hard and soft costs of construction that shall have
been paid or shall be payable as of the Closing Date in connection with certain
improvements to be made or being made to the 5th and Xxxxxxxx Garage.
Notwithstanding anything herein to the contrary, the improvements to the 5th
and Xxxxxxxx Garage shall not be considered a Capital Expenditure pursuant to
Subsection 6A(l) above.
(n) Other. Any other customary adjustments made in
connection with the sale of properties similar in type to the applicable
Property shall be prorated between Purchaser and each Seller as of the
Proration Date.
B. (a) Supplementing the provisions of Section 6A
above, as to any Property, if the aggregate amount of Purchaser Revenue (as
hereinafter defined) that Seller shall receive after the Proration Date shall
be greater than the amount of Purchaser Expenses (as
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hereinafter defined) that such Seller shall have incurred and/or paid for after
the Proration Date, the Purchase Price for such Property shall be decreased by
the amount of such excess. In the alternative, as to any Property, if the
aggregate amount of the Purchaser Revenue that Seller shall receive after the
Proration Date shall be less than the amount of Purchaser Expenses that Seller
shall have incurred and/or paid for after the Proration Date, the Purchase
Price for such Property shall be increased by the amount such Purchaser
Expenses exceed Purchaser Revenue.
(b) For purposes of this Agreement, the term "Purchaser
Revenue" shall mean all revenues that a Seller shall receive from the operation
of a Property after the Proration Date which Purchaser, pursuant to the
provisions of Section 6A above, shall be entitled to receive and the term
"Purchaser Expenses" shall mean all expenses arising from the use, operation
and management of a Property, including Capital Expenditures, which a Seller
shall have incurred (whether or not payment shall have been made) from and
after the Proration Date (or in the case of Capital Expenditures, including,
without limitation, tenant improvement expenses from and after May 9, 2000).
7. Assessments. If, on the Proration Date, the Premises or any
part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in annual installments, and the
first installment is then a charge or lien or has been paid, then for the
purposes of this Agreement all the unpaid installments shall be deemed to be
due and payable and to be a lien upon the Premises and shall be paid and
discharged by the applicable Seller as of the Closing Date.
8. Condition of the Sale Assets.
(a) Sellers will permit Purchaser, for itself or on behalf
of, or in conjunction with its prospective lenders or equity investors and each
of their respective agents
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and representatives, the right to inspect the Buildings and review the books,
records and Property files of the Sellers and to conduct or cause to be
conducted such tests, evaluations and assessments of the Property as may be
necessary, appropriate or desirable in connection with the acquisition of the
Properties, provided, however, that all such inspections, tests, evaluations
and assessments (collectively, "Inspection Activities") shall hereafter be
subject to the following conditions:
(i) No Inspection Activity which involves
boring, digging, drilling or other physical intrusion of the
Property shall be conducted without the prior written consent of
the Sellers, which consent shall not be unreasonably withheld or
delayed.
(ii) Purchaser shall promptly restore the
Property, at Purchaser's sole cost and expense, to the state and
condition it was in prior to being disturbed or damaged by any
Inspection Activity.
(iii) Any Inspection Activity conducted with
respect to a Building shall not be unreasonably intrusive and
shall not have any adverse effect on the structural integrity of
the building.
(iv) No Inspection Activity shall be conducted
inside the space demised to any Tenant or otherwise in any
manner that would interfere with the business or operations
conducted by any Tenant.
(v) Purchaser shall indemnify and hold
harmless the Sellers and their respective members, trustees,
directors, officers, employees and agents from and against any
and all liability, claims, losses, damages, injuries to persons
or to property and expenses (including, without limitation,
reasonable legal fees and
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disbursements) suffered by the Sellers or their respective
members, trustees, directors, offices, employees or agents by
reason of or resulting from the Inspection Activities.
(vi) All Inspection Activities shall be
conducted in compliance with all applicable federal, state and
local laws, rules, regulations, ordinances, orders and permits.
(vii) With respect to any inspections that
Purchaser shall perform after the date hereof, Purchaser and/or
its contractors shall procure the following insurance coverage
to cover the risks associated with the Inspection Activities, in
the minimum amounts set forth below:
(A) Workers Compensation Insurance in
accordance with statutory requirements and
Employer's Liability Insurance with a minimum
limit of $500,000 each accident;
(B) Commercial General Liability
Insurance (occurrence form), including premises,
contractual liability, products/completed
operations, independent contractors and broad
form property damage coverage with the following
limits of liability: Bodily Injury - $1,000,000
each occurrence; Property Damage - $1,000,000
each occurrence or $2,000,000 combined single
limit;
(C) Comprehensive Automobile Liability
Insurance, including coverage for all owned,
non-owned and hired automobiles used in the
performance of the work with the following
minimum limits of liability: Bodily Injury -
$1,000,000 each occurrence;
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Property Damage - $1,000,000 each occurrence or
$2,000,000 combined single limit; and
(D) Environmental/Pollution Liability,
including bodily injury and property damage
liability associated with the removal and/or
disposal of hazardous wastes and/or materials
with the following minimum limits of liability:
Bodily Injury - $2,000,000 each occurrence;
Property Damage - $2,000,000 each occurrence or
$4,000,000 combined single limit.
All insurance shall provide for thirty (30) days
written notice prior to cancellation, shall name the applicable
Seller as an additional insured, and shall provide that all
liability coverage is primary and without the right of
contribution from insurance carried by such Seller. Prior to
commencing any Inspection Activity at or on a Property,
Purchaser shall submit to the applicable Seller a binder of such
insurance or certificates thereof with the same force and effect
as a binder.
(viii) Prior to commencing any environmental
Inspection Activity at or on the Property after the date hereof,
Purchaser shall provide the applicable Seller at least five (5)
business days advance notice of its intent to have such
Inspection Activity performed.
(ix) Each Seller shall at all times during the
course of any Inspection Activities and after their completion
have the right to inspect all Inspection Activities of Purchaser
and its contractors and their subcontractors at or on the
Property. Each Seller shall also have the right to inspect and
copy all
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studies, reports, test results, data and other information and
material collected or generated in the course of any Inspection
Activities.
(x) Notwithstanding the provisions of Section
8(a)(i) hereof, no environmental Inspection Activity other than
a Phase I environmental site assessment shall be performed
without the prior written consent of the applicable Seller.
(xi) The rights granted to Purchaser under
this Subsection 8(a) are solely for informational purposes,
shall in no event be construed to modify the provisions of
Subsection 8(b) hereof nor shall any information obtained
through such Inspection Activity be a basis for Purchaser not
performing its obligations under this Agreement.
(b) Purchaser agrees to accept the Sale Assets in
their "as is", "where is" condition on the date hereof, subject to (i)
reasonable use, wear, tear and natural deterioration between the date hereof
and the Closing Date, and (ii) the provisions of Section 9 hereof. Purchaser
(i) has or will examine, inspect and investigate to the full satisfaction of
Purchaser, the physical nature and condition of the Sale Assets, (ii) has or
will independently investigate, analyze and appraise the value and
profitability of the Sale Assets, and (iii) has reviewed such other documents
and materials as Purchaser has deemed advisable. Purchaser acknowledges that,
except as specifically set forth in this Agreement, neither Sellers, nor any
real estate broker, employee, servant, agent, consultant, accountant, attorney
or representative of any Seller has made any representations or warranties
whatsoever regarding the subject matter of this Agreement or the transactions
contemplated hereby, including without limitation, with respect to the physical
nature or condition of the Sale Assets, the revenues generated by or expenses
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associated with the Sale Assets, zoning laws, building codes, laws and
regulations, environmental matters, the violation of any laws, ordinances,
rules, regulations or orders of any Governmental Authority, water, sewer or
other utilities, rents or other income, expenses applicable to the Sale Assets,
capital expenditures, leases, existing or future operations of the Sale Assets
or any other matter or thing affecting or related to the Sale Assets or the
operation thereof. In executing, delivering and/or performing this Agreement,
Purchaser has not relied upon and does not rely upon, and no Seller shall be
liable or bound in any manner by, express or implied warranties, guaranties,
promises, statements, representations or information pertaining to any of the
matters set forth above in this Section 8 or otherwise made or furnished by any
Seller or by any real estate broker, employee, servant, agent, consultant,
accountant, attorney or any other person representing or purporting to
represent any Seller to whomever made or given, directly or indirectly,
verbally or in writing, unless such warranties, guaranties, promises,
statements, representations or information are expressly and specifically set
forth in this Agreement.
(c) Purchaser waives and releases Sellers from any present
or future claims arising from or relating to the presence or alleged presence
of any Hazardous Materials (as hereinafter defined) in, on, under or about the
Properties, including, without limitation, any claims under (i) any
Environmental Laws (as hereinafter defined), (ii) any other federal, state or
local law, ordinance, rule or regulation, now or hereafter in effect, that
deals with or otherwise in any manner relates to, environmental matters of any
kind, (iii) this Agreement, or (iv) the common law. The terms and provisions
of this Subsection 8(c) shall survive the Closing. "Environmental Laws" mean
all federal, state, local and foreign environmental, health and safety laws,
codes and ordinances and all rules and regulations promulgated thereunder,
including,
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without limitation laws relating to emissions, discharge, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including,
without limitation, air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals, or industrial, solid, toxic or hazardous
substances or wastes. As used in this Agreement, the term "Hazardous
Materials" includes, without limitation, (i) all substances which are
designated pursuant to Section 311(b)(2)(A) of the Federal Water Pollution
Control Act ("FWPCA"), 33 U.S.C. '1251 et seq.; (ii) any element, compound,
mixture, solution, or substance which is designated pursuant to Section 102 of
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. '9601 et seq.; (iii) any hazardous waste having the
characteristics which are identified under or listed pursuant to Section 3001
of the Resource Conservation and Recovery Act ("RCRA"), '6901 et seq.; (iv) any
toxic pollutant listed under Section 307(a) of the FWPCA; (v) any hazardous air
pollutant which is listed under Section 112 of the Clean Air Act, 42 U.S.C.
'7401 et seq.; (vi) any imminently hazardous chemical substance or mixture with
respect to which action has been taken pursuant to Section 7 of the Toxic
Substance Control Act, 15 U.S.C. '2601 et seq.; and (vii) petroleum, petroleum
products, petroleum by-products, petroleum decomposition by-products, and waste
oil; (viii) "hazardous materials" within the meaning of the Hazardous Materials
Transportation Act, 49 U.S.C. ' 1802 et seq., (ix) any hazardous substance or
material identified or regulated by or under any applicable provisions of the
laws of the State in which the applicable Property is located; (x) asbestos or
any asbestos containing materials; (xi) any radioactive material or substance;
(xii) all toxic wastes, hazardous wastes and hazardous substances as defined
by, used in, controlled by or
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subject to all implementing regulations adopted and publications promulgated
pursuant to the foregoing statutes; and (xiii) any other hazardous or toxic
substance or pollutant identified in or regulated under any other applicable
federal, state or local laws.
(d) Notwithstanding anything in this Section 8 to the
contrary, in the event any Phase I environmental site assessment performed at a
Property recommends that a Phase II environmental site assessment be performed
on such Property, and the Seller of such Property notifies Purchaser that such
Seller does not consent to the Phase II environmental site assessment being
performed thereon, Purchaser must, within five (5) days after receipt of such
Seller's notice pursuant to this Section 8(d), elect to either continue with
this transaction without any abatement or adjustment to the Purchase Price or
not purchase such Property that is the subject of the Phase II environmental
assessment. If Purchaser shall elect not to purchase such Property, the
Purchase Price pursuant to Section 2(a) hereof shall be reduced by the portion
of the Purchase Price that is allocated to such Property pursuant to Schedule
B-1 and the Cash Balance shall be reduced by the portion of the Cash Balance
that is allocated to such Property pursuant to Schedule B-2. In addition,
Sellers shall be required to reimburse Purchaser for certain expenses in
accordance with the provisions of Section 16(d) hereof.
9. Casualty and Condemnation.
(a) If, prior to the Closing, all or any portion of a
Property is damaged by fire, the elements or any other casualty or is taken by
eminent domain or otherwise, then, notwithstanding anything to the contrary
implied or provided by law or in equity, Purchaser shall not have the right to
terminate this Agreement and (i) the parties shall proceed to the Closing in
accordance with this Agreement, (ii) all proceeds or awards received by the
applicable Seller, or such Seller's rights to such proceeds or awards, from
such taking or casualty (after deducting
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Seller's reasonable cost of collecting the same and any reasonable expenses
that Seller shall have incurred in repairing or restoring the Property) shall
be assigned by said Seller to Purchaser at the Closing, and (iii) the Purchase
Price shall be abated to the extent of any deductible. Notwithstanding any
provisions in this Section 9 to the contrary, if (1) all or a portion of a
Property is damaged by fire, the elements or any other casualty, (2) the
amount of such casualty, together with the amount of the casualty, if any,
affecting any of the other Properties, shall be greater than $500,000 (the
"Casualty Threshold") and (3) such Property is either subject to a mortgage
commitment whereby the prospective lender will no longer finance such Property
due to the casualty thereon or encumbered by a Mortgage whereby the holder of
such Mortgage will no longer permit Purchaser to assume the Mortgage due to the
casualty thereon, Sellers shall provide financing to Purchaser in an aggregate
amount with respect to all of the Properties that shall be damaged by a fire,
the elements or other casualty equal to the lesser of $30,000,000 and the
amount by which the aggregate of the mortgage commitments and Mortgages
described in clause (3) shall be greater than the Casualty Threshold; provided,
however, if the Property described in clause (3) shall be the Pecanland Mall,
then Sellers shall provide financing to Purchaser in an aggregate amount with
respect to all of the Properties that shall be damaged by a fire, the elements
or other casualty equal to the lesser of $46,000,000 and the amount by which
the aggregate of the mortgage commitments and Mortgages described in clause (3)
shall be greater than the Casualty Threshold. The amount of the PMM Financing
to be provided for a Property shall not exceed the amount of Mortgage
encumbering the Property at the time of the casualty or the amount of the
mortgage commitment that Purchaser shall have received for such Property.
Such financing shall be upon similar terms and conditions of the PMM Financing
described in Section 25 hereof with the following exceptions: (a) the maturity
date of the PMM
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Financing shall be the second anniversary of the Closing Date and (b) the
interest rate for the first six (6) months shall be equal to eleven percent
(11%) per annum and shall thereafter be equal to twelve percent (12%) per
annum.
(b) In the event Purchaser's equity investors and/or
mezzanine lenders will no longer finance such Property due to the casualty
thereon, Sellers shall have the right, but not the obligation, to increase the
amount of PMM Financing to be provided under Section 9(a) above up to the
amount of funding which such equity investor(s) and/or mezzanine lender(s) was
to have financed with Purchaser. If Seller shall not elect to provide such
additional PMM Financing, Seller shall so notify Purchaser of such fact.
Purchaser must, within five (5) days after receipt of Seller's notice pursuant
to this Section 9(b), elect either to continue with this transaction without
any abatement or adjustment to the Purchase Price or to not purchase such
Property that shall be affected by a casualty. If Purchaser shall fail to make
the foregoing election within such five (5) day period, Purchaser shall be
deemed to have elected to continue with the transaction without reduction or
abatement of the Purchase Price. If Purchaser shall elect not to purchase a
Property, the Purchase Price pursuant to Section 2(a) hereof shall be reduced
by the portion of the Purchase Price that is allocated to such Property
pursuant to Schedule B-1 and the Cash Balance shall be reduced by the portion
of the Cash Balance that is allocated to such Property pursuant to Schedule
B-2. In addition, Sellers shall be required to reimburse Purchaser for certain
expenses in accordance with the provisions of Section 16(d) hereof.
10. Brokers.
(a) Purchaser and Sellers represent to each other that they
have not dealt with any broker or finder in connection with this transaction.
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(b) Purchaser hereby agrees to indemnify, defend and hold
each Seller harmless from and against any and all claims, losses, liability,
costs and expenses (including reasonable attorneys' fees) resulting from any
claim that may be made against such Seller by any broker, or any other person
claiming a commission, fee or other compensation by reason of this transaction,
if the same shall arise by, through or on account of any alleged act of
Purchaser or Purchaser's representatives.
(c) Sellers hereby agree to indemnify, defend and hold
Purchaser harmless from and against any and all claims, losses, liability,
costs and expenses (including reasonable attorneys' fees) resulting from any
claim that may be made against Purchaser by any broker, or any other person
claiming a commission, fee or other compensation by reason of this transaction,
if the same shall arise by, through or on account of any alleged act of a
Seller or any Seller's representatives.
(d) The provisions of this Section 10 shall survive the
Closing, or if the Closing does not occur, the termination of this Agreement.
11. Tax Reduction Proceedings. If any Seller has heretofore filed
applications for the reduction of the assessed valuation of its Premises and/or
instituted certiorari proceedings to review such assessed valuations for any
tax years prior to the tax year of Closing, Purchaser acknowledges and agrees
that such Seller shall have sole control of such proceedings, including the
right to withdraw, compromise and/or settle the same or cause the same to be
brought on for trial and to take, conduct, withdraw and/or settle appeals, and
Purchaser hereby consents to such actions as said Seller may take therein.
Prior to the Closing, no Seller shall withdraw, compromise or settle any such
proceedings for any fiscal period in which the Proration Date occurs or any
subsequent fiscal period without the prior written consent of Purchaser, which
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consent shall not be unreasonably withheld or delayed. Any refund or tax
savings for any year or years prior to the tax year in which the Proration Date
occurs shall belong solely to the applicable Seller. Any tax savings or refund
for the tax year in which the Proration Date occurs shall be prorated in
accordance with Section 6 hereof between the applicable Seller and Purchaser
after deduction of reasonable attorneys' fees and other reasonable expenses
related to the proceeding. Purchaser and such Seller shall each execute all
consents, receipts, instruments and documents which may reasonably be requested
in order to facilitate settling such proceeding and collecting the amount of
any refund or tax savings. If Seller receives any tax refund or credit,
Seller shall, after deducting the reasonable expenses of the collection
thereof, pay to Purchaser, promptly after the receipt of such funds or credit,
the portion, if any, of such refund or credit to which the past and/or present
Tenants of the Building may be entitled (whether by way of refund or rent
credit) under the terms of their respective Leases or any other agreements).
The provisions of this Section 11 shall survive the Closing.
12. Recording Charges, Transfer Taxes, Mortgage Assumption Costs,
Title Insurance Charges, Survey Costs.
(a) At the Closing, Sellers and Purchaser agree to complete,
sign, acknowledge and file any and all forms required for the transactions
contemplated by this Agreement with respect to transfer taxes and sales taxes.
(b) Sellers, on the one hand, and Purchaser, on the other
hand, shall each pay at the Closing, to the appropriate recipients and in the
manner required by said recipients, fifty (50%) percent of the following costs
associated with the transactions contemplated by this Agreement, provided,
however, in the event the aggregate amount of such costs shall exceed FOUR
MILLION ($4,000,000) DOLLARS, the Sellers shall, collectively,
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pay only TWO MILLION ($2,000,000) DOLLARS in the aggregate and Purchaser shall
pay the entire remaining balance thereof:
(i) transfer or similar taxes;
(ii) sales or similar taxes;
(iii) costs incurred in connection with the assumption
of the Mortgages by Purchaser, including without limitation, consent and
assumption charges, and the attorney's fees and disbursements of mortgagees'
counsel, but excluding, however, (x) any fees, charges or other costs imposed
by the holders of the Mortgages by reason of any mezzanine or other financing
obtained by Purchaser, which shall be Purchaser's sole responsibility and (y)
any extensions and/or break-up fees due to a lender providing the mezzanine
financing to Purchaser or to a lender providing mortgage financing to Purchaser
or consenting to an assumption of a Mortgage, upon an adjournment of the
Closing by Sellers to a date later than December 29, 2000, shall be handled in
accordance with the provisions of Section 5(b) above;
(iv) if a Mortgage is not assumed by Purchaser, costs
incurred in connection with the prepayment of said Mortgage including, without
limitation, prepayment fees, premiums and charges and the attorney's fees and
disbursements of mortgagee's counsel;
(v) title insurance premiums and costs;
(vi) survey costs; and
(vii) recording charges.
(c) Each party shall be responsible for the payment of its
own counsel's fees and disbursements and Purchaser shall be responsible for the
payment of all costs it incurs with respect to any mezzanine or other financing
that it obtains, except that if Seller, pursuant to Section 5, Section 9 and/or
Section 25 hereof, shall provide any PMM Financing to
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Xxxxxxxxx, Xxxxxxxxx and such Seller shall each pay one-half (1/2) of the costs
and expenses that such Seller shall incur in connection with providing such PMM
Financing, including, without limitation, all reasonable attorneys fees and
disbursements.
(d) The obligations arising pursuant to this Section 12
shall survive the Closing.
13. Representations and Warranties.
(a) Each Seller, as to itself only, represents and warrants
to Purchaser that the following are true and correct as of the date hereof and
shall be true and correct in all material respects as of the Closing Date:
(i) This Agreement, including the provisions of
Section 16 hereof, constitutes the legal, valid and binding obligations of each
Seller, enforceable against each Seller in accordance with its terms. Each
Seller has taken all necessary action to authorize and approve the execution
and delivery of this Agreement and, subject to obtaining the Shareholder
Ratification (as hereinafter defined), will have taken all necessary actions to
sell the Properties to Purchaser, subject to and in accordance with the terms
of this Agreement, and the execution and delivery of this Agreement and the
performance by each Seller of its obligations hereunder do not and will not (a)
conflict with or violate any law, rule, judgment, regulation, order, writ,
injunction or decree of any Governmental Authority with jurisdiction over such
Seller or the Sale Assets, including, without limitation, the United States of
America, any State in which the Sale Assets are located or any political
subdivision of either of the foregoing, or any decision or ruling of any
arbitrator in an arbitration to which said Seller is a party or by which such
Seller or its Property is bound or affected, or (b) violate or constitute a
default under any
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material document or instrument to which such Seller is a party or is bound or
any of said Seller's organizational or governing documents.
(A) 00 Xxxxxx, Xxxxx Xxxxxx Xxxx, Xxxxxxxxx Centers
and Printers Alley are each a limited liability company duly organized and
validly existing under the laws of the State of Delaware;
(B) First Union Madison is a limited liability
company duly organized and validly existing under the laws of the State of
Illinois;
(C) FUR is an unincorporated association in the form
of a business trust duly organized and created under the laws of the State of
Ohio; and
(D) FUCP is a corporation duly formed and validly
existing under the laws of the State of Delaware.
(ii) No Seller is a "foreign person" as defined in the
Internal Revenue Code Section 1445.
(iii) No Seller is a party as debtor to any insolvency
or bankruptcy proceeding or assignment for the benefit of creditors.
(iv) Each Seller has the full right and authority and
has obtained any and all corporate consents and board of trustees approvals
required to enter into this Agreement, and subject to obtaining the Shareholder
Ratification, will have obtained any and all corporate consents and board of
trustee approvals required to consummate or cause to be consummated the sale
and make or cause to be made transfers and assignments contemplated herein; the
persons signing this Agreement on behalf of each Seller are authorized to do
so; and this Agreement and all of the documents to be delivered by Sellers at
the Closing have been
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authorized and properly executed and will constitute the valid and binding
obligations of Seller, enforceable against Seller in accordance with their
terms.
(b) Purchaser represents and warrants to Sellers that the
following are true and correct as of the date hereof and shall be true and
correct in all material respects as of the Closing Date:
(i) This Agreement constitutes the legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms. Purchaser has taken all necessary action to authorize and
approve the execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement.
(ii) The execution and delivery of this Agreement and
the performance by Purchaser of its obligations hereunder do not and will not
(a) conflict with or violate any law, rule, judgment, regulation, order, writ,
injunction or decree of any Governmental Authority with jurisdiction over
Purchaser, including, without limitation, the United States of America, any
State in which the Sale Assets are located or any political subdivision of
either of the foregoing, or any decision or ruling of any arbitrator in an
arbitration to which Purchaser is a party or by which Purchaser is bound or
affected, or (b) violate or constitute a default under any material document or
instrument to which Purchaser is a party or is bound or any of Purchaser's
organizational or governing documents.
(c) The above-stated representations and warranties by
Sellers and Purchaser shall survive the Closing for six (6) months.
14. Deliveries to be made on the Closing Date.
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(a) Seller's Documents: Sellers, pursuant to the provisions
of this Agreement, shall deliver or cause to be delivered to Purchaser on the
Closing Date the following instruments, documents and items:
(i) Duly executed and acknowledged bargain and
sale deeds without covenants (or their equivalent for the State in which the
applicable Property shall be located) (the "Deeds").
(ii) Duly executed certifications as to each
Seller's non-foreign status as prescribed in Section 18 hereof, if applicable.
(iii) Any consents of members, partners,
shareholders or directors of any Seller whose consent shall be required to
authorize the sale of the Properties to Purchaser, in form reasonably
satisfactory to Purchaser and the Title Company.
(iv) The Shareholder Ratification and the Board
Consent.
(v) Duly executed counterparts of an Assignment
and Assumption of Leases for each Property in the form of Exhibit A annexed
hereto and made a part hereof.
(vi) Duly executed counterparts of an Assignment
and Assumption for each Ground Lease in the form of Exhibit B annexed hereto
and made a part hereof.
(vii) Intentionally Deleted.
(viii) The Leases, Contracts and Licenses affecting
the Premises that are in Sellers' possession (other than those that are held by
Radiant or any managing agent for the Premises and those Licenses that must
remain at the Premises).
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(ix) The Estoppel Certificates required pursuant
to Section 17 hereof.
(x) If required by Purchaser's mezzanine lender
or any other lender providing financing for a Property, an updated Rent Roll
together with a list of delinquent and unpaid rent, accompanied by an
instrument executed by the applicable Seller, addressed to Purchaser, pursuant
to which said Seller states, without representation or warranty, that it has no
actual knowledge that said Rent Roll is not true and correct in all material
respects as of the Closing Date. In addition, either such instrument (or a
separate instrument) shall contain a provision pursuant to which Purchaser,
acknowledges that it shall have no rights, remedies or recourse of any nature
whatsoever against Seller by reason of the foregoing statement by Seller not
being true, correct or complete in any respect. In the event that Purchaser's
mezzanine lender or any other lender providing financing for a Property
requires a certified updated Rent Roll, as described above in this Section
14(a)(x), pursuant to which Seller shall represent and warrant that is has no
actual knowledge that said Rent Roll is not true and correct in all material
respects as of the Closing Date, Purchaser shall cause to be provided to the
Seller of such Property a complete and unconditional indemnification from
Indemnitor, in form reasonably acceptable to Seller, against all liability that
Seller shall incur on account of such Seller having delivered such
representation and warranty.
(xi) A letter to the tenants of the Premises in
the form annexed hereto as Exhibit C.
(xii) Duly executed counterparts of all transfer
tax and sales tax returns required to be signed by Sellers.
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(xiii) If the Closing shall not be a "New York
style" closing, each Seller shall deliver an indemnification to the Title
Company pursuant to which Seller shall indemnify the Title Company against any
liens that may arise from and after the Closing Date until the recordation of
the Deeds but only if, and to the extent that, such liens shall arise on
account of matters which such Seller pursuant to Section 6 hereof shall be
required to pay for. Such other documents, instruments and deliveries as are
otherwise required by this Agreement or required to record the Deeds or
reasonably required by Purchaser in order to consummate the transactions
contemplated hereby, provided that any such additional documents, instruments
and deliveries shall not result in any Seller having any greater liabilities
than are expressly provided herein.
(xiv) With respect to any security deposits which
are other than cash or that are in the form of a letter of credit
(collectively, the "Non-Cash Security Deposits"), appropriate duly executed
instruments of transfer or assignment of such Non-Cash Security Deposits which
are required to establish Purchaser as the new beneficiary thereunder. With
respect to any Non-Cash Security Deposit in the form of a letter of credit, if
such letter of credit shall not, pursuant to its terms, be assignable, the
applicable Seller shall cooperate with Purchaser to obtain a replacement letter
of credit with respect thereto in favor of Purchaser, and, if a replacement
letter of credit is not obtained and if requested by Purchaser following the
Closing, said Seller shall draw on such letter of credit if the tenant for whom
the same was given as a security deposit shall default under its Lease and
Seller shall remit the proceeds thereof to Purchaser. Purchaser agrees to
indemnify, defend and hold said Seller harmless from and against any and all
costs, loss, damages and expenses of any kind or nature whatsoever (including
reasonable attorneys' fees and costs) but excluding consequential damages
arising out of or
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resulting from such Seller's presenting any such letter of credit for payment
in accordance with Purchaser's request. The foregoing provisions shall survive
the Closing.
(xv) Duly executed counterparts of each Assignment
and Assumption of Contracts and Permits, in the form of Exhibit D annexed
hereto and made a part hereof.
(xvi) A duly executed counterpart of a Blanket Xxxx
of Sale and Assignment in the form of Exhibit E annexed hereto and made a part
hereof pertaining to the Personalty, it being agreed that for purposes of this
Agreement, the Personalty shall be deemed to have no value.
(xvii) The Club Associates Note together with an
allonge thereto endorsing the same to the order of Purchaser. A duly executed
assignment, without recourse, warranty or representations, of the Club
Associates Mortgage together with an assignment, without recourse, warranty or
representations, of all of the Club Associates Collateral Documents in form and
substance reasonably satisfactory to Purchaser. Originals of the Club
Associates Note, the Club Associates Mortgage and the Club Associates
Collateral Documents shall be delivered to Purchaser at Closing.
(xviii) Sellers shall furnish at Closing any and all
information that may be necessary or appropriate to enable the "real estate
broker" or "real estate reporting person," within the meaning of Section
6045(e) of the Internal Revenue Code and the regulations promulgated
thereunder, to comply with the reporting requirement of Section 6045(e) of the
Internal Revenue Code.
(xix) [Intentionally deleted.]
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(xx) A duly executed counterpart of a modification
to the asset management agreement dated March __, 2000, as amended, between FUR
and Radiant Partners, LLC ("Asset Management Agreement") in the form of Exhibit
F annexed hereto and made a part hereof (the "Asset Management Agreement
Modification").
(xxi) Seller shall obtain and deliver to Purchaser
at Closing all local customary documents required in connection with a sale of
a Property, including such tax and other documents as may be necessary to
record the applicable Deed or Assignment and Assumption of Ground Lease. To
the extent any sums are required to be withheld or paid in connection with such
sale, Purchaser is authorized to withhold from the Purchase Price the amount of
tax and recording charges required to be paid, subject to Section 12(b) hereof,
which apportioned amount shall be applied as necessary to pay the appropriate
amounts and to record the subject deed. Sellers and Purchaser shall jointly
retain local counsel in the various States in which the Property shall be
located, to advise each party as to how to comply with the provisions of this
Subsection 14(a)(xxi). The cost of such local counsel shall be borne equally
between Purchaser, on the one hand, and Sellers on the other.
(b) Purchaser's Documents: Purchaser, pursuant to the
provisions of this Agreement, shall deliver or cause to be delivered to Seller
on the Closing Date the following instruments, documents and items:
(i) Duly executed counterparts of each
Assignment and Assumption of Leases.
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(ii) Duly executed counterparts of each Blanket
Xxxx of Sale and Assignment.
(iii) Duly executed counterparts of all transfer
tax and sales tax returns required to be signed by Purchaser.
(iv) A consent or resolution of the members,
partners, directors and shareholders, as applicable, of Purchaser authorizing
the purchase of the Sale Assets, in a form reasonably satisfactory to Sellers.
(v) The Mortgage Assumption Instrument (as
hereinafter defined) in recordable form.
(vi) Such other documents, instruments and
deliveries as are otherwise required by this Agreement or required to record
the Mortgage Assumption Instrument or reasonably required by Sellers in order
to consummate the transactions contemplated hereby.
(vii) Duly executed counterparts of each Assignment
and Assumption of Contracts and Permits.
(viii) A duly executed counterpart of the Asset
Management Agreement Modification.
(ix) Intentionally Deleted.
(x) A duly executed counterpart of the Assignment
and Assumption of Ground Lease for each of the Ground Leases.
(xi) In the event that Southwest Centers shall
have executed a contract of sale prior to the Closing to sell any portion of
the Pecanland Mall Adjacent Land or FUR shall have executed a contract of sale
prior to the Closing to sell the Huntington Garage ("Huntington Contract"), and
the sale contemplated thereby shall not have closed prior to the
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Closing, then Southwest Centers or FUR, as applicable, shall execute and
deliver to Purchaser at Closing an instrument, in form reasonably satisfactory
to Southwest Centers or FUR, as the case may be, pursuant to which Southwest
Centers or FUR, as applicable, shall assign such contract to Purchaser and
Purchaser shall execute and deliver to Southwest Centers or FUR, as applicable,
an instrument, in form reasonably satisfactory to Southwest Centers or FUR, as
the case may be, pursuant to which Purchaser shall assume the obligations of
Southwest Centers or FUR under such contract.
(xii) If the sale of any portion of the Pecanland
Mall Adjacent Land or the Huntington Garage shall close prior to the Closing
Date, the entity which shall own one hundred (100%) percent of the beneficial
interests in and to all of the Properties, as of the Closing Date, and has a
net worth of at least Forty Million ($40,000,000) Dollars (the "Indemnitor")
shall deliver to FUR an agreement in form and substance reasonably satisfactory
to FUR, pursuant to which such parties shall indemnify and hold FUR harmless
from and against any loss, cost, damage, claim or expense which FUR shall
suffer or incur on account of any matter under the Huntington Contract
(provided such obligations of FUR which survive the closing of the Huntington
Garage sale are otherwise customary and standard obligations in connection with
the sale of a garage property) or the contract for the sale of the Pecanland
Mall Adjacent Land which shall survive the closing of the sale of the
Huntington Garage and/or the Pecanland Mall Adjacent Land.
(xii) Evidence, reasonably satisfactory to Sellers,
that Purchaser and/or a Permitted Assignee (as such term is defined in Section
35 hereof) has a net worth of at least $40,000,000.
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15. Default by Purchaser or Sellers.
(a) If (i) Purchaser shall default in the payment of the
Purchase Price, (ii) Purchaser shall otherwise default in the performance of
any of the other terms and provisions of this Agreement on the part of
Purchaser to be performed, and the Closing does not occur as a result thereof,
and such default shall continue for five (5) business days after written notice
to Purchaser (provided, however, notwithstanding the foregoing, time shall be
of the essence with respect to Purchaser's obligation to pay the First
Additional Deposit in accordance with Subsection 2(a)(ii) hereof, the Second
Additional Deposit in accordance with Subsection 2(a)(iii) hereof and to close
hereunder on such date set for Closing as to which TIME SHALL BE OF THE ESSENCE
pursuant to Section 5 hereof), (iii) Purchaser shall default, beyond the
expiration of any applicable notice and cure period, under the terms of the
Long Street Contract, or (iv) (A) Purchaser shall commence any case, proceeding
or other action under any laws relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeks to have an order for relief
entered with respect to it, or seeks to be adjudicated a bankrupt or insolvent,
or seeks reorganization, arrangement, adjustment, liquidation, dissolution,
composition or other relief with respect to it or its debts, or seeks the
appointment of a receiver, trustee, custodian or other similar official for it
or all or any substantial part of its property, or (B) Purchaser otherwise
takes any action indicating its consent to, approval of, or acquiescence in, or
in furtherance of, any of the acts described in clause (iv)(A), above, then in
any of such cases, Purchaser shall be deemed to be in default hereunder.
Purchaser acknowledges that if Purchaser shall default under this Agreement as
aforesaid, Sellers will suffer substantial adverse financial consequences as a
result thereof. Accordingly, Sellers, as their sole and absolute remedy
against Purchaser, shall have the right to retain the Deposit and which Deposit
shall constitute full and complete liquidated
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damages, it being agreed that Sellers' damages are difficult, if not
impossible, to ascertain, and thereafter Purchaser and Sellers shall have no
further rights or obligations under this Agreement, except those expressly
provided herein to survive the termination of this Agreement. Notwithstanding
the foregoing, in the event Purchaser's default is the failure to pay the First
Additional Deposit when required by Subsection 2(a)(ii) hereof, Escrowee shall
return the Initial Deposit in accordance with the terms of Subsection
2(a)(vi)(A) or Subsection 2(a)(vi)(B) hereof, as applicable. In the event
there is more than one Purchaser (by virtue of a permitted assignment) and at
least one but less than all of the Purchasers have committed a default or other
act described in clauses (i), (ii), (iii) or (iv) of this Subsection 15(a),
Sellers shall nonetheless be entitled to terminate this Agreement with respect
to all Purchasers and retain the entire Deposit.
(b) Except as provided in Section 16 hereof, and subject to
the provisions thereof, (i) if any Seller shall default in conveying such
Seller's Property to Purchaser pursuant to the terms hereof on the Closing Date
or (ii) if any Seller shall default hereunder for any other reason and such
default shall continue for five (5) business days after written notice to such
Seller, Purchaser may, as its sole remedy, elect to either (x) terminate this
Agreement, and direct the Escrowee to return the Deposit to Purchaser and
Purchaser and Sellers shall thereafter have no further rights or obligations
under the Agreement, except those expressly provided herein to survive the
termination of this Agreement, or (y) prosecute an action for specific
performance of this Agreement by such Seller or an action for damages, but in
no event shall Purchaser seek, or be entitled to collect, damages against
Sellers exceeding Ten Million ($10,000,000) Dollars in the aggregate. Any such
action for specific performance must be commenced against Sellers within ninety
(90) days after the date that Sellers shall default hereunder, it being
understood that if Purchaser shall fail to commence an action for specific
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performance within such period of time, Purchaser shall be deemed to have
waived its right to commence an action for specific performance of this
Agreement. Notwithstanding anything hereinabove in this Section 15(b) to the
contrary, if FUR shall default, beyond the expiration of any applicable notice
and cure period, under the terms of the Long Street Contract, Purchaser may, as
its sole remedy, prosecute an action for specific performance of this Agreement
by FUR, provided all conditions to closing hereunder have been satisfied and
this Agreement has not been terminated pursuant to the terms hereof.
16. Termination and Expense Reimbursement.
(a) The obligations of Sellers to transfer the Sale Assets
pursuant to this Agreement are contingent upon FUR, at FUR's sole cost and
expense, obtaining approval for the sale contemplated hereby and any amendments
to the organizational or governing documents of FUR necessary to consummate the
sale contemplated hereby from shareholders of FUR holding the requisite number
of shares in accordance with the organizational and governing documents of FUR
(collectively, the "Shareholder Ratification") and this Agreement shall
terminate, (i) if at a meeting called for the purpose of voting on such sale
and such amendments, the shareholders of FUR do not approve the sale
contemplated hereby and all of such amendments, upon the date of such meeting,
(ii) at the option of FUR, upon the date FUR delivers notice of termination to
Purchaser, if such meeting of the shareholders of FUR has not been held on or
prior to the date (the "Shareholder Approval Deadline") which is three business
days prior to the date as to which time is of the essence with respect to
Purchaser's obligation to close pursuant to Section 5, (iii) at the option of
Purchaser, upon the date Purchaser delivers notice of termination to FUR, if
such meeting of the shareholders of FUR has not been held on or
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prior to the date which is three business days prior to the date as to which
time is of the essence with respect to Sellers' obligation to close pursuant to
Section 5, or (iv) at the option of FUR, to be exercised prior to the
Shareholder Ratification, upon the date FUR delivers notice of termination to
Purchaser, if the Board of Trustees of FUR, or a committee thereof, determines,
after consultation with outside legal counsel, that it has a fiduciary duty
under applicable law to accept, approve or recommend an Alternative Proposal
(as defined in Section 24 below); and thereupon FUR shall promptly cause the
Deposit to be returned to Purchaser and neither party shall have any further
obligation to the other party under this Agreement, other than the obligations
of FUR under this Section 16 and except for those provisions which are
expressly stated herein to survive termination of this Agreement. Sellers make
no representation or warranty herein that the Shareholder Ratification shall be
obtained. The Board of Trustees of FUR shall recommend to the shareholders of
FUR that they approve the sale contemplated hereby and any amendments to the
organizational or governing documents of FUR necessary to consummate the sale
contemplated hereby, unless the Board of Trustees of FUR, or a committee
thereof, determines, after consultation with outside legal counsel, that it has
a fiduciary duty under applicable law to accept, approve or recommend an
Alternative Proposal (as defined in Section 24 below).
(b) If this Agreement is terminated pursuant to Section
5(c), Section 16(a)(i), Section 16(a)(ii), Section 16(a)(iv), Section 18(b) or
Section 20(b)(v), then Sellers shall be deemed unable to perform; provided that
in lieu of any other remedies set forth in this Agreement (which Purchaser
shall not be entitled to) except for the additional remedies, if any, set forth
in Sections 16(c) and 16(d)(ii), FUR shall, in addition to causing the Deposit
to be returned to Purchaser, reimburse Purchaser, as Purchaser's sole and
exclusive remedy (subject to
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the additional remedy set forth in Section 16(c)), only for up to an amount
equal to the Reasonable Expense Cap (as defined below) of documented
out-of-pocket fees and expenses actually and reasonably incurred by Purchaser
in connection with this Agreement and the sale contemplated hereby
(collectively, "Reasonable Expenses"), provided that such Reasonable Expenses
shall not include, and the term Reasonable Expenses shall not include, any fees
or expenses paid or payable, directly or indirectly, to Purchaser's equity
investors or any of such equity investors' respective lenders, equity investors
or affiliates. For the avoidance of doubt, subject to the Reasonable Expense
Cap, the term Reasonable Expenses shall include, but not be limited to, the
commitment fees paid or payable to Purchaser's lenders pursuant to binding debt
commitments and all Reasonable Expenses in connection therewith. The
"Reasonable Expense Cap" shall be an amount equal to (i) the sum of (a) $3
million, (b) an additional $250,000 if the Sellers adjourn the Closing pursuant
to Section 5(a) to a date later than December 29, 2000, and (c) an additional
$250,000 if the Sellers adjourn the Closing pursuant to Section 5(a) to a date
later than February 28, 2001, less (ii) (a) the amount of any fees paid,
directly or indirectly, to Purchaser's lenders by Sellers pursuant to Section
5, (b) if Sellers shall elect to provide (or cause another party to provide)
financing to Purchaser pursuant to Section 5(b), the amount of any fees which
Sellers would otherwise have been required to pay, directly or indirectly, to
Purchaser's lenders had Sellers elected that Purchaser pay extension fees to
Purchaser's lenders, and (c) any amounts reimbursed pursuant to Section
16(d)(ii).
(c) If this Agreement shall have been terminated pursuant
to Section 16(a)(iv), then FUR, in addition to the payments that shall be
required to be made pursuant to Section 16(b) above, shall reimburse Purchaser
(or pay directly to Purchaser's equity investors at their request), up to an
additional $2 million of any previously unreimbursed documented out-of-
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pocket fees and expenses (not constituting Reasonable Expenses) actually and
reasonably incurred by Purchaser and paid or payable to Purchaser's equity
investors pursuant to the binding equity commitments, copies of which have been
provided to Sellers.
(d) (i) If this Agreement is terminated pursuant to
Section 4(c) (and not rendered null and void in accordance with terms of
Section 4(c)), Section 5(a) and Section 16(a)(iii), then Sellers shall be
deemed unable to perform; provided that in lieu of any other remedies set forth
in this Agreement (which Purchaser shall not be entitled to), FUR shall, in
addition to causing the Deposit to be returned to Purchaser, reimburse
Purchaser, as Purchaser's sole and exclusive remedy, only for one-half of all
Reasonable Expenses; provided that such reimbursement shall not exceed one-half
of the Reasonable Expense Cap.
(ii) If Purchaser shall elect not to purchase a
particular Property or Properties pursuant to Section 4(a), Section 4(c),
Section 8(d), Section 9(b) and Section 17 hereof, and the Purchase Price is
reduced by the portion of the Purchase Price that is allocated to such
Property(ies), as set forth in Section 4(a), Section 4(c), Section 8(d),
Section 9(b) and Section 17; then in lieu of any other remedies set forth in
this Agreement (which Purchaser shall not be entitled to), FUR shall reimburse
Purchaser, as Purchaser's sole and exclusive remedy, only for those Reasonable
Expenses allocated to such Property, to be set forth on Schedule N, which
Schedule N shall be reasonably agreed to by Sellers and Purchaser by a date no
later than September 29, 2000, and shall be attached hereto and made a part
hereof; provided that such reimbursements shall not exceed, in the aggregate
for all the Properties, one-half of the Reasonable Expense Cap.
(e) Purchaser hereby covenants and agrees that no amounts
reimbursed to Purchaser (or paid directly to Purchaser's equity investors)
pursuant to Section 16(b), 16(c) or
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16(d) shall be paid, directly or indirectly, to or for the benefit of Xxx
Xxxxxxxx, Xxxxx Xxxxxxxxxxx or Xxxx Xxxxxx or any entity in which any of them
has an interest (other than actual documented third party expenses which have
been paid by any of them). Any and all Reasonable Expenses or other amounts
reimbursable pursuant to Section 16(b), Section 16(c) or Section 16(d) shall be
paid promptly and in no event later than 30 days after the termination of this
Agreement.
(f) For the avoidance of doubt, in the case of a default
occurring after the date of obtaining the Shareholder Ratification, unless and
until this Agreement shall have been terminated pursuant to Section 4(a),
Section 4(c) (and not rendered null and void in accordance with the terms of
Section 4(c)), Section 5(a), Section 5(c), Section 16(a), Section 18(b) and
Section 20(b)(v), the parties shall be entitled to pursue the remedies provided
for in Section 15.
17. Estoppel Certificates.
As to (a) each Property that is not a parking lot or a parking
garage, the Seller of each applicable Property shall use commercially
reasonable efforts to deliver to Purchaser lease estoppel certificates (the
"Tenant Estoppel Certificates"), in a form reasonably required by the lender
that shall be providing mortgage financing for such Property (or in such other
form or containing such other information as such tenant's lease shall require
such tenant to provide), from (i) all tenants occupying 5,000 square feet of
space or more and (ii) from tenants under leases constituting not less than 80%
of the balance of the occupied square footage of such Property, (b) the North
Valley Tech Center Ground Lease, the Two Rivers Business Center Ground Lease
and the Huntington Garage Ground Lease, North Valley Tech and FUR shall use
commercially reasonable efforts to deliver to Purchaser an estoppel certificate
from the landlord
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under the Ground Leases, in a form reasonably required by the lender that shall
be providing mortgage financing for such Property (or in such other form or
containing such other information as the applicable Ground Lease shall require
such landlord to provide) and (c) each Property that is a parking lot or a
parking garage that is net leased to a tenant thereof, such Seller shall use
commercially reasonable efforts to deliver to Purchaser a Tenant Estoppel
Certificate from the tenant under such Lease, in a form reasonably required by
the lender that shall be providing financing for such Property (or in such
other form or containing such other information as such tenant's lease shall
require such tenant to provide). Notwithstanding the immediately preceding
sentence to the contrary, any estoppel certificate that shall be delivered to
Purchaser from a tenant which is not in the form reasonably required by the
lender that shall be providing financing for such Property (or in such other
form or containing such other information as such tenant's lease shall require
such tenant to provide), shall qualify as an acceptable estoppel certificate
provided that the Tenant's Estoppel Certificates confirms the material terms
set forth in the lender's form of Tenant Estoppel Certificate. If Seller shall
satisfy the condition described in clause (a)(i), clause (a)(ii), clause (b)
and clause (c) above but Seller, on or before the Closing, is unable to deliver
Tenant Estoppel Certificates from each of the tenants of such Property, the
applicable Seller shall deliver to Purchaser, at Closing, a certificate
("Seller's Certificate"), executed by such Seller, whereby such Seller shall
state, to the best of its knowledge, for the remaining tenants, the following:
(a) the rent and other charges payable by each tenant under its respective
lease and the amount, if any, of the security deposit(s) held by Seller; (b)
the term of the respective lease(s) and (c) that the respective tenant is not
in default under any of the terms of its lease or if in default the nature of
such default. The Seller's Certificate shall survive the Closing for a period
of six (6) months. A Seller's Certificate with respect to any tenant shall
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expire and be of no force and effect upon Purchaser's receipt of a Tenant
Estoppel Certificate consistent with the information set forth in the Seller's
Certificate. In addition, Seller shall not have any liability on account of
any statement in a Seller's Estoppel Certificate which shall be untrue in any
material respect if Purchaser or Radiant shall know or, in connection with its
management of the Properties, should have known that such statement was untrue.
If a Seller for a particular Property shall fail to deliver the minimum number
of Tenant Estoppel Certificates that shall be required to be delivered pursuant
to clause (a)(i) or clause (a)(ii) above or North Valley Tech or FUR shall fail
to deliver the ground lease estoppel certificates that shall be required to be
delivered pursuant to clause (b) above or the Sellers shall fail to deliver the
Tenant Estoppel Certificate that shall be required to be delivered pursuant to
clause (c) above and, as a result thereof the lender providing the mortgage
financing for such Property or the lender providing mezzanine financing shall
elect not to provide financing for such Property, in such case FUR shall have
the right to elect to provide (or to cause another party to provide) to
Purchaser the financing that such lender was otherwise prepared to provide to
Purchaser, it being agreed that if FUR shall make such election, such loan
shall be provided upon the same or better terms to Purchaser than those terms
that were offered by Purchaser's mezzanine lender or mortgage lender. If
Seller shall not elect to provide such financing, in such case, Purchaser, as
its sole and absolute remedy, shall have the right to elect not to purchase
such Property. If Purchaser shall make such election, the Purchase Price
pursuant to Section 2(a) shall be reduced by the portion of the Purchase Price
that is allocated to such Property pursuant to Schedule B-1 and the Cash
Balance shall be reduced by the portion of the Cash Balance that is allocated
to such Property pursuant to Schedule B-2. In addition, the Seller of the
Property that Purchaser
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shall elect not to purchase pursuant to this Section 17 shall reimburse
Purchaser for certain expenses in accordance with the provisions of Section
16(d) hereof.
18. Governmental Compliance.
(a) FIRPTA Compliance. Sellers shall comply with the
provisions of the Foreign Investment in Real Property Tax Act, Internal Revenue
Code of 1986, as amended, Section 1445, as the same may from time to time be
amended, or any successor or similar law (collectively, the "FIRPTA Code"). On
the Closing Date, Sellers shall deliver to Purchaser certifications as to each
Seller's non-foreign status which complies with the provisions of Section
1445(b)(2) of the FIRPTA Code, and shall comply with any temporary or final
regulations promulgated with respect thereto and any relevant revenue
procedures or other officially published announcements of the Internal Revenue
Service of the U.S. Department of the Treasury in connection therewith. If any
Seller shall fail to deliver the foregoing certification to Purchaser at the
Closing, Purchaser shall have the right to withhold ten percent (10%) of the
portion of the Purchase Price allocated to said Seller's property and apply the
same in accordance with the requirements of the FIRPTA Code.
(b) HSR Compliance. Sellers and Purchaser will make as
promptly as practicable all filings necessary, if any, under the HSR Act (as
hereinafter defined) and other applicable federal, state and local antitrust,
competition and other similar laws (collectively, the "Antitrust Laws") in
order to obtain any required regulatory approvals, clearance or expirations of
waiting periods (collectively, "Antitrust Clearance") in connection with the
transactions contemplated by this Agreement. The term "HSR Act" shall mean the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended. Subject to
the limitations contained in the last sentence of this Subsection 18(b),
Sellers and Purchaser shall each use their reasonable best
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efforts to resolve such objections, if any, as any governmental or regulatory
authorities with jurisdiction over the enforcement of any Antitrust Laws may
assert under any such Antitrust Laws with respect to the transactions
contemplated by this Agreement. The parties shall consult with each other when
dealing with such authorities and before submitting any application or other
written communication to any such authority.
19. Merger. Except as otherwise expressly provided to the contrary
in this Agreement, no representations, warranties, covenants or other
obligations of Sellers set forth in this Agreement shall survive the Closing,
and no action based thereon shall be commenced after the Closing. The delivery
and acceptance of the Deeds at the Closing, without the simultaneous execution
and delivery of a specific agreement which by its terms shall survive the
Closing, shall be deemed to constitute full compliance by the parties with all
of the terms, conditions and covenants of this Agreement on their part to be
performed except for those terms, conditions and covenants which this Agreement
expressly provides will be performed after the Closing.
20. Conditions to Closing.
(a) Conditions to Purchaser's Obligation to Close.
Purchaser's obligation to close hereunder shall be subject to the following
conditions:
(i) Sellers shall have performed, satisfied and
complied with, or tendered performance of, in all material respects, all of the
terms, conditions and covenants required by this Agreement to be performed or
complied with by Sellers on or before the Closing Date and FUR, the seller
under the Long Street Contract, shall have performed, satisfied and complied
with, or tendered performance of, in all material respects, all of the
covenants, agreements and conditions required by the Long Street Contract. For
purposes of this Agreement, the Long Street Contract shall mean that certain
Contract of Sale between FUR, as
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seller, and Purchaser, as purchaser, dated as of the date hereof, respecting
the purchase of that certain property known as Long Street Garage, located in
Columbus, Ohio. Except if the Long Street Contract is terminated pursuant to
the terms thereof, Purchaser shall have no obligation to close hereunder unless
FUR, as seller under the Long Street Contract, shall simultaneously close
herewith. Notwithstanding anything to the contrary in the foregoing sentence
or any other provision of this Agreement, if for any reason FUR is unable to
convey to Purchaser its right, title and interest in and to the Club Associates
Loan Documents in accordance with the terms of this Agreement, then the Club
Associates Loan Documents shall no longer be deemed to be a Sale Asset; however
Purchaser shall nevertheless be obligated to close hereunder on the acquisition
of the other Sale Assets, in which case the Purchase Price and the Cash Balance
due at the Closing shall be reduced by the outstanding principal balance of the
Club Associates Note as of the Closing Date.
(ii) All representations and warranties of Sellers
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing Date.
(iii) Any and all Antitrust Clearance required in
connection with the transactions contemplated by this Agreement shall have been
obtained.
(iv) Seller shall have obtained the Shareholder
Ratification pursuant to Section 16(a) hereof and the Board Consent.
(v) The management of the Properties by Radiant
shall be undisturbed through the Closing Date, except as may be permitted under
the Asset Management Agreement by reason of Radiant's default thereunder.
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(vi) No party other than Purchaser shall have any
conditional or unconditional right and/or option to purchase any Property or
have any rights of first refusal for any Property.
The foregoing conditions under this Subsection 20(a), except for the
condition in clauses (iii) and (iv), are for the benefit of Purchaser only, and
Purchaser may, in its sole discretion, waive any or all of such conditions and
close title under this Agreement without any abatement of, or credit against,
the Purchase Price.
(b) Conditions to Sellers' Obligation to Close. Sellers'
obligation to close hereunder shall be subject to the following conditions:
(i) Purchaser shall have performed, satisfied and
complied with, or tendered performance of, in all material respects, all of the
terms, conditions and covenants required by this Agreement and the Long Street
Contract to be performed or complied with by Purchaser on or before the Closing
Date. Seller shall have no obligations to close hereunder unless Purchaser
closes simultaneously herewith on the Long Street Contract, unless by its term
the Long Street Contract has been terminated.
(ii) All representations and warranties of
Purchaser in this Agreement shall be true and correct in all material respects
as of the date of this Agreement, and as of the Closing Date.
(iii) If a holder of a Mortgage shall permit
Purchaser to purchase a Property subject to the lien of such Mortgage,
Purchaser and the holder of such Mortgage shall have executed and delivered at
the Closing, in recordable form and otherwise in a form satisfactory to
Sellers, an instrument pursuant to which such Purchaser shall assume the
applicable Seller's liabilities and obligations, as mortgagor, under such
Mortgage (each a
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"Mortgage Assumption Instrument") and an instrument ("Release") pursuant to
which the applicable Seller, as mortgagor, all principals and affiliates of
such Seller (including, without limitation, FUR), all guarantors and
indemnitors under guaranties and indemnities of said Seller's liabilities or
obligations under such Mortgage (collectively, the "Seller Parties") shall be
fully and completely unconditionally released from all liability and
obligations under said Mortgage, guaranties and indemnities. In the event that
Purchaser is unable to obtain a Release with respect to a Property, Purchaser
shall cause Indemnitor to provide to the Seller of such Property and the other
Seller Parties (a) a complete and unconditional indemnification, in a form
reasonably acceptable to such Seller and the other Seller Parties, against all
liability and obligations under said mortgage, guaranties and indemnities which
may be asserted against any of the Seller Parties, other than with respect to
those obligations of such Seller Parties which shall have accrued prior to the
Proration Date and which pursuant to the terms of such Mortgage shall expressly
survive the repayment of such Mortgage and (b) if applicable, that certain
indemnification referred to in Section 2(c) above.
(iv) Any and all Antitrust Clearance required in
connection with the transactions contemplated by this Agreement shall have been
obtained.
(v) No judgment, injunction, order, decree or
action by an federal, state or local government, court, or administrative or
regulatory agency of competent authority preventing the sale contemplated
hereby shall have become final and unappealable or shall be in effect as of the
date as to which time is of the essence with respect to Purchaser's obligation
to close pursuant to Section 5(a), it being understood that if this condition
shall not be satisfied at Closing, this Agreement shall terminate and be null,
void and of no further force and
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effect and FUR shall reimburse Purchaser for certain of its expenses in
accordance with the provisions of Section 16(b) hereof.
The foregoing conditions under this Subsection 20(b), except for the
condition in clause (iv), are for the benefit of Sellers only, and Sellers may,
in their sole discretion, waive any or all of such conditions and close title
under this Agreement without any increase in the Purchase Price.
21. Prior to Closing.
(a) Insurance. Until Closing, Sellers shall maintain all of
the insurance policies described on Schedule L-1 in full force and effect or
shall obtain replacement policies that shall provide substantially equivalent
coverage.
(b) Operation. Until Closing, each Seller shall operate and
maintain its Property substantially in accordance with its current practices
with respect to the operation and maintenance of such Property and shall not
terminate the Asset Management Agreement expect as a result of Radiant's
default, beyond the expiration of all applicable notice and cure periods
thereunder. The parties acknowledge that to the extent not inconsistent with
(i) the Asset Management Agreement, including, without limitation, the
oversight powers of the Board of Trustees of FUR, or (ii) the fiduciary duties
and other obligations of the principals of Radiant Partners, LLC to FUR as
officers and/or directors of FUR, Radiant Partners, LLC shall exercise its
rights and obligations under the Asset Management Agreement (x) consistent with
the provisions of any asset management agreement to be entered into by Radiant
Partners, LLC or its affiliates with the Purchaser (the "Purchaser Management
Agreement"); (y) subject to Purchaser's supervision (in particular such
supervision as provided for under the Purchaser Management Agreement); and (z)
without limiting the generality of the foregoing, by routinely
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consulting with Purchaser as to its activities under the Asset Management
Agreement and reasonably taking the views of Purchaser into account.
(c) New Contracts. Between the date hereof and the Closing,
each Seller will enter into only those Contracts which said Seller reasonably
determines are necessary to carry out its obligations under Subsection 21(b)
and which shall be cancellable on not more than thirty (30) days' written
notice (without penalty, unless said Seller agrees to pay any such termination
penalty at Closing).
(d) New Leases; Lease Extensions. Between the date hereof
and the Closing Date, Sellers will not execute any new Leases or amend,
terminate (except upon a monetary default by the tenant thereunder excluding
any anchor tenant of a shopping center Property for which Purchasers consent
shall be required) or accept the surrender of any existing tenancies or approve
any subleases without the prior written consent of Purchaser, which consent
shall not be unreasonably withheld, conditioned or delayed, provided, however,
Purchaser's consent shall be deemed to have been given if Purchaser does not
respond to a Seller within five (5) business days after Purchaser's receipt of
written notice from such Seller requesting Purchaser's consent to a matter that
is the subject of the provisions of this Section 21(d). Between the date
hereof and the Closing Date, Sellers will not modify, amend or terminate any of
the Ground Leases without the prior written consent of Purchaser, which consent
shall not be unreasonably withheld, conditioned or delayed.
(e) Employees. From and after the date hereof through and
including the Closing or earlier termination of this Agreement, Sellers shall
not hire any Employees without the prior written consent of Purchaser. Each
Seller shall notify Purchaser reasonably promptly if Seller hires any
Employees.
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(f) Contracts. At the Closing, Purchaser shall assume the
Contracts. As used herein, the term "Contracts" shall include any new
contracts entered into from and after the date hereof. Sellers shall notify in
writing the vendors under those Contract(s) which Purchaser has not agreed to
assume as of Closing that, provided that Closing occurs hereunder, the
applicable Seller shall terminate such Contracts, effective as of the Closing
Date; provided however, if any such non-assumed Contract does not permit
Sellers to terminate same prior to Closing, Purchaser shall be required at
Closing to assume all obligations thereunder until the effective date of the
termination.
(g) Sellers shall not, between the date hereof and the
Closing Date, amend, modify, extend, renew, replace, supplement or consolidate
any of the Mortgages without the consent of Purchaser.
(h) FUR shall not, between the date hereof and the Closing
Date, amend, modify or extend the Club Associates Note, the Club Associates
Mortgage or the Club Associates Collateral Documents in any manner or accept
any prepayment of funds due thereunder.
(i) Sellers shall not initiate, consent to or approve any
action with respect to zoning, or, unless required by law, any other
governmental rules or regulations applicable to any part of the Properties.
(j) Seller(s) maintains real estate environmental liability
insurance, as more fully described on Schedule L-2. Notwithstanding the
foregoing, Purchaser shall assume responsibility for the amount of any
deductible applicable to the environmental liability insurance policies.
Purchaser and each Seller agree to cooperate with the other and to perform,
execute and deliver, such documents and instruments as may be reasonably
necessary in connection with any
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claim or other matter arising under or relating to any of the environmental
insurance policies. The provisions of this Subsection 21(j) shall survive the
closing.
Notwithstanding anything in this Agreement to the contrary,
including this Section 21, if Radiant shall take any action with respect to a
Property, whether or not such action shall be permitted pursuant to the terms
of the Asset Management Agreement or Radiant shall fail to take an action which
Radiant shall be required to take pursuant to the terms of the Asset Management
Agreement, in such case, Purchaser shall be deemed to have consented to all
actions that Radiant shall have taken or shall have failed to take and in no
event shall Sellers be deemed to be in default under this Agreement on account
thereof.
22. Shareholder Lawsuits. To the extent of claims by shareholders
of FUR against the Purchaser, to the fullest extent allowed by law FUR hereby
indemnifies Purchaser from and against any and all damages, liability, loss,
cost and expense (including, without limitation, reasonable attorney's fees and
disbursements) incurred in connection with such claims; provided, that the
foregoing indemnification shall not extend, directly or indirectly, to Radiant
Partners LLC or its principals, except that nothing in this Agreement shall
modify any pre-existing obligation of FUR to indemnify Radiant Partners LLC or
its principals. To effect the indemnification provided herein, FUR covenants
and agrees that it has and shall maintain a net worth of at least $30,000,000
through the later of (A) 30 days after the Closing Date or (B) the resolution,
after all appeals, of claims by shareholders of FUR against Purchaser. The
provisions of this Section 22 shall survive the Closing of title.
23. Deposit.
(a) The Deposit shall be deposited with the Escrowee and
shall be held in escrow pursuant to the terms of this Agreement. Escrowee
shall cause the Deposit to be
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deposited into an interest bearing account. Escrowee shall pay the Deposit to
Sellers at the Closing upon the consummation thereof or otherwise to Sellers or
Purchaser in accordance with this Agreement, subject, however, to the
provisions of Subsection 2(b) hereof. If either party makes a demand upon
Escrowee for delivery of the Deposit, Escrowee shall give notice to the other
party of such demand. If a notice of such demand shall have been sent to the
other party and a notice of objection to the proposed payment is not received
from said other party within seven (7) business days after the giving of notice
by Escrowee, Escrowee is hereby authorized to deliver the Deposit to the party
who made the demand. If Escrowee receives a notice of objection within said
period, then Escrowee shall continue to hold the Deposit and thereafter pay it
to the party entitled when Escrowee receives (i) a notice from the objecting
party withdrawing the objection, or (ii) a notice signed by both parties
directing disposition of the Deposit, or (iii) a judgment or order of a court
of competent jurisdiction directing the payment of the Deposit.
(b) The parties further agree that:
(i) Except for its gross negligence or willful
misconduct, Escrowee shall be protected in relying upon the accuracy, acting in
reliance upon the contents, and assuming the genuineness of any notice, demand,
certificate, signature, instrument or other document which is given to Escrowee
verifying the truth or accuracy of any such notice, demand, certificate,
signature, instrument or other document;
(ii) Escrowee shall not be bound in any way by any
other contract or understanding between the parties hereto, whether or not
Escrowee has knowledge thereof or consents thereto unless such consent is given
in writing;
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(iii) Escrowee's sole duties and responsibilities
shall be to hold and disburse the Deposit in accordance with this Agreement;
provided, however, that Escrowee shall have no responsibility for the clearing
or collection of the check representing the Deposit;
(iv) Escrowee shall not be liable for any action
taken or omitted by Escrowee in good faith and believed by Escrowee to be
authorized or within its rights or powers conferred upon it by this Agreement,
except for damage caused by the gross negligence or willful misconduct of
Escrowee.
(v) Upon the disbursement of the Deposit in
accordance with this Agreement, Escrowee shall be relieved and released from
any liability under this Agreement;
(vi) Escrowee may resign at any time upon at least
ten (10) days prior written notice to the parties hereto. If, prior to the
effective date of such resignation, the parties hereto shall all have approved,
in writing, a successor escrow agent, then upon the resignation of Escrowee,
Escrowee shall deliver the Deposit to such successor escrow agent. From and
after such resignation and the delivery of the Deposit to such successor escrow
agent, Escrowee shall be fully relieved of all of its duties, responsibilities
and obligations under this Agreement, all of which duties, responsibilities and
obligations shall be performed by the appointed successor escrow agent. If for
any reason the parties hereto shall not approve a successor escrow agent within
such period, Escrowee may bring any appropriate action or proceeding for leave
to deposit the Deposit with a court of competent jurisdiction, pending the
approval of a successor escrow agent, and upon such deposit Escrowee shall be
fully relieved of all of its duties, responsibilities and obligations under
this Agreement;
(vii) Seller and Purchaser hereby agree to, jointly
and severally, indemnify, defend and hold Escrowee harmless from and against
any liabilities, damages, losses,
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costs or expenses incurred by, or claims or charges made against, Escrowee
(including reasonable counsel fees and court costs) by reason of Escrowee's
acting or failing to act in connection with any of the matters contemplated by
this Agreement or in carrying out the terms of this Agreement, except as a
result of Escrowee's gross negligence or willful misconduct;
(viii) In the event that a dispute shall arise in
connection with this Agreement, or as to the rights of any of the parties in
and to, or the disposition of, the Deposit, Escrowee shall have the right to
(w) hold and retain all or any part of the Deposit until such dispute is
settled or finally determined by litigation, arbitration or otherwise, or (x)
deposit the Deposit in an appropriate court of law, following which Escrowee
shall thereby and thereafter be relieved and released from any liability or
obligation under this Agreement, or (y) institute an action in interpleader or
other similar action permitted by stakeholders in the State of New York, or (z)
interplead any of the parties in any action or proceeding which may be brought
to determine the rights of the parties to all or any part of the Deposit; and
(ix) Escrowee shall not have any liability or
obligation for loss of all or any portion of the Deposit by reason of the
insolvency or failure of the institution or depository with whom the escrow
account is maintained.
24. Exclusivity; Shareholder Approval and Press Releases
(a) From and after the date hereof, no authorized officer,
trustee, manager or director of FUR shall, directly or indirectly, solicit or
initiate any discussions with any person or entity other than Purchaser or
Purchaser's agents with a view toward the sale of all or any portion (other
than the Pecanland Mall Adjacent Land (and the Property pertaining thereto) and
the Huntington Garage) of the Sale Assets by Sellers. Notwithstanding the
foregoing, FUR may respond to, pursue (including by providing information
relating to Sellers and the Sale Assets
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which is non-public, confidential and/or proprietary in nature ("Evaluation
Material") subject to a customary confidentiality agreement) and negotiate a
bona fide proposal (an "Alternative Proposal") by any person or entity other
than Purchaser, which is neither solicited nor initiated by an authorized
officer, trustee, manager or director of FUR, to purchase, directly or
indirectly (including, without limitation, by way of a merger, combination,
consolidation, share exchange, tender offer or similar business combination
transaction), any or all of the Sale Assets if the=Board of Trustees of FUR or
a committee thereof has determined that (i) such Alternative Proposal may be
more favorable to the shareholders of FUR than the sale contemplated hereby,
taking into account price, timing, closing conditions, the likelihood of
completion and any other factors deemed relevant by the Board of Trustees of
FUR or such committee, and (ii) the person or entity making the Alternative
Proposal is reasonably likely to have the financial resources to consummate the
transactions contemplated by such Alternative Proposal. FUR shall notify
Purchaser if it responds to, pursues or negotiates an Alternative Proposal,
shall provide Purchaser with a copy of any such written Alternative Proposal
and shall keep Purchaser reasonably informed of the status of any such
negotiations.
(b) FUR shall use its reasonable best efforts to (i) prepare
and file and clear with the Securities and Exchange Commission the proxy
statement and any amendments or supplements thereto required to obtain the
approval of the shareholders of FUR to the sale contemplated hereby and any
amendments to the organizational or governing documents of FUR necessary to
consummate the sale contemplated hereby as promptly as practicable and, in any
event, before the date that would allow sufficient time to declare a record
date, mail proxy statements, solicit proxies and conduct a meeting of FUR's
shareholders in accordance with all applicable laws, rules and regulations and
FUR's organizational and governing documents by no
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later than the Shareholder Approval Deadline, and (ii) duly call, give notice
of, convene and hold such meeting on or before the Shareholder Approval
Deadline.
(c) FUR and Purchaser shall consult with each other before
issuing any press release or otherwise making any public statements with
respect to the sale contemplated hereby and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required or advisable under applicable law, rules or regulations
(including, without limitation, the rules and regulations of the New York Stock
Exchange).
25. PMM Financing. (a) Notwithstanding anything in this
Agreement to the contrary (but subject to Section 25(b) hereof), in the event
that the consent to the assumption by, and assignment to, Purchaser of a
Mortgage is not obtained from the holder of such Mortgage (each such Mortgage
being an "Unassumable Mortgage"), Purchaser and Seller shall remain obligated
to close hereunder subject to the terms of this Agreement, provided however:
(i) Sellers and/or its affiliates shall provide mortgage financing
to Purchaser ("PMM Financing") in an aggregate amount equal to the lesser of
(1) the aggregate outstanding principal balance of the Unassumable Mortgages as
of the Proration Date and (2) the amount of Thirty Million Dollars
($30,000,000) less any PMM Financing that Sellers shall provide in accordance
with the provisions of Section 9 hereof;
(ii) as to any Property that is encumbered by an Unassumable
Mortgage, the amount of the PMM Financing to be provided shall be in an amount
requested by Purchaser, provided, however, as to any Property, the amount of
the PMM Financing to be provided may not, without Sellers consent, be greater
than the amount set forth on Schedule M with respect to the applicable
Property.
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(iii) the PMM Financing shall have a term of 120 days, which term
may be extended by Purchaser for an additional 60 days;
(iv) the PMM Financing shall be payable as interest only on the
principal balance of such PMM Financing, calculated at the interest rate of 11%
per annum for the first 120 days of the term and 15% per annum for the
additional 60 days of the term;
(v) in the event of a default under the PMM Financing, the interest
rate under such PMM Financing shall be payable at the lesser of: (a) 500 basis
points in excess of the then prevailing interest rate or (b) the maximum
interest rate permitted by law; and
(vi) the PMM Financing shall be secured by, among other things, a
first mortgage lien on the Property, which was subject to the Unassumable
Mortgage(s), including, but not limited to, all buildings and furniture,
fixtures and equipment located thereon. The PMM Financing shall be upon terms
and conditions reasonably acceptable to Sellers.
(b) Notwithstanding the foregoing, if the holder of the Mortgage
encumbering the Pecanland Mall shall not consent to Purchaser's assumption of
the Mortgage encumbering the Pecanland Mall, in no event shall Sellers have any
obligation to provide any PMM Financing to Purchaser with respect to the
Pecanland Mall and in such case, Purchaser and Seller shall remain obligated to
close hereunder subject to the terms of this Agreement.
26. Notices. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
deemed to have been given (a) when hand delivered, or (b) if sent same day or
overnight recognized commercial courier service, when received, or (c) three
(3) business days after being mailed in any general or branch office of the
United States Postal Service, enclosed in a registered or certified postpaid
envelope,
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addressed to the address of the parties stated below or to such changed address
as such party may have fixed by notice:
To each Seller:
x/x Xxxxx, Xxxxx, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
To Purchaser:
c/o Radiant Partners LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxxx Weprin & Ustin LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
To Escrowee:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
provided, that any notice of change of address shall be effective
only upon receipt.
27. Amendments. This Agreement may not be modified or terminated
orally or in any manner other than by an agreement in writing signed by all the
parties hereto or their respective successors in interest.
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28. Governing Law; Construction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York (except
to such matters of real estate law that must be governed by the law of the
State in which a particular Property is located), without giving effect to
principles of conflicts of law.
29. No Offer. This document is not an offer by Sellers, and under
no circumstances shall this Agreement have any binding effect upon Purchaser or
Sellers unless and until Purchaser and Sellers shall each have executed this
Agreement and delivered to each other executed counterparts of this Agreement.
30. Partial Invalidity. If any provision of this Agreement is held
to be invalid or unenforceable as against any person or under certain
circumstances, the remainder of this Agreement and the applicability of such
provision to other persons or circumstances shall not be affected thereby.
Each provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
31. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument.
32. No Third Party Beneficiaries. The warranties, representations,
agreements and undertakings contained herein shall not be deemed to have been
made for the benefit of any person or entity other than the parties hereto.
33. Memorandum of Contract. Purchaser covenants and agrees that in
no event will Purchaser record or cause to be recorded this Agreement or any
memorandum hereof and that Purchaser's breach of this provision shall represent
a default of the nature governed by Subsection 15(a) hereof and Sellers shall
have all of the rights and remedies provided under
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Subsection 15(a) including, without limitation, the option of terminating this
Agreement and retaining the Deposit as liquidated damages.
34. Waiver. No failure or delay of either party in the exercise of
any right given to such party hereunder or the waiver by any party of any
condition hereunder for its benefit (unless the time specified herein for
exercise of such right, or satisfaction of such condition, has expired) shall
constitute a waiver of any other or further right nor shall any single or
partial exercise of any right preclude other or further exercise thereof or any
other right. The waiver of any breach hereunder shall not be deemed to be a
waiver of any other or any subsequent breach hereof.
35. Assignment. Purchaser shall not have the right to assign its
rights or obligations under this Agreement without the prior written consent of
Sellers, except that Purchaser may assign such rights and obligations to one or
more entities with a net worth of at least $40,000,000 and with respect to
which Radiant and/or its principals shall have an economic interest and
maintains and/or participates in managerial control and direction of the
business activities and operations of said entity (each such entity shall
hereinafter be called a "Permitted Assignee"). Sellers hereby approve an
assignment of Purchaser's rights and obligations under this Agreement to an
entity wholly owned by Radiant, Landmark Realty Advisors LLC and a minority
equity investor, provided that such assignee shall have a net worth of at least
$40,000,000. In the event of any proposed transfer or assignment to a
Permitted Assignee, the transfer or assignment shall not be deemed effective
unless and until the proposed transferee or assignee executes, acknowledges and
delivers to Sellers an instrument of assumption in form and consent reasonably
satisfactory to Sellers pursuant to which it assumes and agrees to perform all
obligations of Purchaser under this Agreement with respect to the applicable
Property, including,
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but not limited to, all obligations of Purchaser which survive the Closing
hereunder, agrees to be bound by all other terms and provisions of this
Agreement, confirms that all representations and warranties made by Purchaser in
this Agreement are true, accurate and complete as they pertain to such
transferee or assignee (subject to any exceptions thereto that are reasonably
acceptable to Seller), and provides the addresses and telecopier numbers to
which Notices to such transferee or assignee should be sent. Notwithstanding the
above to the contrary, at Closing, Purchaser can direct that Seller deliver a
deed to an entity, with respect to the Property, as Purchaser shall designate,
so long as such entity is owned one hundred (100%), directly or indirectly, by
Purchaser or a Permitted Assignee.
36. Interpretation. Words of any gender used in this Agreement shall
include any other gender and words in the singular shall include the plural, and
vice versa, unless the context requires otherwise. The words "herein," "hereof,"
"hereunder" and other similar compounds of the words "here" when used in this
Agreement shall refer to the entire Agreement and not to any particular
provision or section. As used in this Agreement, the term "business day" means
every day other than (i) Saturdays and Sundays, (ii) all days observed by the
Federal or New York State governments as legal holidays, and (iii) all days on
which commercial banks in New York State are required by law to be closed.
37. Construction. This Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the parties hereto. Each party
hereto acknowledges that it has participated in the drafting of this Agreement,
and any applicable rule of
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construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in connection with the construction or
interpretation hereof. Each party has been represented by independent counsel in
connection with this Agreement. For purposes of construction of this Agreement,
provisions which are deleted or crossed out shall be treated as if never
included herein.
38. Access to Books and Records. For a period of one (1) year after
the Closing, Purchaser shall give Seller and its representatives access, during
normal business hours and upon reasonable prior notice to Purchaser, to such
books, accounts, records and Leases relating to the Property (including the
right, at Seller's expense, to make photostatic copies of same) as are
reasonably necessary to enable Seller to verify any rights or obligations of
Seller or Purchaser under this Agreement which survive the Closing and to enable
Seller to respond to any tax inquiries or audits, or to comply with any other
obligations to Governmental Authorities.
39. Binding Effect. This Agreement is binding upon, and shall inure to
the benefit of, the parties and each of their respective successors and
permitted assigns, if any.
40. Waiver of Jury Trial. Each of Purchaser and Seller hereby
irrevocably waive all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
41. Collectibility of Checks. If the Deposit is paid by check and said
check fails collection in due course, Seller, at its option, may declare this
Agreement null, void and of no force and effect, and may pursue its remedies
against Purchaser upon said check, or in any other manner permitted by law, such
remedies being cumulative.
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42. Section Headings. The headings of the various sections of this
Agreement have been inserted only for the purpose of convenience and are not
part of this Agreement and shall not be deemed in any manner to modify, expand,
explain or restrict any of the provisions of this Agreement.
43. Federal I.D. Number/Social Security Number. 55 Public's Federal
I.D. Numbers is 00-0000000; North Valley Tech's Federal I.D. Number is
00-0000000: Southwest Center's Federal I.D. Number is 00-0000000; First Union
Madison's Federal I.D. Number is 00-0000000: FUR's Federal I.D. Number is
00-0000000; and FUCP's Federal I.D. Number is_____________. Purchaser's Federal
I.D. Number is being applied for.
44. Incorporation by Reference; Inconsistency. The Schedules and
Exhibits to this Agreement are incorporated herein by reference and made a part
hereof.
45. Acquisition of Ownership Interest. Seller and Purchaser agree that
it may be more advantageous with respect to the Property for Purchaser to
acquire a one hundred (100%) percent ownership interest in the Seller entity
and/or a constituent member or principal of such entity (or, at Purchaser's
election, structure such a purchase whereby Seller shall retain a record
ownership interest but not a beneficial interest or economic interest in such
entity) in lieu of acquiring fee simple title to the Property. In the event
Purchaser shall so elect to acquire such ownership interest in lieu of acquiring
fee title with respect to the Property and provided that there is no material
adverse effect to Seller, then the parties agree to cooperate with each other
and perform, execute and deliver, such documents and instruments as may be
reasonable and customary to effect such acquisition.
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46. (a) Notwithstanding anything contained in this Agreement to the
contrary, this Agreement is made and executed on behalf of FUR, by its
officer(s) on behalf of the trustees thereof, and none of the trustees or any
additional or successor trustee hereafter appointed, or any beneficiary,
officer, employee or agent of FUR shall have any liability in his personal or
individual capacity, but instead, all parties shall look solely to the property
and assets of FUR for satisfaction of claims of any nature arising or in
connection with this Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, Seller acknowledges and agrees that it has not relied upon any
representations, warranties or statements made or information provided by
Purchaser, and that Seller has relied on, inter alia, information provided by
Radiant Partners LLC and its principals. In the event of any dispute regarding
information received by Seller from Radiant Partners LLC or its principals,
Seller will not seek to enforce any remedy to which they are entitled against
Purchaser, but will look solely to the assets of Radiant Partners LLC and its
principals, including, but not limited to their respective direct and indirect
interests in the Purchaser. Except for Radiant Partners LLC and its principals,
neither the Purchaser nor any holder of a legal or beneficial interest in the
Purchaser shall have any obligation to Seller arising out of this Agreement
except for the contractual obligations of Purchaser set forth in this Agreement.
47. Entire Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supercedes (i)
any and all prior agreements between the parties hereto, except with respect to
that certain letter agreement, dated April 28, 2000, between FUR and Radiant
Partners LLC ("April 28 Letter"), which April 28 Letter shall survive the
Closing hereunder, and (ii) that certain letter of intent, dated June 20, 2000,
by and among Radiant Partners LLC, as purchaser, and FUR, as seller, respecting
such matters. This Agreement may not be modified or amended except by written
agreement signed by all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the day and year first above written.
SELLERS:
55 PUBLIC LLC, a Delaware limited liability company
By: 55 PUBLIC REALTY CORP., a Delaware
corporation, Managing Member
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
NORTH VALLEY TECH LLC, a Delaware limited liability
company
By: NVT Corp., a Delaware corporation, its Managing
Member
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SOUTHWEST SHOPPING CENTERS CO. I. L.L.C., a
Delaware limited liability company
By: First Union Southwest L.L.C., a Delaware limited
liability company, its manager
By: First southwest I, Inc., a Delaware
corporation, its manager
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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FIRST UNION MADISON L.L.C., an Illinois limited
liability company
By: First Union Real Estate Equity and Mortgage
Investments, and Ohio business trust, its member
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
PRINTER'S ALLEY GARAGE, L.L.C. a Delaware limited
liability company
By: First Union Real Estate Equity and Mortgage
Investments, an Ohio business trust, its managing
member
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVETSMENTS, an Ohio business trust
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION COMMERCIAL PROPERTIES
EXPANSION COMPANY
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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PURCHASER:
RADIANT INVESTORS LLC, a Delaware limited liability
company
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
Receipt of Deposit is hereby acknowledged,
subject to collection
STROOCK & STROOCK & XXXXX LLP
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx, Partner
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AGREED TO AND ACCEPTED for the limited purpose of acknowledging and agreeing to
Section 21(b) herein above, dated this 15th day of September, 2000.
RADIANT PARTNERS, LL C
By: /s/ XXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
