EXHIBIT 10.112
MEMBERSHIP INTEREST PURCHASE
AND SALE AGREEMENT
by and between
THOR URBAN OPERATING FUND, L.P.,
a Delaware limited partnership, as Seller
and
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, as Purchaser
Dated as of July 19, 2007
for
Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxxx, Xxxxxxx
TABLE OF CONTENTS
Page
1. AGREEMENT FOR PURCHASE AND SALE............................................1
2. PURCHASE PRICE.............................................................2
3. LENDER'S CONSENT TO TRANSFER OF INTEREST ..................................3
4. CLOSING....................................................................6
5. ESCROW.....................................................................6
6. TITLE COMMITMENT AND DUE DILIGENCE PERIOD..................................7
7. CONDITIONS PRECEDENT TO CLOSING............................................8
8. REPRESENTATIONS AND WARRANTIES............................................10
9. SELLER'S COVENANTS........................................................14
10. SELLER'S DELIVERIES AND DUE DILIGENCE.....................................16
11. DELIVERY OF DOCUMENTS.....................................................18
12. FIRE OR CASUALTY..........................................................19
13. CONDEMNATION..............................................................20
14. ADJUSTMENTS AND PRORATIONS................................................20
15. CLOSING COSTS.............................................................23
16. POSSESSION................................................................23
17. DEFAULT; ESCROW...........................................................23
18. NOTICES...................................................................24
19. BROKERS...................................................................25
20. LEASING COSTS AND LEASE APPROVAL; EMPLOYEES...............................25
21. "AS IS" SALE..............................................................26
22. ASSIGNMENT................................................................28
23. MISCELLANEOUS.............................................................29
24. TAXES.....................................................................32
SCHEDULES AND EXHIBITS
----------------------
Schedule 3 - Loan Documents
Schedule 6 - Permitted Exceptions
Schedule 6.1 - Additional Title Exceptions
Schedule 8(a)(v) - Retained Employees
Schedule 8(a)(viii) - Organizational Documents
Schedule 8(a)(xi) - Financial Statements
Schedule 8(a)(xii) - Suits, Actions, Claims or Proceedings
Schedule 8(a)(xiii) - Terminated Employees
Schedule 8(a)(xiv) - Notice of Violations
Schedule 8(a)(xv) - Tenant Defaults
Schedule 11(a)(v) - Title Affidavit
A - Legal Description of Land
B - List of Equipment, Fixtures and Personal Property
C - Lease List
D - List of Contracts
E - Escrow Agreement
F - Form of Tenant Estoppel Certificate
G - Assignment and Assumption of Membership Interests
H - Form of Tenant Notification Letter
I - Recertification of Representations and Warranties
J - Disclosure of Lease Matters/Pending Commissions
MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
Summary Statement
-----------------
This Summary Statement is attached to and made a part of that certain Membership
Interest Purchase and Sale Agreement by and between the Seller and Purchaser
referenced below.
1. DATE OF AGREEMENT: July 19, 2007
2. SELLER: Thor Urban Operating Fund, L.P., a Delaware
limited partnership
3. PURCHASER: Glimcher Properties Limited Partnership, a
Delaware limited partnership, as Purchaser
4. LAND AND IMPROVEMENTS: Xxxxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, and
the adjacent retail strip center commonly known as
the "Pavilion", and all adjacent out-lots to
either, as more particularly described on Exhibit
A annexed hereto made a part hereof.
5. PURCHASE PRICE: Eighty-Six Million Dollars ($86,000,000.00)
6. XXXXXXX MONEY: Three Million Dollars ($3,000,000.00)
7. CLOSING DATE: Five (5) days after the date of Consent (as
hereinafter defined), with time being of the
essence against Purchaser
8. TITLE COMPANY: Royal Abstract, LLC
000 Xxxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx
9. SELLER'S ADDRESS: c/o Thor Equities, LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxx and Xxxxxx X. Xxxx
with a copy to:
Xxxxxxx & Masyr, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Esq. and
Xxxxx X. Xxxxxx, Esq.
10. PURCHASER'S ADDRESS: Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxx, General Counsel
Telephone: (000) 000-0000
email: xxxxxx@xxxxxxxx.xxx
with a copy to:
Xxxx X. Xxxxxxxxxxx, Esq.
Xxxxx Xxxxx Xxxx LLC
One Columbus, Suite 2300
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000 xxx 000
Fax: (000) 000-0000
email: xxxxxxxxxxxx@xxxxxx.xxx
11. BROKER: Xxxxxxx & Wakefield of Florida, Inc.
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
-----------------------------------------------
THIS MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT ("Agreement") is made
and entered into as of the Date of Agreement set forth on the Summary Statement
(the "Date of Agreement" or "Effective Date") by and between THOR URBAN
OPERATING FUND, L.P., a Delaware limited partnership ("Seller"), and GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, ("Purchaser").
RECITALS
--------
A. Seller owns one hundred percent (100%) of the membership interests (the
"Interests") in Xxxx Xxxxxxx Square LLC and Thor MS, LLC, each a Delaware
limited liability company (collectively, the "Company").
B. The Company is the fee owner of certain real property legally described
in Exhibit A attached hereto (collectively, the "Land") and is the owner of
certain buildings, fixtures and other improvements situated on the Land
(collectively, the "Improvements"), said Land and the Improvements are described
in Section 4 of the preceding Summary Statement which is attached to and
incorporated into this Agreement (the "Summary Statement").
C. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Interests, subject to the terms and conditions contained
herein.
AGREEMENTS
----------
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Seller and Purchaser agree as follows:
1. AGREEMENT FOR PURCHASE AND SALE.
Seller agrees to sell, and Purchaser agrees to purchase, subject to the
terms and conditions contained herein the Interests. Seller acknowledges that by
selling the Interests to Purchaser, Purchaser will be receiving all of the
Company's right, title and interest in the Land and the Improvements, together
with all of the Company's right, title and interest in and to:
(a) all rights of way, tenements, hereditaments, easements, interests,
minerals and mineral rights, water and water rights, utility capacity and
appurtenances, if any, in any way belonging or appertaining to the Land and the
Improvements and all of the Company's right, title and interest in and to all
adjoining streets, alleys, roads, parking areas, curbs, curb cuts, sidewalks,
landscaping, signage, sewers and public ways (collectively, the "Appurtenant
Rights"); and
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(b) all equipment and fixtures owned by the Company attached to the
Improvements and located at and used in connection with the ownership, operation
and maintenance of the Land or the Improvements, including without limitation
all heating, lighting, air conditioning, ventilating, plumbing, electrical or
other mechanical equipment and the personal property listed in Exhibit B
attached hereto (collectively, the "Personal Property"); and
(c) all leases, tenancies and rental or occupancy agreements granting
possessory rights in, on or covering the Land or Improvements, together with all
modifications, extensions, amendments and guarantees thereof set forth in
Exhibit C attached hereto, together with such other leases of the Improvements
as may be made prior to Closing in accordance with the terms of this Agreement
(collectively, the "Leases"); and
(d) to the extent not prohibited from being transferred by Purchaser,
all contracts, agreements, guarantees, warranties and indemnities, if any,
affecting the ownership, operation, management and maintenance of the Land,
Improvements, Appurtenant Rights, Personal Property and Leases, including
without limitation those items listed in Exhibit D attached hereto, unless
terminated pursuant to Section 9(d) (all of which that are not terminated are
collectively referred to herein as the "Contracts"); and
(e) to the extent not prohibited from being transferred by Purchaser,
all telephone numbers, plans, drawings, specifications, blueprints and surveys
relating in any way to the Land, Improvements, Appurtenant Rights, Personal
Property, Leases or Contracts, and licenses, franchises, occupancy and use
certificates, permits, authorizations, consents, variances, waivers, approvals
and the like from any governmental or quasi-governmental entity or
instrumentality affecting the ownership, operation or maintenance of the Land or
the Improvements attached hereto (collectively, the "Licenses"); and
(f) all of the Company's rights and interests (if any) in all
promotional materials, marketing materials, brochures, photographs
(collectively, "Promotional Materials"), books, records, tenant data, leasing
material and forms, past and current rent rolls, files, statements, tax returns,
market studies, keys, plans, specifications, reports, tests and other materials
of any kind owned by or in the possession or control of the Company which are or
may be used by the Company in the use and operation of the Land or the
Improvements or Personal Property (collectively, and together with the
Promotional Materials, the "Books and Records"), subject in all cases to any
copyrights and other proprietary rights therein of third parties and without
representation or warranty concerning the contents (including without limitation
the completeness and accuracy thereof) thereof except as expressly set forth
herein.
The Land, Improvements, Appurtenant Rights, Personal Property, Contracts,
Licenses, Books and Records and other property described above are collectively
referred to herein as the "Property." Notwithstanding anything to the contrary
contained herein, the Property specifically excludes any rights to the names
"Thor" and/or "Urban".
2. PURCHASE PRICE.
(a) On the Date of Agreement, Purchaser shall pay to Seller cash or
certified funds the amount of One Million ($1,000,000.00) Dollars (the "Initial
Xxxxxxx Money") as an xxxxxxx money deposit. On or before the expiration of the
Due Diligence Period, Purchaser shall pay to Seller cash or certified funds in
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the amount of Two Million ($2,000,000.00) Dollars as an additional xxxxxxx money
deposit (the additional xxxxxxx money deposit, together with the Initial Xxxxxxx
Money, is referred to herein as the "Xxxxxxx Money, as set forth in Section 6 of
the Summary Statement). Upon the closing of the transaction contemplated by this
Agreement, Purchaser shall receive a credit against the Purchase Price in the
amount thereof. If the transaction does not so close, the Xxxxxxx Money shall be
disbursed in accordance with the terms of this Agreement.
(b) The purchase price for the Interests (the "Purchase Price") shall
be the amount set forth in Section 5 of the Summary Statement. The Purchase
Price, plus or minus prorations and adjustments provided for herein, shall be
paid in cash or cash equivalent to Seller on or before 5:00 p.m. (Eastern
Standard Time) on the Closing Date (as hereinafter defined).
(c) An amount equal to the Purchase Price (reduced by the Xxxxxxx
Money) and any amounts due Seller pursuant to Section 14 shall be due and
payable at the Closing by bank wire transfer of immediately available federal
funds to the account or accounts of Seller or other party or parties as shall be
designated by Seller to Purchaser at least two (2) business days before Closing,
on or before 5:00 p.m. (Eastern Standard Time) on the Closing Date.
(d) Notwithstanding the foregoing, a Purchaser shall receive a credit
against the Purchase Price at Closing, equal to the total amount due, prorated
through the Closing Date under that certain Promissory Note dated August 19,
2005 executed by Company to Xxxxxx Xxxxxxx Mortgage Capital Inc. (together with
its successors and assigns, the "Lender"), in the original principal sum of
$57,000,000 (the "Note") secured by that certain Mortgage and Security Agreement
dated as of August 19, 2005 (the "Mortgage") executed by Seller for the benefit
of Lender as the mortgagee or beneficiary which Mortgage Purchaser shall assume
(subject to the limitations set forth below) and in the certain Loan Agreement
("Loan Agreement") dated August 19, 2005 which governs the Loan. The parties
hereto agree that prior to Closing there will be no payment of principal on the
Note beyond the regular monthly payments required in the Note and the Seller
shall continue to pay when due and timely perform all obligations due under the
Loan Documents (as hereinafter defined).
3. LENDER'S CONSENT TO TRANSFER OF INTEREST
(a) Pursuant to the Loan Agreement, the Note and the Mortgage and the
other agreements referred to therein (the Note, Mortgage and the other
agreements are sometimes hereinafter collectively referred to as (the "Loan
Documents"). Lender advanced to the Company a loan in the principal amount of
$57,000,000 (the "Loan"), which Loan is evidenced by the Note and has a maturity
date of September 1, 2015. As security for the Note, the Seller executed and
delivered the Mortgage to Lender wherein the Seller granted and conveyed to
Lender a lien and security interest in all of the Seller's right, title and
interest in the Property. Other agreements included as part of the Loan
Documents are the Assignment of Leases and Rents, dated as of even date with the
Note, executed by the Seller in favor of Lender (the "Assignment of Leases") and
the Cash Management Agreement, dated as of the date of the Note (the "Cash
Management Agreement") among the Company, Thor Equities, LLC, and Lender. A list
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of the Loan Documents is annexed hereto as Schedule 3; the terms not otherwise
defined in this Section 3 shall have the meanings ascribed thereto in the Loan
Documents. Each reference to a Loan Document shall refer to each such document
as modified or amended prior to Closing to the extent permitted herein by
written consent of Purchaser which consent shall not be unreasonably withheld,
conditioned or delayed. The Loan has been securitized, as contemplated by the
Mortgage, and the current servicing agent for the Loan and the Mortgage is Xxxxx
Fargo ("Servicing Agent").
(b) Seller has advised Purchaser that, among other things, the
assignment of the Interests without the consent of the Lender would constitute a
default under the Loan Documents thereby allowing the Lender to accelerate the
Note and obligate Company to prepay same together with the prepayment fee set
forth in Section 2.4 of the Loan Agreement ("Prepayment Premium"). The parties'
entry into this Agreement, Seller's obligation to convey the Interests to
Purchaser and Purchaser's obligation to purchase the Interests pursuant to this
Agreement are specifically conditioned upon Seller obtaining Lender's consent
(the "Consent") to the sale of the Interests, all without the necessity of
payment of the Prepayment Premium by Seller. The Consent must be obtained within
the time periods set forth in Section 3(d) hereof or Seller may terminate this
Agreement (whereupon the Xxxxxxx Money shall be returned to Purchaser), and
neither party shall have any further rights, obligations or liabilities
hereunder, except for the "Surviving Obligations" (as defined in Section 8(c)
hereof).
(c) Purchaser agrees to use its commercially reasonable and diligent
efforts to cooperate with Seller in their efforts to obtain the Consent promptly
following the Effective Date. Purchaser shall respond within three (3) business
days to Lender's initial request for information, and within one (1) business
day to any subsequent requests. In connection with obtaining the Consent, Seller
agrees to advance all reasonable charges imposed by Lender in connection with
its consideration of such request; all costs and expenses (the "Consent Fees"),
including without limitation, any application fee and if Closing occurs, the
assumption fee (as are set forth in Section 8.1.1 of the Loan Agreement), if
imposed by Lender as a condition of granting its Consent and attorneys' fees,
and other expenses and fees of the Lender, the Servicing Agent and the rating
agencies ("Rating Agencies"), shall be payable at Closing as follows: (i)
Purchaser shall pay the first One Hundred Thousand ($100,000.00) Dollars of the
Consent Fees, and (ii) Purchaser and Seller shall each be responsible for fifty
(50%) percent of the Consent Fees incurred over the amount of $100,000. Any
Consent Fees, other than the application fee, the assumption fee set forth in
Section 8.1.1 of the Loan Agreement, attorneys' fees and other expenses and fees
of the Lender which are typically imposed by comparable Lenders, shall be
subject to Purchaser's prior approval, which approval shall not be unreasonably
withheld. In furtherance of such cooperation Purchaser shall, without
limitation, do the following if required by Lender as a condition to granting
its Consent: (i) form the necessary number of Purchaser single purpose entities
to acquire the Interests owned by Seller, with organizational documents meeting
the requirements of the Loan Documents and otherwise taking such legal and
organizational action as may be necessary to conform to the requirements of the
Loan Agreement and any requirements of the Lender and the Rating Agencies, and
including the organizational documents with respect to any general partner of a
limited partnership entity or any managing member of a limited liability company
and the independent directors for any corporate entity where so required; (ii)
ensure that the organizational documents of the Purchaser single purpose
entities, conform with the requirements of the Loan Agreement and any
requirements of the Lender, including, with respect to the organizational
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documents of the general partners thereof; (iii) provide Lender and the Rating
Agencies with all available background material on Purchaser and its principals
as Lender or the Rating Agencies may reasonably request and/or such other
information that the Lender requests; (iv) agree to be bound by all of the terms
and conditions from and after the date of Closing contained in the Loan
Documents as well as such reasonable modifications thereto as Lender or the
Rating Agencies may request; (v) fund such additional reserves or holdbacks as
may be required by Lender; (vi) provide a guarantor acceptable to Lender and the
Rating Agencies; (vii) maintain a net worth of at least $5,000,000; and (viii)
comply with and taking all actions under Section 8.1.1 of the Loan Agreement,
including, without limitation, obtaining a release of Xxxxxx X. Xxxx ("Sitt") as
Sponsor, Thor Equities L.L.C. as Manager under the Management Agreement and
Seller as Guarantor under the Guaranty of Recourse Obligations and the
Environmental Indemnity Agreement held by Lender in connection with the Loan
(collectively, the "Guarantor Documents"). As the context may reasonably
require, the term "Lender" shall include the Servicing Agent and the Rating
Agencies.
(d) Seller and Purchaser shall keep each other fully apprised of their
discussions with Lender related to this Agreement. The Agreement shall terminate
in the event that Consent has not been obtain on or before the date sixty (60)
days after the Effective Date, provided, however, that either party hereto shall
have the right to extend such termination date for an additional period of sixty
(60) days, by notice to the other prior to the expiration of such initial sixty
(60) day period (as extended, the "Initial Termination Date"). Further, this
Agreement shall not terminate on the Initial Termination Date if Seller elects
to extend such date for a period of up to one hundred eighty (180) days (the
"Extended Closing Date") in order to obtain the Consent (upon notice given to
Purchaser). In the event that Lender refuses in writing to give its Consent by
the Extended Closing Date, this Agreement shall terminate unless Seller shall
elect to further extend the Closing for up to an additional sixty (60) days (the
"Further Extended Closing Date") in order to obtain the Consent. In the event
Lender fails to give its Consent prior to the Further Extended Closing Date, the
Seller or Purchaser may terminate this Agreement. Upon the termination of this
Agreement, as set forth in this Section 3(d), the Xxxxxxx Money shall be
returned to Purchaser, and the parties hereto shall have no further rights,
duties, obligations or liabilities to one another hereunder except for the
Surviving Obligations.
(e) The parties acknowledge that in accordance with the terms of the
Loan Agreement and the Cash Management Agreement, Lender holds or may from time
to time hold, certain funds in reserve (collectively, the "Reserves") on behalf
of the Company as borrower under the Loan.
(f) At the Closing, and Purchaser shall pay to Sellers, in addition to
the Purchase Price, an amount equal to the outstanding balance of the Reserves,
each as existing on the Closing Date (collectively, the "Reimbursement Amount").
(g) Prior to the Closing Date, and as a condition precedent to
Seller's obligation to close hereunder, Purchaser shall be in compliance
(subject to the limitations contained in this Section 3) with all of Lender's
reasonable and customary requirements for the transfer of the Interests in
accordance with the Loan Documents, the Consent and any documents executed in
connection with obtaining the Consent, including but not limited to, any
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requirement, if elected by Lender, that the Purchaser form single purpose
entities which will be the members of the Company under the Note at Closing, and
which will not be engaged in any business or activity other than the ownership,
operation and maintenance of the Property and activities incidental thereto.
Purchaser shall take all necessary steps to ensure compliance with Lender's
requirements in this regard including, but not limited to, executing and
delivering to Seller an assignment of Purchaser's rights and obligations under
this Agreement to affiliated entities that meet Lender's requirements. At or
prior to Closing, Purchaser agrees (i) to obtain insurance policies as required
by Article V of the Loan Agreement and satisfactory to Lender to replace the
insurance policies of Sellers on the Closing Date with respect to the Property
so that the Seller may terminate their policies promptly after Closing, and (ii)
use best efforts to obtain the prior approvals and confirmation required under
the Loan Documents to the appointment of a property manager acceptable to Lender
together with the form of the new management agreement in order to replace the
current manager as of the Closing and (iii) establish all required accounts and
take all actions required of borrowers under the Cash Management Agreement.
(h) At or prior to Closing, and as conditions precedent to Seller's
obligation to close hereunder, (i) Purchaser shall execute such amendments to
the Loan Documents and other documents as Lender may reasonably require in
connection with obtaining the Consent in accordance with Section 3(c) above
(collectively, the "Loan Consent Documents") and perform all obligations
pursuant to Section 8.1.1 of the Loan Agreement (if required by Lender in
connection with providing its Consent) or otherwise required under the Loan
Agreement, and (ii) Xxxxxx X. Xxxx, as Sponsor, Thor Equities L.L.C. as Manager
under the Management Agreement and Seller as Guarantor under the Guarantor
Documents each shall have been released from all obligations under the Guarantor
Documents and other Loan Documents, except for obligations accruing before such
release.
(i) At or prior to Closing, and as a condition precedent to
Purchaser's obligation to close hereunder, Seller shall execute and deliver the
Loan Consent Documents to the extent they are in form reasonably acceptable to
Seller and otherwise comply with the terms of this Section 3 and the Loan
Documents.
4. CLOSING.
Subject to terms and conditions of this Agreement, the closing of the
transaction contemplated by this Agreement (the "Closing") shall take place on
the date set forth in Section 0 of the Summary Statement (the "Closing Date") at
the offices of Xxxxxxx & Masyr, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in escrow, or as the parties shall otherwise agree. On the Closing Date,
Seller shall transfer and convey unencumbered legal title to the Interests to
Purchaser, and the Land shall only be subject to the Permitted Exceptions
identified pursuant to Section 6 below and in accordance with the terms of this
Agreement.
5. ESCROW.
This transaction shall be closed through an escrow established with Title
Company in accordance with the escrow instructions in the form attached hereto
as Exhibit E (the "Escrow"). Upon the creation of the Escrow, anything herein to
the contrary notwithstanding, the transfer and conveyance of the Interests, the
payment of funds and the delivery of the Closing Documents (as defined below)
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and other documents required to close the transaction contemplated by this
Agreement shall be made through the Escrow. The Closing shall take place through
a so-called "New York Style" closing, i.e., so that the Interests and other
documents contemplated by this Agreement will be delivered to Purchaser and
Seller shall receive the net sale proceeds on the Closing Date.
6. TITLE COMMITMENT AND DUE DILIGENCE PERIOD.
(a) The Company owns an existing Owner's Title Insurance Policy (the
"Title Policy") which is attached to this Agreement as Schedule 6.1. At
Purchaser's sole cost and expense, Purchaser shall cause the Title Company to
undertake a title search and issue an updated Title Insurance Commitment (the
"Title Commitment") for the period from the date of the Title Policy to
determine that the title to the Property is consistent with the terms of Section
6(b) below. In addition, Purchaser shall have the right to obtain, at its sole
cost and expense, a commitment from the Title Company to (i) issue any
endorsements to the Title Commitment or Title Policy which are available in the
State of Florida desired by Purchaser, provided that, subject to the Seller's
obligation to execute and deliver the Title Affidavit pursuant to Section
11(b)(v), Seller is not obligated to incur any expense or liability (contingent
or otherwise) in connection therewith, and/or (ii) obtain reinsurance of (or
insurance of a portion of) the Title Policy pursuant to reinsurance agreements
and direct access agreements in form and substance reasonably satisfactory to
Purchaser.
(b) Purchaser and Seller agree that the following are exceptions to
title (the "Permitted Exceptions"): (1) the Leases identified on Exhibit C
hereto and any Leases entered into after the date hereof but prior to Closing in
compliance with the terms of this Agreement, (2) all non-delinquent real estate
taxes and assessments and personal property taxes and all real estate taxes and
assessments and personal property taxes which are the obligations of or which
are paid directly by Tenants under the Leases identified on Exhibit C in effect
on the Closing Date to the entity imposing same, (3) the rights of the Tenants
under the Leases and under any Leases entered into after the date hereof but
prior to Closing in compliance with the terms of this Agreement, (4) all matters
created by or on behalf of Purchaser, including, without limitation, any
documents or instruments to be recorded as part of obtaining the Lender's
Consent, (5) mechanics' or similar liens against any tenants under Leases which
are in full force and effect on the Closing Date and which obligate the Tenants
thereunder to remove and discharge such liens at their expense, (6) all matters
set forth on the Schedule of Permitted Exceptions attached hereto as Schedule 6
and 6.1, (7) the Loan Documents, and (8) any exception on the Title Commitment
not included in the Purchaser's Exception Notice (hereinafter defined) or deemed
to be a Permitted Exception pursuant to this Article 6.
(c) On or before the date that is ten (10) days after the Effective
Date (the "Title Objection Date"), Purchaser will notify Seller in writing (the
"Exception Notice") as to those title exceptions listed in the Title Commitment
which are not Permitted Exceptions and which it will not accept. If Purchaser
fails to provide Seller the Exception Notice on or before the Title Objection
Date, the title exceptions listed in the Title Commitment (except for monetary
liens subject to the Cap set forth below) shall be deemed to be Permitted
Exceptions and Purchaser shall be deemed to have waived its right to object to
such exceptions. Seller shall have the right, but not the obligation, to extend
the Closing Date for a period of up to ninety (90) days (the expiration of such
ninety (90) day period being hereinafter sometimes referred to as the "Title
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Clearance Date"), to have all title exceptions other than Permitted Exceptions
(collectively, the "Unpermitted Exceptions") cured, or, with respect to Liens
(as hereinafter defined) to have the Title Company commit to insure at Seller's
expense, against any and all loss or damage that may be occasioned by any such
Unpermitted Exceptions. If Seller fails on or before the Title Clearance Date to
reasonably demonstrate to Purchaser that the Unpermitted Exceptions have been
cured or to obtain the insurance described in the preceding sentence in the case
of items that are Liens, Purchaser shall, as its sole remedy, have the option
(the "Title Election") to either (i) terminate this Agreement, in which case the
parties hereto shall have no further obligations hereunder (except for
obligations that are expressly intended to survive the termination of this
Agreement), and receive a return of the Xxxxxxx Money, or (ii) proceed with
Closing, in which case the Purchase Price shall be reduced by an amount equal to
the aggregate amount of all tax, judgment, mechanics' and other liens of a
definite and ascertainable amount which may be cured solely by payment of a
liquidated amount (other than the Loan Documents encumbering the Property) and
which were caused by the affirmative acts of Seller (and not of any third party,
including, without limitation, Tenants) not in excess of an aggregate amount of
$250,000 (the "Cap") that constitute Unpermitted Exceptions ("Liens") and
Purchaser shall be deemed to have waived any objection to any other Unpermitted
Exceptions. If Purchaser fails to notify Seller of its Title Election by the
earlier of the Title Clearance Date or five (5) days after the date Seller
notifies Purchaser in writing that Seller will not remove any Unpermitted
Exception, Purchaser shall be deemed to have elected to proceed with the
Closing, as set forth in subclause (ii) above. Purchaser agrees that,
notwithstanding the fact that a release of all Liens may not be obtained prior
to or at Closing, and that some or all of the Liens may still be of record, so
long as the Title Policy issued by the Title Company does not include any of the
Liens as an exception to title, Purchaser shall proceed to Closing as provided
herein. Seller shall nevertheless be obligated to cause Liens to be satisfied of
record after Closing at Seller's sole expense, provided that Seller under no
circumstances shall be required by this Section 6(c) to expend, in the
aggregate, an amount in excess of the Cap. Seller may use the Purchase Price to
effectuate the release of any Liens or other encumbrances.
(d) Notwithstanding anything contained in this Agreement to the
contrary, with respect to all matters affecting title to the Property and any
liens or other encumbrances affecting the Property, Purchaser acknowledges and
agrees that it is relying upon the Title Policy, any endorsements thereto and on
the Title Commitment (collectively the "Purchaser Title Protection Documents").
If Purchaser has a claim under its Purchaser Title Protection Documents and the
subject matter of that claim also constitutes a breach of any representation,
warranty or covenant made by Seller in this Agreement, the Deed or any other
document delivered in connection with the Closing, Purchaser agrees that it will
look solely to its Purchaser Title Protection Documents for recovery on such
claim, and Purchaser shall not assert any claim against Seller for a breach of a
representation, warranty or covenant with respect to such claim.
7. CONDITIONS PRECEDENT TO CLOSING
Purchaser's obligation to purchase is expressly conditioned upon each of
the following, it being understood that the failure of Seller to supply any of
the following shall not be a default by Seller:
Page 8
(a) Tenant Estoppels. Receipt by Purchaser of executed estoppel
certificates from (i) JC Penney, Xxxx Theatre, Xxxxx & Barry's, Books-A-Million,
and KLD Youth Foundation, and (ii) tenants that occupy not less than seventy
(70%) percent of the remaining space (the "Remaining Space") that is open for
business in the Improvements, in the form of Exhibit F or such other form as is
specified in the applicable Lease, and provided that any such estoppel
certificate shall be accepted as long as it does not indicate the continuing
existence of an actual material default of Seller as landlord under the
applicable Lease; provided, however, that if an estoppel certificate shall so
indicate the continuing existence of an actual material monetary default of
Seller as landlord under the applicable Lease, Purchaser shall not be relieved
of its obligation to close hereunder if (i) Seller shall cure such default prior
to the Closing, or (y) Purchaser shall receive a credit against the balance of
the Purchase Price due at the Closing in the amount of such material monetary
default.
(b) Extension Right. In the event Seller is unable to obtain such
tenant Estoppels (the "Estoppels") as provided for above and Purchaser does not
waive the requirement of receiving such Estoppels, Seller may, by written notice
to Purchaser, elect to extend the Closing Date for a period not to exceed sixty
(60) days, during which xxxx Xxxxxx shall continue to use commercially
reasonable efforts to obtain such Estoppels.
(c) Seller Estoppel. In the event that Seller is unable to provide the
Estoppels to Purchaser at the Closing as required by Section 7(a)(ii) above,
Seller may, at its option, elect to execute and deliver to Purchaser (x)
certificates (individually, a "Seller Estoppel Certificate", and collectively,
the "Seller Estoppel Certificates") containing substantially the same
information as required pursuant to Section 7(a)(ii) above so that Purchaser
shall receive, at Closing, either an Estoppel or Seller Estoppel Certificates
from all required parties. In the event that Seller elects to deliver such
Seller Estoppel Certificates, each statement therein shall survive for a period
terminating on the earlier of (i) six (6) months from the Closing Date, or (ii)
the date on which Purchaser has received an executed Estoppel signed by the
required party in question. If Purchaser receives an Estoppel which contains
some, but not all of the matters set forth in the required Estoppel (a "Partial
Certificate") and Seller elects to provide a Seller Certificate for the
applicable tenant, then (1) if the Partial Certificate is received prior to
Closing, the Seller Estoppel Certificate may omit matters contained in the
Partial Certificate and (2) if the Partial Certificate is received after
Closing, the Seller's Estoppel Certificate shall cease to survive as to the
matters contained in the Partial Certificate. If Seller does not deliver
Estoppels or Seller Estoppel Certificates to Purchaser for the required parties,
as required above, Purchaser may, as its sole action and remedy, by delivering
written notice to Seller on or prior to the Closing Date, terminate this
Agreement, in which event the Xxxxxxx Money shall be returned to Purchaser, this
Agreement shall be null and void, and neither party shall have any further
rights or obligations under this Agreement, except for those obligations which
by their express terms survive the termination of this Agreement. Provided
however, in no event may the aggregate of all Seller Estoppel Certificates,
including Seller Estoppel Certificates for a Partial Certificate, relate to more
than ten percent (10%) of the Remaining Space.
(d) REA Estoppel. Seller shall have delivered to Purchaser estoppel
certificates from all current parties to Four-Party Tie-In Agreement dated as of
April 26, 2002, originally by and between Xxxx Xxxxxxx Life Insurance, X.X. Xxxx
& Company, Burdines, Inc., and Sears Xxxxxxx and Company (the "REA") affecting
the Property, in the form required pursuant to such REA (the "REA Estoppels").
Page 9
(e) The Title Company shall be in a position to issue the Purchaser
Title Protection Documents (other than endorsements which were not previously
included in the Title Policy, or are not presently offered by the Title Company
in connection with this transaction) requested by Purchaser;
(f) All of the Seller's representation and warranties shall be true
and correct in all material respects on the Closing Date.
8. REPRESENTATIONS AND WARRANTIES.
(a) As used in this Section 8, references to "Seller's actual
knowledge" shall mean the actual knowledge of Xxxxx Xxxxxxxx without
investigation or inquiry of any other person or entity. Seller represents and
warrants that Xxxxx Xxxxxxxx is responsible for day-to-day supervision of the
Property. Seller represents, warrants and covenants to Purchaser, as of the date
hereof, as follows:
(i) To Seller's actual knowledge, except as shown on (w) the list
of Leases attached hereto as Exhibit C (as to the representation made on the
date of this Agreement), (x) the list of Leases delivered on the Closing Date
pursuant to Section 11 below (as to the representation made as of the Closing
Date) (as applicable, the "Lease List"), (y) agreements listed in the Title
Commitment, there are no persons in possession or occupancy of the Property, or
any part thereof, or who have the right such possession or occupancy;
(ii) Neither the execution or delivery of this Agreement, the
consummation of the transaction contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions hereof conflict with or result in a
material breach of any of the terms, conditions or provisions of any agreement
or instrument to which Seller is a party or by which Seller is bound;
(iii) To Seller's actual knowledge, there are no material
contracts or agreements affecting the Land or the Improvements which will
survive Closing and be binding upon Purchaser except as disclosed in Exhibit C,
D and J attached hereto or in the Title Commitment and, to Seller's actual
knowledge, no party is in material default under any such Contracts;
(iv) Seller is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and is
qualified to do business under the laws of the jurisdiction where the Land is
located. Seller has or will have all necessary limited liability company power
and authority to enter into this Agreement and to consummate all of the
transactions contemplated herein. The individuals executing this Agreement on
behalf of Seller are duly authorized to execute, deliver and perform this
Agreement on behalf of Seller and to bind Seller. This Agreement and all
documents to be executed by Seller and delivered to Purchaser hereunder (i) are
and will be the legal, valid and binding obligations of Seller, enforceable
against Seller in accordance with their terms, except to the extent
Page 10
enforceability is limited by bankruptcy and other laws that relate to creditors'
rights; (ii) do not and will not contravene any provision of Seller's
organizational documents, or to Seller's actual knowledge, any existing laws or
regulations applicable to Seller, and (iii) will not result in a material
violation of any agreement, instrument, order, writ, judgment or decree to which
Seller or the Property is a party or subject.
(v) To Seller's actual knowledge, except as set forth on Schedule
8(a)(v) annexed hereto (the "Retained Employees"), there are no persons employed
by Seller at the Property in connection with the operation or maintenance of the
Property who will be employed by the Company after the Closing. Schedule 8(a)(v)
fully discloses the salary, other benefits and the length of the term, if any,
of each of the Retained Employees.
(vi) The Company is, and always has been, a limited liability
company duly organized and existing under the laws of the State of Delaware. The
Company is in good standing under the laws of the State of Delaware. The Company
has the requisite limited liability company power and authority to own, operate,
lease and encumber the Property and to carry on its business as it is now being
conducted. The Company is duly licensed or qualified to do business as a foreign
limited liability company and is in good standing under the laws of the State of
Florida and under any other jurisdiction in which the character of the
properties owned, leased or operated by it therein or in which the transaction
of its business makes such license or qualification necessary, except where the
failure to be so licensed or qualified or to be in good standing would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (as hereinafter defined). For purposes of this Agreement, a
"Material Adverse Effect" means a material adverse effect on (x) the assets,
liabilities, business, properties, results of operations, or condition
(financial or otherwise) of the Company taken as a whole or (y) the ability of
the Company to perform its obligations under this Agreement in all material
respects;
(vii) The Company does not own, directly or indirectly, any
capital stock or any other equity interest in any corporation, partnership
company, trust, limited liability company or other legal entity, whether
incorporated or unincorporated, and the only property owned by the Company is
the Property and related operating accounts and reserve accounts;
(viii) Seller owns 100% of the Interests in the Company. The
Interests are validly issued, fully paid and non-assessable. There are no
securities outstanding which are convertible into, exchangeable for, or carrying
the right to acquire, equity securities (or securities convertible into or
exchangeable for equity securities) of the Company, or subscriptions, warrants,
options, calls, convertible securities, registration or other rights or other
arrangements or commitments obligating the Company to issue, transfer or dispose
of any of its equity securities or any ownership interest therein and there are
no pre-emptive rights in respect of the Interests. There are no outstanding
obligations of the Company to repurchase, redeem or otherwise acquire any
Interests. Schedule 8(a)(v)(iii) fully and accurately describes the Company's
Operating Agreements, Articles of Formation and any and other limited liability
company organizational documents which in any way relate to the formation or
limited liability organization of the Company or directly or indirectly relate
to any rights of whatever nature or kind in any way involving the Interests;
Page 11
(ix) Seller has good and valid title to the Interests, free and
clear of all liens, pledges, charges, security interests, rights of first
refusal or encumbrances of any kind ("Liens"). The Interests are not subject to
any voting or transfer restrictions (other than restrictions generally imposed
on securities under U.S. federal, state or foreign securities laws), and as
contained in the Company's operating agreement, other than as may be provided in
the Loan Documents.
(x) "Taxes" shall mean any tax, charge or assessment by any
Governmental Authority, including but not limited to, any deficiency, interest,
penalties and reasonable attorneys' and accountants' fees and expenses incurred
in connection therewith. "Governmental Authority" means any federal, state,
regional, municipal, or local authority, agency, body, court or instrumentality,
regulatory or otherwise, domestic or foreign. "Tax Returns" shall mean all tax
returns, reports and declarations required by any Governmental Authority to have
been filed for or on behalf of the Company, or given to any of the Company's
members prior to the Closing Date (except to the extent that the deadline for
filing has yet to pass). Seller represents and warrants that all Tax Returns
have been duly and properly filed with every applicable Governmental Authority,
and given to its members, and that to the extent any Taxes were due and payable
by the Company, or required to be withheld for any of the Company's employees,
the Company caused all such Taxes to have been fully paid or withheld. There are
no Tax claims, audits or proceedings pending or threatened against the Company.
Notwithstanding any other term or condition of this Agreement, the
representations and warranties contained in this Section 8(a)(x) shall survive
the Closing for a period of three (3) years, and not be subject to the Seller's
Threshold Liability or the Seller's Maximum Liability set forth in Section 17(a)
below.
(xi) Schedule 8(a)(xi) consists of (i) a list identifying the
Company's balance sheet, related statements of income and cash flows for the
year of Closing, monthly operating statements for the period that the Company
has owned the Property (collectively the "Financial Statements"); (ii) and the
Company's balance sheet as of December 31, 2006 (the "Acquisition Balance
Sheet") as compiled by the Company's certified public accountants on a income
tax basis. All Financial Statements and the Acquisition Balance Sheet have or
will be delivered to the Purchaser within ten (10) business days after the
Effective Date, and all of same were prepared from the Company's books of
account on a income tax basis consistently applied, are accurate and complete in
all material respects, and fairly present the financial condition, results of
operations and cash flows of the Company at the dates and for the periods
indicated, in all material respects. The books of account of the Company
accurately reflect all items of income and expense and all assets and
liabilities of the Company, in all material respects, except as otherwise
provided herein. The Company has no material liabilities except to the extent
provided for or reserved against on the Acquisition Balance Sheet, except for
any unknown liabilities which, in the aggregate, do not exceed Fifty Thousand
Dollars ($50,000.00). Outstanding liabilities of the Company set forth in
Section 14 hereof shall be prorated as of the Closing Date, as provided herein.
Any claim by Purchaser under this Section 8(a)(xi) shall not be subject to
Seller's Threshold Liability, provided that the aggregate of all such claims
exceeds the amount of $50,000.
Page 12
(xii) Except for such actions, suits, claims or proceedings for
personal injury or property damage, as itemized on Schedule 8(a)(xii) no
actions, suits, claims, investigations or proceedings (collectively, the
"Actions") (a) are pending or to Seller's actual knowledge threatened against
the Company; (b) have been served upon the Company, nor has the Company
initiated any court, administrative or bankruptcy proceedings in any way
involving or relating to the Company or the Property, nor to the Seller's actual
knowledge, have any of same been filed, or threatened in writing, with respect
to the Company or the Property; or (c) have been rejected for a legal defense by
the applicable insurance carrier insuring the action, suit, claim or proceeding.
With respect to all such Actions, not listed on Schedule 8(a)(xii) which arise
after the Effective Date of this Agreement, Seller hereby agrees that it shall
promptly disclose all of same to Purchaser in writing. Seller represents and
warrants to the Purchaser that to Seller's actual knowledge, all Actions shall
be or were timely sent to the applicable insurance carrier for coverage and
defense, unless and to the extent disclosed on Schedule 8(a)(xii) (as updated
prior to Closing), and all of same were accepted by the insurance carrier for
coverage and defense. To Seller's actual knowledge, there are no state of facts
or events which could reasonably be expected to form the basis of any Actions.
Any claim by Purchaser under this Section 8(a)(xii), shall not be subject to the
Seller's Threshold Liability, provided that the aggregate of all such claims
exceeds the amount of $50,000.
(xiii) None of the Company's employees has been laid off or
terminated in the last six (6) months except as set forth in Schedule
8(a)(xiii), and, Seller has not received written notice that the Company has not
fully paid all termination and severance payments which may be required to have
been paid with respect to any such employees. Except as provided on Schedule
8)(a)(xiii), Seller has received no written notice of any pending controversies,
grievances or claims by the Retained Employees or any former employees or
beneficiaries thereof pending with respect to the employment or benefits
incident thereto, including but not limited to, claims arising out of sexual
harassment, discrimination, workers' compensation laws or otherwise
(collectively the "Employee Claims"), and to Seller's actual knowledge, there is
no state of facts or event which could reasonably be expected to form the basis
of any Employee Claims. All Employee Claims made against the Company during it
period of ownership of the Property are fully disclosed on Schedule 8(a)(xiii).
Any claim by Purchaser under this Section 8(a)(xiii), shall not be subject to
the Seller's Threshold Liability, provided that the aggregate of all such claims
exceeds the amount of $50,000.
(xiv) Except as itemized on Schedule 8(a)(xiv), (a) the Company
has received no notices from any Governmental Authority that the Land and
Improvements are in violation or noncompliance with applicable laws,
regulations, ordinances and codes, and (b) the Company has received no notices
that it has failed to obtain approvals, permits or licenses required to operate
the Improvements as may be required by any applicable Governmental Authority,
(xv) All of the Leases and any of the Proposals (as that term is
defined in Section 20(b) below) have been delivered to the Purchaser, and each
is a full and complete copy thereof. Except as set forth on Schedule 8(a)(xv),
to Seller's actual knowledge, no Tenant is in default beyond any applicable
Page 13
grace period under its Lease, and the Lease List attached as Exhibit C of this
Agreement is true and accurate in all material respects. The Seller agrees to
update the Lease List prior to the Closing. Except as provided in the Leases, or
any of the Proposals, or as otherwise disclosed to Purchaser, no brokerage
commissions are due related the current term of any Lease existing as of the
Effective Date, or any renewal or extension thereof.
(b) Purchaser represents and warrants to Seller, now and again on the
Closing Date, that: (i) Purchaser has all necessary limited partnership power
and authority to enter into this Agreement and to consummate all the
transactions contemplated herein, (ii) the individuals executing this Agreement
on behalf of Purchaser are duly authorized to execute, deliver and perform this
Agreement on behalf of Purchaser and to bind Purchaser from and after Closing,
and (iii) this Agreement and all documents to be executed by Purchaser and
delivered to Seller hereunder (A) are and will be the legal, valid and binding
obligations of Purchaser, enforceable in accordance with their terms, except to
the extent enforceability is affected by bankruptcy or similar laws affecting
creditors' rights (B) do not or will not contravene any provision of Purchaser's
organizational documents, or to Purchaser's knowledge any existing laws and
regulations applicable to Purchaser, and (C) will not result in a material
violation of any agreement, instrument, order, writ, judgment or decree to which
Purchaser is a party or is subject.
(c) All of the representations and warranties of Seller and Purchaser
contained in this Agreement or in any of the Closing Documents are material,
none shall merge into the documents pursuant to which the Interests are
transferred to Purchaser, except as expressly provided herein, and all shall
survive the Closing Date or termination of this Agreement for a period of nine
(9) months (the "Survival Period"). All rights of Purchaser hereunder or under
any of the Closing Documents, with respect to any surviving representation or
warranty of Seller ("Surviving Obligations") shall be deemed waived if Purchaser
does not, by written notice to Seller, advise Seller of any alleged breach of
such representation or warranty prior to the expiration of the Survival Period.
Further, if Purchaser has knowledge of any breach of any surviving
representations or warranties of Seller prior to the Closing Date, and elects to
proceed to Close hereunder, any Surviving Obligations with respect thereto shall
be deemed to be waived by Purchaser. Subject to the limitation set forth in the
two (2) immediately preceding sentences, all remedies shall be those set forth
in Section 17 below (except as otherwise expressly provided herein), and
notwithstanding anything herein to the contrary, Seller's liability under any
representation, warranty, covenant or indemnity made hereunder or in any of the
Closing Documents shall in no event exceed the aggregate Seller's Maximum
Liability (as hereinafter defined). The provisions of this Section 8(c) shall
survive the Closing.
9. SELLER'S COVENANTS.
From and after the date of this Agreement through the Closing Date, Seller
and Seller's agents shall cause the Company at the Company's expense to:
(a) maintain and operate the Property in a manner consistent with
current practice and materially perform its obligations under the Leases,
Contracts and Licenses;
Page 14
(b) keep in existence all fire and extended coverage insurance
policies, and all liability insurance policies, that are in existence as of the
date of this Agreement with respect to the Property;
(c) promptly advise Purchaser in writing of any changes in
circumstances that would render the representations and warranties made by
Seller herein false or misleading in any material respect and not cause any of
such representations or warranties to become false;
(d) upon written notice from Purchaser on or before Closing, cause the
Company to give appropriate notices of termination of Contracts designated by
Purchaser (but only to the extent termination is permitted thereunder without a
penalty); provided, however, that if the notice period required to terminate
such Contracts will not have run prior to Closing, Purchaser shall accept the
termination of the Contract consistent with the notice period provided in the
respective Contract;
(e) not to pledge or otherwise encumber any of the Property;
(f) not permit the Company to acquire or agree to acquire, by merging
or consolidating with, or by purchasing any equity interest in or any portion of
the assets of, or by any other manner, any business or any corporation,
partnership, association or business organization or division thereof, or
otherwise acquire or agree to acquire any amount of assets, or otherwise conduct
any business activities of whatever nature or kind other than in the ordinary
course of business;
(g) not permit the Company to make any material changes in its present
accounting methods, except as required by law, rule, regulation or GAAP, or
other method currently used by the Company; and
(h) not permit the Company to, (i) make or rescind any express or
deemed material election relating to taxes, (ii) materially change any of its
methods of reporting income or deductions for Federal income tax purposes,
except as may be required by applicable law; or (iii) file any material tax
return other than in a manner consistent with past custom and practice.
(i) pay all obligations (or the installment thereof then due and
payable, if any such obligations are payable in installments) relating to any
capital charges, impound, connection or development fees imposed by any
Governmental Authority, or any public or private utility relating to the Land
and Improvements which are due and payable prior to the Closing Date.
Page 15
10. SELLER'S DELIVERIES AND DUE DILIGENCE.
(a) Seller's Deliveries. Seller shall endeavor to provide all
documents in Seller's possession reasonably requested by Purchaser, which are
not of a confidential nature, within five (5) days after any written request
therefore, provided, however, that Seller's failure to provide any documents or
information shall not be deemed to be a default hereunder.
In the event this Agreement terminates for any reason, Purchaser shall
immediately return to Seller all information delivered by Seller or Seller's
agent(s) to Purchaser or Purchaser's agent(s). The foregoing provision shall
survive the termination of this Agreement.
(b) The due diligence period ("Due Diligence Period") shall commence
on the Effective Date and expire on July 31, 2007. Purchaser and its
representatives shall be permitted to enter upon the Land at any reasonable time
and from time to time before the Closing Date to examine, inspect and
investigate the Land and Improvements as well as all records and other
documentation provided by Seller or located at the Land (collectively, "Due
Diligence"). The Due Diligence shall be subject to the terms, conditions and
limitations set forth in this Section 10.
(c) Purchaser shall have a right to enter upon the Land for the
purpose of conducting its Due Diligence provided that in each such instance (i)
Purchaser notifies Seller of its intent to enter the Property to conduct its Due
Diligence not less than thirty six (36) hours prior to such entry; (ii) the date
and approximate time period are scheduled with Seller; and (iii) Purchaser is in
full compliance with the insurance requirements set forth in Section 10(g)
hereof. At Seller's election, a representative of Seller shall be present during
any entry by Purchaser or its representatives upon the Property for conducting
its Due Diligence. Neither Purchaser, nor any representative thereof, shall have
discussions or interfere with the tenants or ongoing operations occurring on the
Land and Improvements. Purchaser shall not cause or permit any mechanic liens,
materialmen's liens or other liens to be filed against the Land and Improvements
as a result of its Due Diligence.
(d) Purchaser shall have through the last day of the Due Diligence
Period in which to conduct its Due Diligence and, in Purchaser's sole
discretion, to determine whether the Land and Improvements are acceptable to
Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any
problem or defect in the Land and Improvements or any other aspect of the Land
and Improvements which Purchaser determines makes the Property unsuitable to
Purchaser, and after reasonable efforts by Purchaser, is not able to work out an
acceptable resolution with Seller with respect to any deficiencies or other such
matters, Purchaser may terminate this Agreement by giving written notice of
termination to Seller on or before the last day of the Due Diligence Period. If
Purchaser does not timely give notice of termination as aforesaid, Purchaser
shall be deemed to have accepted the Land and Improvements and this Agreement
shall continue in full force and effect. In the event of such termination, the
Xxxxxxx Money shall be returned to Purchaser and neither party shall have any
further obligations to the other party hereunder, except for obligations which
expressly survive the expiration or termination of this Agreement.
Page 16
(e) Purchaser shall have the right to conduct, at its sole cost and
expense, any inspections, studies or tests that Purchaser deems appropriate in
determining the condition of the Property, provided that a copy of each such
inspection, study or report shall be provided to Seller simultaneously with
being delivered to Purchaser. Provided, however, Purchaser shall not perform any
intrusive testing, including, without limitation, a Phase II environmental
assessment or boring, without (i) submitting to Seller the scope and inspections
for such testing; and (ii) obtaining the prior written consent of Seller, which
consent may be withheld by Seller in sole and absolute discretion.
(f) Purchaser agrees and covenants with Seller not to disclose to any
third party (other than lenders, accountants, attorneys and other professionals
and consultants in connection with the transaction contemplated herein) without
Seller's prior written consent, unless Purchaser is obligated by law to make
such disclosure, any of the reports or any other documentation or information
obtained by Purchaser which relates to the Property or Seller in any way, all of
which shall be used by Purchaser and its agents solely in connection with the
transaction contemplated hereby. In the event that this Agreement is terminated,
Purchaser agrees that all such information will be held in strict confidence.
(g) Purchaser agrees to indemnify, defend and hold Seller and its
respective partners, trustees, beneficiaries, shareholders, members, managers,
advisors and other agents and their respective employees, officers, directors
and shareholders (the "Indemnified Parties") harmless from and against any and
all claims, losses, damages, costs and expenses (including, without limitation
actual attorneys' fees and court costs) made, brought, sought or incurred by any
of the Indemnified Parties by reasons directly or indirectly arising out of,
caused (in whole or in part) by or in connection with any activities of
Purchaser (including activities of any of Purchaser's employees, consultants,
contractors or other agents) relating to the Land and Improvements, including,
without limitation, mechanics' liens, damage to the Land and Improvements,
injury to persons or property resulting from such activities in connection
therewith, and in the event that the Land and Improvements is disturbed or
altered in any way as a result of such activities. Purchaser shall promptly
restore the Land and Improvements to its condition existing prior to the
commencement of such activities which disturb or alter the Land and
Improvements. Furthermore, Purchaser agrees to maintain and cause any of its
representatives or agents conducting any Due Diligence to maintain and have in
effect workers' compensation insurance, with statutory limits of coverage, and
commercial general liability insurance with (i) all risk coverage, (ii) waiver
of subrogation, and (iii) limits of not less than Five Million Dollars
($5,000,000.00) for personal injury, including bodily injury and death, and
property damage, in such form, by a sufficiently rated insurance company, and
containing such additional coverage, as shall be reasonably required by Seller
on a commercially reasonable basis. Such insurance shall name Seller and the
Company, Lender and such other parties having an insurable interest in the
Property required by Seller, as an additional insured party. Purchaser shall
deliver to Seller a copy of the certificate of insurance effectuating the
insurance required hereunder (or the policy if requested by Seller) prior to the
commencement of such activities which certificate (or policy) shall provide that
such insurance shall not be terminated or modified without at least thirty (30)
days prior written notice to Seller.
Page 17
11. DELIVERY OF DOCUMENTS.
(a) On the Closing Date, Seller shall deliver the following documents
(the "Closing Documents") to Purchaser, all duly executed and if to be recorded,
acknowledged, by Seller, where appropriate, each of which shall be a condition
precedent to Purchaser's obligation to close the transaction contemplated by
this Agreement (and one or more of which may be waived in writing by Purchaser,
in its sole discretion, on or prior to the Closing Date) in form and substance
specified below, or if not specified, in form and substance reasonably
acceptable to Purchaser and Seller:
(i) an assignment and assumption of membership interests, in the
form of Exhibit G attached hereto (the "Assignment and Assumption");
(ii) To the extent required by the Title Company, an ALTA
statement or affidavit in customary form annexed hereto as Schedule 11(a)(v)
(the "Title Affidavit");
(iii) Seller's executed counterpart of a closing and proration
statement;
(iv) a certification of nonforeign status satisfying Section 1445
of the Internal Revenue Code of 1986, as amended;
(v) evidence of Seller's existence and authority to perform its
obligations under this Agreement, in form and substance reasonably satisfactory
to the Title Company and the Purchaser;
(vi) all keys and access cards to, and combinations to locks and
other security devices located at, the Property, if applicable;
(vii) all of the original Leases, Contracts and Licenses in
possession or control of Seller or the Company (or copies thereof to the extent
not in Seller's or the Company's possession), and all Books and Records in
Seller's possession or control together with (A) letter(s) from Seller advising
the tenants under the Leases and vendors under the Contracts to be assigned of
the new of the Company and in the case of Leases, the manner in which rent is to
be paid subsequent to Closing, if any such change is required by the Lender or
Purchaser, in the form of Exhibit H hereto; and (B) evidence of termination of
Contracts designated by Purchaser, if applicable;
(viii) a certificate in the form of Exhibit I recertifying the
representations and warranties set forth in Section 8(a) above as of the Closing
Date; and
(ix) all other documents and deliverables as are required by this
Agreement.
(b) On the Closing Date, Purchaser shall deliver the following to
Seller, in form and substance reasonably acceptable to Seller or in form as
required under this Agreement, all duly executed by Purchaser, where
appropriate, each of which shall be a condition precedent to Seller's obligation
to close the transaction contemplated by this Agreement:
Page 18
(i) executed certification of nonforeign status described above;
(ii) counterparts of the Assignment and Assumption;
(iii) counterparts of the closing and proration statement;
(iv) a certified copy of the resolutions or consent of Purchaser
authorizing the transaction contemplated by this Agreement or other satisfactory
evidence of authorization;
(v) to the extent required by the Title Company, an ALTA
statement or title affidavit in customary form;
(vi) a certificate recertifying the representations and
warranties set forth in Section 8(b) as of the Closing Date;
(vii) the Purchase Price in accordance with Section 2 hereof,
plus or minus prorations and adjustments;
(viii) evidence of a name change filing to be submitted to the
Secretary of State of the State of Delaware from the current name of each
Company to a name not incorporating the words "Thor" and the Purchaser hereby
agrees within three (3) days of the Closing to file such name change with
Delaware; and
(ix) such other documents, instruments or agreements as may be
reasonably requested by Seller or Title Company or the escrow agent, in order to
issue the Title Insurance Protection Documents free of any exceptions raised due
to the actions or omissions of Purchaser or its agents or contractors
("Purchaser Exceptions"), and to otherwise consummate the Closing.
12. FIRE OR CASUALTY.
In the event of damage to the Property by fire or other casualty prior to
the Closing Date, Seller shall promptly notify Purchaser of such fire or other
casualty. If the fire or other casualty causes damage which would cost in excess
of $5,000,000 to repair (as determined by a licensed engineer or architect
retained by Purchaser in good faith), or permit any tenant under a Lease of more
than 25,000 square feet to terminate its Lease, then Purchaser may elect, by
written notice to be delivered to Seller on or before the sooner of (i) the
twentieth (20th) day after Purchaser's receipt of such notice or (ii) the
Closing Date, to either: (a) close the transaction contemplated by this
Agreement, in which event all insurance proceeds received prior to Closing shall
be retained by the Company and deemed part of the Property to be transferred at
Closing and Purchaser shall be entitled to a credit in the amount of any
applicable deductibles or expended by Seller or the Company solely in connection
with the repair or replacement of the Property following such casualty, or (b)
terminate this Agreement, and receive a return of the Xxxxxxx Money in which
Page 19
case the parties hereto shall have no further obligations hereunder (except for
obligations that are expressly intended to survive the termination of this
Agreement). If the damage to the Property by fire or other casualty prior to the
Closing Date would cost $5,000,000 or less to repair (as determined by a
licensed engineer or architect retained by Purchaser in good faith) and not
permit any tenant under a Lease of more than 25,000 square feet to terminate its
Lease, Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, and Seller shall have the right to elect to
either repair and restore the Property to the condition that existed before such
damage if such repair or restoration may be completed prior to the Closing Date,
but if Seller does not do so prior to Closing, then all insurance proceeds
received prior to Closing shall be retained by the Company and deemed part of
the Property to be transferred at Closing and Purchaser shall be entitled to a
credit in the amount of any applicable deductibles. Notwithstanding anything to
the contrary contained herein, the Company shall have the right to receive all
insurance proceeds attributable to damage to the Property occurring prior to the
date of this Agreement. For purposes of this Section 12, the term "Property"
shall be limited to and refer only to the Land and Improvements.
13. CONDEMNATION.
If, prior to the Closing Date, all or any part of the Property is taken by
condemnation or a conveyance in lieu thereof, or if Seller receives notice of a
condemnation proceeding with respect to the Property, then Seller shall promptly
notify Purchaser of such condemnation or conveyance in lieu thereof. If the
taking or threatened taking involves a material portion of the Property
(hereinafter defined), Purchaser may elect, by written notice to be delivered to
Seller on or before the sooner of (i) the twentieth (20th) day after Purchaser's
receipt of such notice, or (ii) the Closing Date, to terminate this Agreement,
in which event the Xxxxxxx Money shall be returned to Purchaser, and the parties
hereto shall have no further obligations hereunder (except for obligations that
are expressly intended to survive the termination of this Agreement). If
Purchaser elects to close this transaction notwithstanding such taking or
condemnation, all condemnation awards received prior to Closing shall be
retained by the Company and deemed part of the Property to be transferred at
Closing or expended by Seller or the Company solely in connection with the
repair or replacement of the Property following such taking. As used herein, a
"material portion of the Property" means any part of the Property reasonably
required for the operation of the Property in the manner operated on the date
hereof; provided, that the cost of restoration thereof shall exceed $5,000,000
in the reasonable estimate of Seller except that any taking that would permit a
tenant to terminate its Lease shall in all cases be deemed a taking involving a
material portion of the Property. If any taking or threatened taking does not
involve a material portion of the Property, Purchaser shall be required to
proceed with the Closing, in which event all condemnation awards received prior
to Closing shall be retained by the Company and deemed part of the Property to
be transferred at Closing. For purposes of this Section 13, the term "Property"
shall be limited to and refer only to the Land and Improvements.
14. ADJUSTMENTS AND PRORATIONS.
Adjustments and prorations with respect to the Property shall be computed
and determined between the parties as of 12:01 a.m. on the Closing Date as
follows:
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(a) General real estate taxes, special assessments and personal
property taxes shall be prorated as of the Closing Date based on the then
current taxes (if known, based on final tax bills for such period, and if not
known, based on the most recent ascertainable taxes) and the special assessments
due and owing prior to Closing, and Seller or Purchaser shall receive a credit
at Closing, as appropriate. Without affecting the obligations set forth in this
Section 14, the prorations for real and personal property taxes shall be
equitably prorated on a "net" basis (i.e., adjusted for all tenants' liabilities
and payments of additional rent under the Leases for prorationate share of taxes
and assessments if any, for such items). If final taxes or special assessments
are not known as of the Closing, the parties agree to reprorate when such
amounts become known.
(b) All rents and other sums receivable from tenants of the Property,
which were earned and attributable to the period prior to the Closing Date, will
be retained by Seller to the extent that such rents have been collected on or
before the Closing Date. Rents earned and attributable to the period beginning
on the Closing Date and thereafter will be paid to the Company by the tenants,
or credited to Purchaser at Closing (if such rents are received by the Company
prior to the Closing Date). All payments from tenants, on account of rent or
otherwise, received by Seller on behalf of the Company after the Closing Date,
whether attributable to the period prior to or after the Closing Date, shall be
deemed to be held in trust by Seller for Purchaser and shall be promptly
delivered to Purchaser by Seller for application as provided in this Section 14.
All payments from tenants, on account of rent or otherwise, received after the
Closing Date by Purchaser on behalf of the Company and all amounts received from
Seller by Purchaser pursuant to the immediately preceding sentence, shall be
applied first to rent or other sums then due under the Leases attributable to
the month in which the Closing Date occurs, then to the period after the Closing
Date on account of rents earned and attributable to such period, and then to
Seller on account of rents which were earned and attributable to the period
prior to the Closing Date. Any customary out-of-pocket costs incurred by
Purchaser in collection of delinquent rentals shall be deducted by Purchaser
prior to the payment to Seller on account of delinquent rentals as provided
herein. Purchaser shall cause the Company to xxxx tenants for delinquent
rentals, but need not initiate legal proceedings. Seller shall have the right to
contact tenants to request payment of delinquent rentals after the Closing Date
and institute legal proceedings to collect such delinquent rentals, but shall
have no right to evict any tenant. Any such enforcement or collection efforts by
Seller shall be at Seller's sole expense.
(c) On the Closing Date, Seller shall either (i) deliver to the
Company if not already held by it, in cash, or (ii) receive as a credit against
the Purchase Price, an amount equal to all cash security deposits made by
tenants occupying the Property which were paid to the Company by such tenants
and which shall not have been applied by the Company or otherwise pursuant to
the Leases, together with interest owing thereon pursuant to the applicable
Lease, if any, and together with a listing (certified as true and correct by
Seller) of the tenants to which such deposits and interest are owing.
(d) All amounts payable, owing or incurred in connection with the
Property under the Contracts to be retained by the Company shall be prorated as
of the Closing Date.
Page 21
(e) All utility deposits, if any, may be withdrawn by and refunded to
Seller, and Purchaser shall make replacement deposits on behalf of the Company
for utilities as may be required by the respective utilities involved.
(f) All utility charges that are not separately metered to tenants
shall be prorated to the Closing Date and Seller shall obtain a final billing
therefor and pay any amounts owing therein for the period prior to the Closing
Date and Purchaser shall pay any amounts owing for the period on and after the
Closing Date. To the extent that utility bills cannot be handled in the
foregoing manner, they shall be prorated as of the Closing Date based on the
most recent bills available and reprorated when such final bills become known.
(g) Purchaser shall pay all leasing commissions and tenant improvement
costs payable with respect to Leases entered into after the date of this
Agreement in accordance with the terms of Section 20(b) of this Agreement. If
Seller has paid or caused the Company to pay such amounts prior to the Closing
Date, Purchaser shall reimburse Seller for such payments at Closing. Seller
shall pay all other leasing commissions and tenant improvement costs payable
with respect to all other Leases except those referenced in the preceding
sentence.
(h) Seller and Purchaser agree that as soon as reasonably possible
after the close of the calendar year of the Property, the parties shall
undertake a final master reconciliation of CAM, taxes and other pass-throughs
and additional rent (including without limitation, percentage rent) with respect
to the Leases and the Property. Such reconciliation shall be final. For purposes
hereof, Seller and Purchaser shall each prepare tenant reconciliations for their
respective applicable periods of ownership of the Interests. Purchaser shall
transmit such information to the tenants.
(i) Unless provided otherwise hereinabove, such other items as are
customarily prorated in a purchase and sale of the type contemplated hereunder
shall be prorated as of the Closing Date.
(j) All wages, salaries and benefits of the Retained Employees shall
be apportioned between Purchaser and Seller.
(k) Notwithstanding anything in this Section 14 to the contrary, if
any tenant under a Lease is obligated to pay any prorated item directly to the
entity imposing same, such portion of the prorated item shall not be apportioned
between Seller and Purchaser. If any item of income or expense set forth in this
Section 14 is subject to final adjustment after Closing, then Seller and
Purchaser shall make, and each shall be entitled to, an appropriate reproration
to each such item promptly when accurate information becomes available, but in
any event prior to one (1) year from the date of Closing. Any such reproration
shall be paid promptly in cash to the party entitled thereto.
(l) All insurance policies and Seller's property manager's management
agreement and listing agreement (if any) shall be terminated as of the Closing
Date and there shall be no proration with respect to these items.
Page 22
(m) Notwithstanding anything to the contrary contained herein, all
cash and cash equivalents maintained by the Company on the Closing Date shall be
the property of Seller, except as may be required to effect the adjustments and
prorations required by this Section 14, and except as required by Article 8.
(n) Each of the provisions of this Section 14 shall survive the
Closing until the later of (i) one (1) year from the date of Closing or (ii)
with respect to real estate taxes three (3) months after the issuance of the
final tax bills for the year in which the Closing occurs.
15. CLOSING COSTS.
Seller shall pay: (a) the costs of recording any releases required to clear
title to the Property pursuant to this Agreement, (b) Seller's attorneys' fees
and (c) one-half of all escrow and New York Style closing fees and costs.
Purchaser shall pay: (i) the costs of the Title Policy, including any
endorsements or deletions thereto, at the minimum promulgated rates, and other
costs related thereto, (ii) Purchaser's attorneys' fees, and (iii) one-half of
all escrow and New York Style closing fees and costs.
16. POSSESSION.
Possession of the Property shall be delivered to Purchaser at Closing, free
and clear of all liens and claims other than Permitted Exceptions and the rights
of the tenants identified on the Lease List, in the same condition as it exists
on the date of this Agreement, ordinary wear and tear excepted and except as
provided in Sections 12 and 13 hereof.
17. DEFAULT; ESCROW.
(a) If Seller defaults hereunder before Closing in any material
respect and fails to cure such default within thirty (30) days after written
notice of such default, or if the representations and warranties set forth in
this Agreement shall not be true and correct in all material respects as of the
Closing Date, Purchaser's sole remedy shall be to either (a) terminate this
Agreement and receive a return of the Xxxxxxx Money, in which event each of the
parties hereto shall be relieved of any further obligation to the other arising
by virtue of this Agreement (except for obligations that are expressly intended
to survive the termination of this Agreement), or (b) pursue specific
performance of this Agreement. In no event shall Purchaser be entitled to make
any claims against Seller nor shall Seller be liable under any representation,
warranty, certification, covenant, agreement, obligation or indemnity made
hereunder or under any of the Closing Documents or otherwise in connection with
the transactions contemplated herein if such claim is for an amount of less than
$100,000 in the aggregate for all such claims (the "Seller's Threshold
Liability"). Furthermore, in no event shall Seller be liable for any actual,
special, punitive, speculative or consequential damages, nor shall Seller's
liability under any representation, warranty, certification, covenant,
agreement, proration, reproration, obligation or indemnity made hereunder or
under any of the Closing Documents or otherwise in connection with the
transactions contemplated herein exceed $1,000,000 in the aggregate (the
"Seller's Maximum Liability"). None of Seller's partners, members, managers,
officers, agents or employees shall have any personal liability of any kind or
nature or by reason of any matter or thing whatsoever under, in connection with,
arising out of or in any way related to this Agreement, the Closing Documents or
Page 23
the transactions contemplated herein, and Purchaser waives for itself and for
anyone who may claim by, through or under Purchaser any and all rights to xxx or
recover on account of any such alleged personal liability. If Purchaser defaults
hereunder, this Agreement shall terminate and Seller shall retain the Xxxxxxx
Money as liquidated damages in full settlement of all claims against Purchaser
(with the exception of claims against Purchaser related to obligations which are
expressly stated to survive the termination of this Agreement). The parties
agree that the amount of actual damages that Seller would suffer as a result of
Purchaser's default would be extremely difficult to determine and have agreed,
after specific negotiation, that the amount of the Xxxxxxx Money is a reasonable
estimate of Seller's damages and is intended to constitute a fixed amount of
liquidated damages in lieu of other remedies available to Seller and is not
intended to constitute a penalty. Notwithstanding the foregoing, the liquidated
damages limitation set forth above shall have no application to any claim made
by Seller against Purchaser based on Purchaser's obligations under the Surviving
Obligations, and in the event Seller has a claim against Purchaser based on any
such Surviving Obligation, Seller shall be entitled to recover damages for such
claim in addition to retention of the Xxxxxxx Money. For example, if under
Section 10 of this Agreement Purchaser is obligated to indemnify Seller for
damages of Ten Thousand and 00/100 Dollars ($10,000) and Purchaser defaults
under this Agreement and if such default is not cured within the applicable cure
period, then Seller shall be entitled to receive Ten Thousand and 00/100 Dollars
($10,000) plus the entire Xxxxxxx Money plus amounts under Section 23(h) of this
Agreement.
(b) Notwithstanding anything to the contrary contained herein,
Purchaser shall promptly notify Seller in writing in the event that Purchaser
becomes aware of any breach of any of Seller's representations provided for in
this Agreement. Purchaser's failure to give such written notice shall in no
instance constitute a default by Purchaser under this Agreement but shall
instead only serve to bar Purchaser from raising such matter as a failure of a
condition precedent to Purchaser's obligation to close the transaction and shall
bar Purchaser from any right to terminate this Agreement because of such breach
by Seller of such representations. Purchaser's election to proceed with the
Closing shall result in Purchaser's waiver of any remedy resulting from the
incorrectness in such representation or warranty of which Purchaser shall have
been given written notice as to the falsity thereof before Closing. The
foregoing waiver shall survive the Closing.
18. NOTICES.
Any notice, demand, request or other communication which either party
hereto may be required or may desire to give under this Agreement shall be in
writing and shall be deemed to have been properly given if (p) hand delivered
(effective upon delivery), (q) sent by a nationally recognized overnight
delivery service (effective one (1) business day after delivery to such courier
for overnight service) or (r) sent by facsimile (effective upon receipt of
mechanical confirmation of transmission) provided that a confirmation copy of
such facsimile notice is sent by one of the other methods listed herein, in each
case, prepaid and addressed in accordance with Section 0 or Section 10 (as
applicable) of the Summary Statement or to such other or additional addresses as
either party might designate by written notice to the other party. Any notice
permitted or required to be delivered hereunder may be delivered by the attorney
for either party hereto.
Page 24
19. BROKERS.
Each of Seller and Purchaser represents and warrants to the other that it
has not dealt with any brokers, finders or agents with respect to the
transaction contemplated hereby other than the broker(s) set forth in Section 11
of the Summary Statement (collectively, "Brokers"). Seller shall be responsible
for all fees, commissions and other amounts due to Brokers as a result of the
transactions contemplated herein pursuant to the terms of a separate agreement.
Each party agrees to indemnify, defend and hold harmless the other party, its
successors, assigns and agents, from and against the payment of any commission,
compensation, loss, damages, costs, and expenses (including without limitation
reasonable attorneys' fees and costs) incurred in connection with, or arising
out of, claims for any broker's, agent's or finder's fees of any person claiming
by or through such party other than Brokers. The obligations of Seller and
Purchaser under this Section 19 shall survive the Closing and the termination of
this Agreement.
20. LEASING COSTS AND LEASE APPROVAL; EMPLOYEES
(a) Leasing Costs.
Except as provided in this Section 20, Seller agrees to pay or
discharge at or prior to Closing all leasing commissions, costs for tenant
improvements, legal fees and other costs and expenses (collectively, "Leasing
Costs") that are due and payable as of the Closing Date with respect to Leases
in force as of or prior to Closing; provided, however, that Seller shall have no
obligation to pay, and as of Closing, Purchaser shall assume the obligation to
pay (i) all Leasing Costs disclosed on Exhibit J, and (ii) all Leasing Costs
owed by Purchaser pursuant to the terms of Section 14(g) above.
(b) Lease Approval.
After the expiration of the Due Diligence Period, Seller shall not (i)
amend any Leases of any portion of the Land and Improvements, (ii) cancel any of
such Leases, or (iii) execute any new Leases without the prior written consent
of Purchaser (which consent shall not be unreasonably withheld). It shall not be
deemed reasonable for Purchaser to withhold consent to any of the foregoing
actions, to the extent any amendment or cancellation of a Lease is on
commercially reasonable terms, or any new lease provides for payment of rent at
the market rate in the general vicinity of the Property. After the Effective
Date, Seller shall submit to Purchaser a proposal ("Proposals") describing the
economic terms of any proposed lease or amendment, or cancellation of an
existing Lease, along with any financial information on the tenant in Seller's
possession. Purchaser shall provide its written approval or disapproval of such
Proposal within ten (10) days after receipt of any Proposal delivered after the
expiration of the Due Diligence Period. If Purchaser fails to provide written
notice of its approval or disapproval within such ten (10) day period, Purchaser
shall be deemed to have approved such Proposal. In the event Purchaser
disapproves any Proposal, Purchaser's notice of disapproval shall include the
reasons for such disapproval. In the event Purchaser approves or is deemed to
have approved any such Proposal, Purchaser shall be solely responsible for all
tenant improvement costs and leasing commissions payable with respect to such
Proposal. Seller shall have the right to execute the lease document evidencing a
Proposal approved or deemed approved by Purchaser provided the Seller's standard
lease form is utilized without material modifications, or with such material
Page 25
modification as shall be identified in any Proposal. If Purchaser unreasonably
disapproves any Proposal submitted to Purchaser after the expiration of the Due
Diligence Period, Purchaser shall pay Seller at Closing all rent and additional
rent that would otherwise have been payable to Seller through the Closing Date
pursuant to each disapproved Proposal, net of all brokerage commissions and
reasonable tenant improvement costs associated therewith.
(c) Employees.
From and after the Closing, Purchaser shall be responsible for all
wages, salaries and benefits of the Retained Employees and shall be bound by the
Collective Bargaining Agreement dated January 23, 2003, originally by and
between BFTG Property Management LLC as agent for Bayview Malls, LLC and the
International Brotherhood of Electrical Workers, AFL-CIA, Local Union 606, as
amended on January 23, 2004, January 23, 2005 and January 23, 2007 (the "Union
Contract"). Purchaser agrees to cause the Company to pay, perform, observe and
discharge all of the terms, covenant, conditions, agreements, and obligations
contained in the Union Contract arising or accruing from and after Closing Date,
and agrees to indemnify and hold Seller harmless from and against all claims,
liabilities, damages and expenses (including, without limitation, reasonable
attorney's fees and disbursements) which may be asserted against, imposed on or
incurred by Seller by reason of Purchaser's failure to comply with the
foregoing. Seller agrees to cause the Company to pay, perform, observe and
discharge all of the terms, covenant, conditions, agreements, and obligations
contained in the Union Contract arising or accruing prior to the Closing Date.
Purchaser and Seller each agree to indemnify and hold the other harmless from
and against all claims, liabilities, damages and expenses (including, without
limitation, reasonable attorney's fees and disbursements) which may be asserted
against, imposed on or incurred by the other by reason of Purchaser's or
Seller's failure to comply with the foregoing. The obligations set forth in this
Section 20(c) shall survive the Closing of this Agreement, and shall be subject
to the Seller's Maximum Liability set forth in Section 17(a) below. Any claim by
Purchaser with respect to Seller's obligations set forth in this Section 20(c)
shall not be subject to the Seller's Threshold Liability, provided that the
aggregate of all such claims exceed the amount of $50,000.
21. "AS IS" SALE.
EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
SET FORTH HEREIN AND IN ANY DOCUMENTS EXECUTED AND DELIVERED BY SELLER IN
CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, "ANCILLARY DOCUMENTS"), PURCHASER
ACKNOWLEDGES AND AGREES THAT IT WILL BE PURCHASING THE INTERESTS BASED SOLELY
UPON ITS INSPECTIONS AND INVESTIGATIONS OF THE LAND AND IMPROVEMENTS, AND THAT
PURCHASER WILL BE ACCEPTING THE LAND AND IMPROVEMENTS "AS IS" AND "WITH ALL
FAULTS", BASED UPON THE CONDITION OF THE LAND AND IMPROVEMENTS AS OF THE DATE OF
THIS AGREEMENT, ORDINARY WEAR AND TEAR AND LOSS BY FIRE OR OTHER CASUALTY OR
CONDEMNATION EXCEPTED (SUBJECT TO SECTIONS 12 AND 13) AND THAT SELLER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
Page 26
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE LAND AND
IMPROVEMENTS. WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES THAT,
EXCEPT AS MAY OTHERWISE BE SPECIFICALLY SET FORTH ELSEWHERE IN THIS AGREEMENT OR
ANY ANCILLARY DOCUMENT, NEITHER SELLER NOR ITS CONSULTANTS, BROKERS OR AGENTS
HAS MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND UPON WHICH PURCHASER IS
RELYING AS TO ANY MATTERS CONCERNING THE LAND AND IMPROVEMENTS, INCLUDING BUT
NOT LIMITED TO: (I) THE CONDITION OF THE LAND OR ANY IMPROVEMENTS COMPRISING THE
LAND AND IMPROVEMENTS; (II) THE EXISTENCE OR NON-EXISTENCE OF ANY POLLUTANT,
TOXIC WASTE AND/OR ANY HAZARDOUS MATERIALS OR SUBSTANCES; (III) ECONOMIC
PROJECTIONS OR MARKET STUDIES CONCERNING THE LAND AND IMPROVEMENTS, OR THE
INCOME TO BE DERIVED FROM THE LAND AND IMPROVEMENTS; (IV) ANY DEVELOPMENT
RIGHTS, TAXES, BONDS, COVENANTS, CONDITIONS AND RESTRICTIONS AFFECTING THE LAND
AND IMPROVEMENTS; (V) THE NATURE AND EXTENT OF ANY RIGHT OF WAY, LEASE, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION OR OTHER TITLE MATTER; (VI) WATER OR WATER
RIGHTS, TOPOGRAPHY, GEOLOGY, DRAINAGE, SOIL OR SUBSOIL OF THE LAND AND
IMPROVEMENTS; (VII) THE UTILITIES SERVING THE LAND AND IMPROVEMENTS; (VIII) THE
SUITABILITY OF THE LAND AND IMPROVEMENTS FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; OR (IX) THE COMPLIANCE OF THE LAND
AND IMPROVEMENTS WITH ANY ZONING, ENVIRONMENTAL, BUILDING OR OTHER LAWS, RULES
OR REGULATIONS AFFECTING THE LAND AND IMPROVEMENTS. SELLER MAKES NO
REPRESENTATION OR WARRANTY THAT THE LAND AND IMPROVEMENTS COMPLIES WITH THE
AMERICANS WITH DISABILITIES ACT OR ANY FIRE CODE OR BUILDING CODE, EXCEPT WITH
RESPECT TO REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT OR IN ANY
ANCILLARY DOCUMENT. PURCHASER HEREBY RELEASES SELLER FROM ANY AND ALL LIABILITY
IN CONNECTION WITH ANY CLAIMS THAT PURCHASER MAY HAVE AGAINST SELLER, AND
PURCHASER HEREBY AGREES NOT TO ASSERT ANY CLAIMS FOR CONTRIBUTION, COST RECOVERY
OR OTHERWISE, AGAINST SELLER RELATING DIRECTLY OR INDIRECTLY TO THE EXISTENCE OF
ASBESTOS OR HAZARDOUS MATERIALS OR SUBSTANCES ON, OR ENVIRONMENTAL CONDITIONS
OF, THE LAND AND IMPROVEMENTS, WHETHER KNOWN OR UNKNOWN. As used herein, the
terms "Hazardous Substances" and "HAZARDOUS MATERIALS OR SUBSTANCES" mean (i)
hazardous wastes, hazardous substances, hazardous constituents, toxic substances
or related materials, whether solids, liquids or gases, including but not
limited to substances defined as "hazardous wastes," "hazardous substances,"
"toxic substances," "pollutants," "contaminants," "radioactive materials," or
other similar designations in, or otherwise subject to regulation under, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. ss.9601 et seq.; the Toxic Substance Control Act, 15 U.S.C.
ss.2601 et seq.; The Hazardous Materials Transportation Act, 49 U.S.C. ss.1802;
the Resource Conservation and Recovery Act, 42 U.S.C. ss.9601. et seq.; the
Clean Water Act, 33 U.S.C. ss.1251; the Safe Drinking Water Act, 42 U.S.C.
ss.300f et seq.; the Clean Air Act, 42 U.S.C. ss.7401 et seq.; and in any
permits, licenses, approvals, plans, rules, regulations or ordinances adopted,
Page 27
or other criteria and guidelines promulgated pursuant to the preceding laws or
other similar federal, state or local laws, regulations, rules or ordinance now
or hereafter in effect relating to environmental matters (collectively,
"Environmental Laws"); and (ii) any other substances, constituents or wastes
subject to any applicable federal, state or local law, regulation or ordinance,
including any Environmental Law, now or hereafter in effect, including but not
limited to (A) petroleum, (B) refined petroleum products, (C) waste oil, (D)
waste aviation or motor vehicle fuel and (E) asbestos. Purchaser acknowledges
that having been given the opportunity to inspect the Land and Improvements,
Purchaser is relying solely on its own investigation of the Land and
Improvements and not on any information provided or to be provided by Seller,
except for any representations and warranties made in this Agreement or in any
Ancillary Document. Purchaser further acknowledges that the information provided
and to be provided with respect to the Land and Improvements was obtained from a
variety of sources, and that Seller (x) has not made any independent
investigation or verification of such information and (y) makes no
representations as to the accuracy or completeness of such information, except
as provided herein or in any Ancillary Document. The provisions of this Section
21 shall survive the Closing Date.
Purchaser shall not, without first obtaining the prior written consent of
Seller, request that any governmental authority inspect or otherwise evaluate
the condition of the Land and Improvements in respect of the existence of any
violations of law or municipal ordinances, orders or requirements issued by the
departments of building, fire, labor, health or other federal, state, county,
municipal or other departments and governmental agencies having jurisdiction
against or affecting the Property, and any outstanding work orders, whether any
of the foregoing are outstanding as of the Date of Agreement (each, an "Existing
Violation") or noticed after the Date of Agreement (each, a "New Violation";
together with the Existing Violations, the "Violations"). Purchaser acknowledges
that Seller shall have no cure, restoration, repair or other obligation or
liability of any kind or nature with respect to the Violations.
Purchaser shall not, without first obtaining the prior written consent of
Seller, request that any governmental authority inspect or otherwise evaluate
the condition of the Property in respect of the existence of Violations,
provided that the foregoing shall not prohibit Purchaser from making customary
inquiries of governmental authorities as to whether Violations have been noticed
by any such governmental authorities.
22. ASSIGNMENT.
Purchaser shall neither assign its rights nor delegate its obligations
hereunder without obtaining Seller's prior written consent, which consent may be
granted or withheld in Seller's sole discretion. Notwithstanding anything to the
contrary contained in this Section 22, Purchaser may, following the expiration
of the Due Diligence Period, designate an Affiliate (as hereinafter defined) to
which the Interests may be conveyed in accordance with this Agreement, provided
that concurrently with any such assignment,, such Affiliate assumes, in writing,
those obligations imposed under this Agreement upon Purchaser which survive the
Closing, and provides a fully executed counterpart thereof to Seller. Any
purported or attempted assignment or delegation (other than as expressly
permitted above) without obtaining Seller's prior written consent shall be void
and of no effect. For purposes of this Section 22, the capitalized term
"Affiliate" means any corporation, partnership, joint venture or limited
Page 28
liability company or trust in which (i) Purchaser, OMERS Realty Corporation, or
any of their Affiliates, principals or their family members directly or
indirectly own more than fifty percent (50%) of the beneficial interests therein
and (ii) Purchaser possesses the power to direct the day to day management
authority of the entity and (iii) which entity is acceptable to Lender in
connection with obtaining its Consent.
23. MISCELLANEOUS.
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to, be
obligatory upon and inure to the benefit of only the parties hereto and the
respective heirs, legatees, successors and permitted assigns of the parties
hereto.
(c) Except as provided herein, this Agreement contains the entire
agreement between the parties relating to the transactions contemplated hereby.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State where the Land is located.
(e) If any of the provisions of this Agreement or the application
thereof to any persons or circumstances shall, to any extent, be deemed invalid
or unenforceable, the remainder of this Agreement and the application of such
provisions to persons or circumstances other than those as to whom or which it
is held invalid or unenforceable shall not be affected thereby.
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the
same instrument.
(g) From and after the date hereof, except as provided in Section
23(m) below, Purchaser shall not prepare and issue any releases of information
relating to the sale of the Interests without Seller's consent, and any
inquiries regarding the transaction contemplated hereby shall be responded to by
Purchaser only after consultation with Seller and with Seller's approval. The
provisions of this Section 23(g) shall survive the Closing or earlier
termination of this Agreement.
(h) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation attorneys'
fees and disbursements and court costs. The obligations under this Section 23(h)
shall survive the termination of this Agreement.
(i) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the Agreement may
have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
(j) Notwithstanding anything to the contrary contained herein, under
no circumstances shall Purchaser be entitled to communicate with the Tenants at
the Property without obtaining Seller's prior written consent which may be
withheld or conditioned by Seller in Seller's sole discretion.
Page 29
(k) If, under the terms of this Agreement and the calculation of the
time periods provided for herein, the Closing Date or any other date to be
determined under this Agreement should fall on Saturday, a Sunday, a legal
holiday (Federal, New York or Florida), a religious holiday observed by the
followers of any major religion practiced in New York, New York on the date
hereof, or other date on which banks located in New York, New York, are not open
for business, then such date shall be extended to the next business day.
(l) A facsimile, scanned and e-mailed copy, or photocopy signature on
this Agreement, any amendment hereto, any Closing Document or any notice
delivered hereunder shall have the same legal effect as an original signature,
provided that an original or final copy shall be delivered thereafter; and
further provided that nothing herein shall excuse either party from its
obligation to deliver an original signature on any document that is intended to
be recorded.
(m) The parties shall keep the terms of this Agreement confidential
(and Purchaser shall keep information it learns about the Property and/or the
Company confidential) and shall not disclose such terms and, in the case of
Purchaser, information, to any other parties without the other party's prior
written consent, which consent shall be in each party's sole discretion;
provided, however, that each party may, without obtaining such prior written
consent, make such disclosures as may be required by applicable laws or
agreements by which such party is bound, and to each such party's managers,
members, officers, lenders, employees, attorneys, accountants, appraisers,
insurance advisors, consultants and similar third party professionals.
(n) The parties hereto agree that neither this Agreement nor any
memorandum or notice hereof shall be recorded, and Purchaser agrees not to file
any lis pendens or other instrument against the Land in connection herewith. In
furtherance of the foregoing, Purchaser (i) acknowledges that the filing of a
lis pendens or other evidence of Purchaser's rights or the existence of this
Agreement against the Land , could cause significant monetary and other damages
to Seller and the Company and (ii) hereby indemnifies Seller and the Company and
their agents, employees, partners and affiliates from and against any and all
liabilities, damages, losses, costs or expenses (including, without limitation,
reasonable attorneys' fees and costs incurred in the enforcement of the
foregoing indemnification obligation) arising out of the breach by Purchaser of
any of Purchaser's obligations under this Section 23(n) and (iii) agrees that a
breach of this provision by Purchaser shall immediately entitle Seller to
terminate this Agreement and keep the Xxxxxxx Money as liquidated damages. The
filing of this Agreement with any court in connection with any litigation
hereunder shall not be deemed a breach of this Section 23(n). The provisions of
this Section 23(n) shall survive the termination of this Agreement.
(o) Either party shall be permitted to transfer the Interests (or
interests in the Property) as part of a tax-free like-kind exchange (the
"Exchange") under Section 1031 of the Internal Revenue Code (the "Code").
Accordingly, each party shall cooperate with each other in structuring the
transfer of the Interests as a tax-free like-kind exchange (forward and reverse
type exchanges included); Purchaser's or Seller's cooperation shall include, but
not be limited to, permitting the assignment by of rights under this Agreement
Page 30
to a qualified intermediary (as defined in Treasury Regulation Section 1.1031
(k)-1(g)(4)(iii)), and/or entering into an agreement with a qualified
intermediary for the acquisition of the Interests. Notwithstanding the
foregoing, the party entering into the Exchange shall fully reimburse,
indemnify, defend and hold harmless the other party for all costs and expenses
it incurs in connection with the Exchange, and nothing in this Section 23(o)
shall permit either party to extend the Closing Date, require either party to
take title to any other property, or to incur any additional expenses or
liability. The provisions of this Section 23(o) shall survive Closing.
(p) PURCHASER AND SELLER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS AGREEMENT OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY PURCHASER AND SELLER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. SELLER OR PURCHASER, AS APPLICABLE, IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY PURCHASER OR SELLER, AS APPLICABLE. THE PROVISIONS OF
THIS SECTION 23(p) SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS
AGREEMENT.
(q) Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed trustee,
partner, affiliate, subsidiary, beneficiary, principal, member, agent, managing
entity, shareholder, director, officer, or employee of Seller (whether direct or
indirect), including, without limitation, their attorneys, accountants,
consultants, engineers, brokers, and advisors (collectively, "Seller's
Affiliates"), arising out of or in connection with this Agreement or the
transactions contemplated hereby and further agrees not to xxx or otherwise seek
to enforce any personal obligation against any of Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby. The provisions of this Section 23(q) shall
survive the Closing.
(r) Purchaser and Seller each represent and warrant to their
respective best knowledge that as of the date hereof and as of the Closing Date,
the following statements are and shall be true, correct and complete without
material misrepresentation or omission: (i) such party is not a Prohibited
Person (as defined below), (ii) such party is in compliance with the
Anti-Terrorism Laws (as defined below), (iii) such party does not conduct any
business or engage in any transaction or dealing with any Prohibited Person, or
deal in, or otherwise engage in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order 13224 (as defined
below), and (iv) such party has established policies and procedures designed to
prevent and detect money laundering, including processes to meet all applicable
anti-money laundering requirements of the USA Patriot Act (as defined below).
For purposes of the foregoing representations and warranties: (i)
"Anti-Terrorism Laws" are any laws related to terrorism or money laundering,
including Executive Order 13224 and the USA Patriot Act, and any regulations
promulgated under either of them, (ii) "Executive Order 13224" is defined as
Page 31
Executive Order Number 13224 on Terrorism Financing, effective September 24,
2001, (iii) "Prohibited Person" is defined as (a) a person or entity subject to
the provisions of Executive Order 13224; (b) a person or entity owned or
controlled by, or acting for or on behalf of, an entity that is subject to the
provisions of Executive Order 13224; (c) a person or entity with whom Purchaser
or Seller is prohibited from dealing by any of the Anti-Terrorism Laws; (d) a
person or entity that commits, threatens or conspires to commit or supports
"terrorism" as defined in Executive Order 13224; (e) a person or entity that is
named as a "specially designated national and blocked person" on the most
current list published by the U.S. Treasury Department's Office of Foreign
Assets Control; or (f) a person or entity who is affiliated with a person or
entity described in clauses (a) through (e) immediately above, and (g) "USA
Patriot Act" is defined as the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R.
3162, Public Law 107-56, as may be amended from time to time.
(s) Notwithstanding anything to the contrary contained herein, no
provision of this Agreement shall survive the Closing unless any such survival
shall be specifically provided for herein.
24. TAXES.
The Purchaser and the Seller shall work cooperatively together in an effort
to cause the Company's K-1 statements and any other portions of its Tax Returns
for the year in which the Closing Date occurs to be filed and adjusted to
reflect that the Company was owned by the Seller prior to the Closing Date and
by the Purchaser thereafter, with all liabilities for Taxes accruing to the
Seller and the Purchaser in complete accord therewith. The obligations contained
in this Section 24 shall survive the Closing of this Agreement for a period of
three (3) years and shall not be subject to the Seller's Threshold Liability or
the Seller's Maximum Liability.
[Signature Page Follows]
Page 32
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SELLER: THOR URBAN OPERATING FUND, L.P.,
a Delaware limited partnership
By: Thor Operating Fund L.L.C., a Delaware
limited liability company, its sole
general partner
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx, sole member
PURCHASER: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, sole general
partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
& Chief Investment Officer
Date Offered: July 19, 2007
Date Accepted: July 19, 2007
Page 33
Schedule 3
Loan Documents
1. Loan Closing Statement
2. Summary of Loan Agreement
3. Loan Agreement
4. Promissory Note ($57,000,000.00)
5. Mortgage and Security Agreement
6. Assignment of Leases and Rents
7. Guaranty of Recourse Obligations
8. Environmental Indemnity Agreement
9. Cash Management Agreement
10. Restricted Account Agreement
11. Conditional Assignment of Management Agreement
12. Assignment of Escrow Agreement
13. Borrower's Certification
14. Xxxxxxx & Masyr, LLP New York Legal Opinion
15. Xxxxxxx & Masyr, LLP Non-Consolidation Legal Opinion
16. Hunton & Xxxxxxxx LLP Legal Opinion
17. Xxxxxxxx, Xxxxxx & Finger Legal Opinions with respect to Xxxx Xxxxxxx
Square LLC
18. Xxxxxxxx, Xxxxxx & Finger Legal Opinions with respect to Thor MS, LLC
19. Borrower's Closing Certificate
20. Authorization to Wire Funds
21. Post-Closing Letter
22. UCC Financing Statements
Schedule 6
Permitted Exceptions
(a) zoning regulations and ordinances which are not violated by existing
structures or the present use of the Property;
(b) financing statements, chattel mortgages and liens on personalty filed
more than five (5) years prior to the Closing Date and not renewed, or filed
against property or equipment no longer located on the Property, provided the
Title Company will provide affirmative insurance or omit same from the Title
Policy issued to Purchaser;
(c) rights of utility companies to lay, maintain, install and repair pipes,
lines, poles, conduits, cable boxes, and related equipment on, over and under
the Property provided that such rights do not materially adversely affect the
present use of the Property;
(d) any state of facts that the survey made by Xxxxxxxx & Associates Land
Surveying, Inc., last revised March 24, 2005, may disclose;
(e) possible variance between tax diagram and record description of the
Property;
(f) Violations (defined in Section 21);
(g) consents by the Seller or any former owner of the Land for the erection
of any structure or structures on, under or above any street or streets on which
the Property may abut, as evidenced by a written instrument of record or to
Purchaser's actual or constructive knowledge by visual examination of the
Property, the survey or otherwise;
(h) unpaid installments of assessments not due and payable on or before the
Closing Date subject to adjustment as hereinafter provided;
(i) real estate taxes, unfixed or unpaid water charges and sewer rents and
vault taxes, if any, whether or not same are liens and any and all assessments,
levies or installments thereof becoming liens or payable subsequent to the date
hereof not yet due and payable as of the date of Closing subject to adjustment
as provided in the Agreement;
(j) any exception or matter contained in the Title Commitment and not
raised by Purchaser in its Exception Notice; and
(k) exceptions or matters described on Schedule 6.1 attached hereto.
Schedule 6.1
Additional Title Exceptions
Schedule 8(a)(v)
Retained Employees
Xxxxx Xxxxxxxx, Ops Engineer on a full time basis, union member.
Xxxxx Xxxx, Facility Maintenance on a full time basis, union member.
Xxxxxxx Xxxxxx, Facility Maintenance on a full time basis, union member.
Xxxxxxx Xxxxxxx, Ops Engineer on a full time basis, union member.
Schedule 8(a)(viii)
Organizational Documents
Xxxx Xxxxxxx Square LLC
-----------------------
23. Amended and Restated Operating Agreement
24. Certificate of Formation
25. Delaware Good Standing Certificate
26. Florida Good Standing Certificate
27. Written Consent of the Sole Member
28. Written Consent of the General Partner of Thor Urban Operating Fund, L.P.
Thor MS, LLC
------------
29. Amended and Restated Operating Agreement
30. Certificate of Formation
31. Delaware Good Standing Certificate
32. Florida Good Standing Certificate
33. Written Consent of the Sole Member
34. Written Consent of the General Partner of Thor Urban Operating Fund, L.P.
Schedule 8(a)(xi)
Financial Statements
Schedule 8(a)(xii)
Suits, Actions, Claims or Proceedings
Schedule 8(a)(xiii)
Terminated Employees
None
Schedule 8(a)(xiv)
Notice of Violations
- Fire alarm violation to Inferno Sports Bar; fine of $50,000 currently being
appealed.
- Landlord in violation of JC Penney fire alarm provision.
Schedule 8(a)(xv)
Tenant Defaults
Schedule 11(a)(v)
Form of Title Affidavit
GENERAL PURPOSE
AFFIDAVIT
STATE OF ______________:
:ss.
COUNTY OF _____________:
BEFORE ME, the undersigned authority duly authorized to administer oaths
and take acknowledgments, personally appeared __________________ ("Affiants"),
who upon being first duly sworn, on oath, depose and say:
1. That Affiants is the _____________________ of __________________________
("Seller"), which is the fee simple owner of the following described real
property located in _______________ County, Florida ("Property"), to wit:
(FOR LEGAL DESCRIPTION, SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART
HEREOF BY SPECIFIC REFERENCE)
2. (a) That Seller has full, complete and undisputed possession of the
Property and that there are no leases, options, interest or demands held
thereon, and
(b) That no individual, entity or Governmental Authority has any claim
against the Property under any applicable laws and that no individual, entity or
Governmental Authority is either in possession of the Property or has a
possessory interest or claim in the Property, other than Affiants, or
(c) That the property as described in Exhibit "A" is, at present, in
use as a ______________ and that the only parties in possession of the premises
are (apartment tenants in possession under unrecorded tenant leases) or
(Shopping Center lessees under unrecorded leases as shown on the attached ([rent
roll] or [Exhibit ___]) and that none of said leases contain any "Option to
Purchase" or "Rights of First Refusal."
3. That the Property is free and clear of all liens, taxes, special
assessments, municipal or county liens, encumbrances and claims of every kind,
nature and description whatsoever, except for real estate taxes for the year,
which are not yet due and payable, and except for those permitted encumbrances
shown on Exhibit "B."
4. That there are no easements or claims of easements of any type or nature
whatsoever not shown by the public records.
5. (a) That there have been no improvements, alterations or repairs to the
Property for which the costs thereof remain unpaid.
or
(b) All labor, material and/or services, if any, were furnished,
completed, and in place not less than 90 days prior to the date of this
affidavit and all charges for any labor, material, and/or services whenever
furnished have been paid in full, and the undersigned has not received notice
from any laborer, materialman, or subcontractor, pursuant to the provisions of
F.S.A. Chapter 713.06.
NOTE: The undersigned is requested to delete either paragraph 5(a) or
paragraph 5(b) as only one statement will be correct.
6. That there are no construction, mechanic's, materialmen's or laborer's
liens against the Property.
7. That Affiants know of no violations of Municipal Ordinances pertaining
to the Property.
8. That there are no Federal or State tax claims, liens or penalties
assessed against Affiants, and there are no judgments against Affiants
unsatisfied of record in the courts of any State or of the United States of
America.
9. Seller has not executed any instruments or taken any actions which would
create an interest in or affect the title to the Property or any portion thereof
which remain unrecorded as of the date hereof, and will not execute any such
instruments or take any such actions prior to the [delivery/recording] of the
instrument to be insured pursuant to Chicago Title Insurance Company's
Commitment No. ________________.
The foregoing notwithstanding, it is hereby covenanted and agreed and
expressly made a part of this agreement that the liability of the undersigned
hereunder, as to this paragraph 9, shall cease and terminate at such time as the
Company shall have completed all of its various title searches covering the
lands referenced in Exhibit "A" through the date of recording of the documents
required to establish the interest(s) to be insured, required for the issuance
of the above policy; provided, however, that 1) no rights, interests, liens,
claims, encumbrances, or defects in title, or any rights existing by reason of
or in consequence thereof, or growing out of, are disclosed by the said various
title searches and examination; 2) there is then pending no suit, action, or
proceeding either direct or collateral, to assert, establish, or enforce the
said mentioned rights, interests, liens, claims, encumbrances, or defects in
title, or any rights existing or arising by reason of or in consequence thereof
or growing out thereof; 3) that no judgment, order, or decree rendered in any
such proceeding remains unsatisfied; and 4) that the undersigned is not in
default in the performance of any of the terms, covenants and conditions hereof.
10. Section 1445 of the Internal Revenue Code provides that the purchaser
of a U.S. real property interest must withhold tax if the seller is a foreign
person or a foreign corporation, partnership, trust or estate. Affiants, to
inform Purchaser that withholding of tax is not required upon disposition of the
referenced U.S. property interest, hereby certifies as to the following:
(a) That the seller is not a foreign person, foreign trust or estate
for the purposes of U.S. income taxation; and
(b) That the Social Security Number or Tax Payer Id number for
_______________________ is ______________________; and
(c) That Affiants understand that this certification may be disclosed
to the Internal Revenue Service by Purchaser, and that any false statement made
herein may be punishable by fine, imprisonment, or both.
11. That this Affidavit is given for the express purpose of inducing
_________________ to purchase the Property and to induce CHICAGO TITLE INSURANCE
COMPANY to issue an Owner's Policy of Title Insurance, and Affiants know and
acknowledge that this Affidavit is being relied upon for all of the facts
contained herein.
12. That this Affidavit is made and given by Affiants with full knowledge
of applicable Florida laws regarding sworn Affidavits and liabilities resulting
from false statements and misrepresentations therein.
The Affiants hereby request that Chicago Title Insurance Company issue its
Policy of title insurance upon said real estate described in Exhibit "A" without
General Exceptions I, 4, and 5, shown in the Commitment referenced above. We do
hereby jointly and severally agree to indemnify and hold Chicago Title Insurance
Company harmless of and from all loss, cost, damage and expense of every kind,
including attorneys' fees, which Chicago Title Insurance Company shall sustain
or become liable for under its policy now to be issued on account of reliance on
the statements made herein, including but not limited to any matters that may be
recorded between the effective date of the Commitment above and the time of the
recording of the same instruments described in said Commitment.
IN WITNESS WHEREOF, we have set our hands and seals unto this instrument
this ______ day of ___________________, 20____.
____________________________________
Typed Name:_________________________
Subscribed and sworn before me this ______ day of ____________________,
20____, by _____________________________. He/She is personally known to me or
has produced _____________________________ as identification.
(Notary Seal)
____________________________________
Typed Name:_________________________
Title or Rank: Notary Public of Florida
Commission Number:__________________
EXHIBIT A
---------
Legal Description of Land
-------------------------
[See Attached]
Exhibit "A"
Real Property
A portion of Section 36, Township24 South, Range 36 East, Brevard County,
Florida, being more particularly described as follows:
Commence at the West 1/4 corner of said Section 36; thence North 89 degrees
29'32" East along the north line of the Cocoa Beach Area Chamber of Commerce
Parcel and its westerly extension a distance of 520.00 feet to the Northeast
corner of said Cocoa Beach Area Chamber of Commerce Parcel, said point being the
POINT OF BEGINNING of the following described parcel; thence North 00 degrees
33'31" West along the west line of the East 800 feet of the West half (W 1/2) of
the Northwest Quarter (NW 1/4) of said Section36 a distance of 529.01 feet to a
rebar; thence North 88 degrees 44'15" East along the north line of the South
529.16 feet of the East 800 feet of said W 1/2 of NW 1/4 a distance of 550.28
feet to a nail in pavement on the south line of the Financial Center Parcel;
thence North 73 degrees 19'14" East along said Financial Center Parcel a
distance of 290.17 feet to a nail in pavement; thence North 00 degrees 33'32"
West along said Financial Center Parcel a distance of 372.13 feet to a nail in
pavement on the southerly right-of-way line of Xxxxx Xxxx 000 (Xxxx Xxxxxxx
Island Causeway)(200 foot right-of -way); thence North 88 degrees 42"06" East
along said right-of-way line a distance of 1312.91 feet to a rebar marking the
intersection of said right-of-way line with the westerly right-of-way line of
Xxxxx Creek Parkway (150 foot right-of-way); thence South 02 degrees 46'45" East
along said right-of-way line of Xxxxx Creek Parkway a distance of 1.94 feet to a
rebar marking the point of curvature of a circular curve to the left, having a
radius of 3339.77 feet and a central angle of 11 degrees 13'44"; thence along
said curved right-of-way line an arc distance of 654.53 feet (Chord: South 08
degrees 23'37" East, 653.48 feet) to a rebar marking the point of reverse
curvature of a circular curve to the right, having a radius of 3189.77 feet and
a central angle of 11 degrees 13'44"; thence along said curved right-of-way line
an arc distance of 625.13 feet (Chord: South 08 degrees 23'37" East, 624.13
feet) to a rebar marking the point of tangency of said curve; thence South 02
degrees 46'45" East along said right-of-way line a distance of 551.26 feet to a
rebar marking the intersection of said right-of-way line with the northerly
right-of-way line of Xxxxxxxxxxx Road (60 foot right-of-way); thence South 89
degrees 30'46" West along said right-of-way line a distance of 1538.11 feet to a
nail in pavement marking the point of curvature of a circular curve to the
right, having a radius of 542.96 feet and a central angle of 45 degrees 02'51";
thence along said curved right-of-way line an arc distance of 426.89 feet
(Chord: North 67 degrees 57'49" West, 415.98 feet) to a rebar marking the point
of tangency of said curve; thence North 45 degrees 26'23" West along said
right-of-way line a distance of 588.46 feet to a rebar marking the southeast
corner of said Cocoa Beach Area Chamber of Commerce Parcel; thence North 00
degrees 33'31" West along the east line of said Cocoa Beach Area Chamber of
Commerce Parcel a distance of 234.35 feet to the POINT OF BEGINNING.
LESS AND EXCEPT a portion of the above-described parcel (the Burdines parcel)
being more particularly described as follows:
Commence at a rebar marking the intersection of the westerly right-of-way line
of Xxxxx Creek Parkway (150 foot right-of-way) with the southerly right-of-way
line of Xxxxx Xxxx 000 (Xxxx Xxxxxxx Xxxxxx Xxxxxxxx) (200 foot right-of-way);
thence South 88 degrees 42'06" West along said right-of-way line of Xxxxx Xxxx
000 a distance of 886.87 feet to the intersection of said right-of-way line with
the northerly extension of the east line of said Burdines Parcel; thence South
00 degrees 3331" East along said northerly extension a distance of 405.87 feet
to a nail in pavement marking the Northeast corner and POINT OF BEGINNING of the
following described parcel; thence South 00 degrees 33'31" East a distance of
300.00 feet to a nail in pavement; thence South 89 degrees 26'29" West a
distance of 420.00 feet to a rebar; thence North 00 degrees 33'31" West a
distance of 300.00 feet to a nail in pavement; thence North 89 degrees 26'29"
East a distance of 420.00 feet to the POINT OF BEGINNING.
AND ALSO LESS AND EXCEPT a portion of the above-described parcel (the Sears
Parcel) being more particularly described as follows:
Commence at the West 1/4 corner of said Section 36; thence North 89 degrees
29'32" East along the north line of the Cocoa Beach Area Chamber of Commerce
Parcel and its westerly extension a distance of 520.00 feet to the Northeast
corner of said Cocoa Beach Area Chamber of Commerce Parcel; thence continue
North 89 degrees 29'32" East a distance of 59.99 feet to the POINT OF BEGINNING
of the following described parcel; thence North 00 degrees 33'31" West a
distance of 445.42 feet to a nail in pavement marking the point of curvature of
a circular curve to the right, having a radius of 50.00 feet and a central angle
of 89 degrees 16'28"; thence along said curve an arc distance of 77.91 feet
(chord: North 44 degrees 05'22" East, 70.26 feet) to a nail in pavement marking
the point of tangency of said curve; thence North 88 degrees 44' 15" East a
distance of 427.27 feet to a nail in pavement; thence North 74 degrees 01'36"
East a distance of 137.83 feet to a nail in pavement; thence South 00 degrees
33'31" East a distance of 204.16 feet to a nail in pavement; thence South 07
degrees 00'32" West a distance of 47.34 feet to a nail in pavement; thence South
00 degrees 33'31" East a distance of 426.96 feet to a nail in pavement; thence
South 88 degrees 44'15" West a distance of 603.29 feet to a nail in pavement;
thence North 00 degrees 33'31" West a distance of 148.17 feet to the POINT OF
BEGINNING.
AND ALSO LESS AND EXCEPT a portion of the above-described parcel (the Dillard's
Expansion Parcel) being more particularly described as follows:
A parcel of land lying in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 36 East, Brevard
County, Florida; said subject parcel being more fully described as follows:
Commence at the intersection of the West right-of-way line of Xxxxx Creek
Parkway, a 150.00 foot wide right-of-way as recorded in O.R. Book 950, page 0123
with the North right-of-way line of Xxxxxxxxxxx Road, a 60.00 foot wide
right-of-way as recorded in O.R. Book 1103, page 0170 and O.R. Book 1103, page
0172, all of the Brevard County Public Records and shown on Sheet 14 of 15 of
the Xxxxx Xxxx 000 Xxxxx-xx-Xxx Xxx,
Xxxxxxx 00000-0000; thence South 89 degrees 59' 25" West, along said North
right-of-way line, a distance of 79750 feet to the Point-of-Beginning of the
lands herein described; thence continue South 89 degrees 59' 25" West, along
said North right-of-way line, a distance of 75.00 feet; thence departing said
North right-of-way line, North 00 degrees 00' 35" West, a distance of 126.67
feet; thence South 89 degrees 59' 25" West, parallel with said North
right-of-way line, a distance of 299.21 feet; thence North 00 degrees 00' 35"
West, a distance of 151.34 feet; thence North 89 degrees 54' 36" East, a
distance of 35.50 feet; thence North 00 degrees 05' 24" West, a distance of
322.35 feet; thence North 89 degrees 51' 31" East, a distance of 156.66 feet;
thence North 00 degrees 08' 29" West, a distance of 36.56 feet; thence North 89
degrees 51' 31" East, a distance of 52.47 feet to the exterior face of the West
wall of the "Dillard's" (a.k.a. "Xxxx'x") store; thence along said exterior face
of the West wall the following eleven (11) courses to wit: North 00 degrees 00'
17" West, a distance of 1.19 feet; South 89 degrees 59' 43" West, a distance of
0.33 feet; North 00 degrees 00' 17" West, a distance of 1.33 feet; North 89
degrees 59' 43" East, a distance of 0.45 feet; North 00 degrees 00' 17" West, a
distance of 5.68 feel; South 89 degrees 59' 43" West, a distance of 0.48 feet;
North 00 degrees 00' 17" West, a distance of 1.39 feet; North 89 degrees 59' 43"
East, a distance of 0.36 feet; North 00 degrees 00' 17" West, a distance of 1.50
feet; South 89 degrees 59' 43" West, a distance of 0.26 feet; North 00 degrees
04' 52" West, a distance of 209.07 feet; thence departing said exterior face of
the west wall, North 89 degrees 54'34" East, a distance of 45.02 feet; thence
South 00 degrees 03'55" East, a distance of 7.52 feet; thence North 89 degrees
56'05" East, a distance of 16.10 feet; thence South 00 degrees 06'52" West, a
distance of 7.46 feet; thence South 89 degrees 58'55" East, a distance of 88.29
feet; thence North 00 degrees 01'11" East, a distance of7.50 feet; thence North
89 degrees 53'35" East, a distance of 16.08 feet; thence North 00 degrees 06'25"
West, a distance of 7.53 feet; thence North 89 degrees 57'12" East, a distance
of 45.19 feet to a point on the northerly projection of the exterior face of the
east wall of said "Dillard's" (a.k.a.: "Xxxx'x") store; thence South 00 degrees
02'37" East, along said northerly projection and said exterior face of the east
wall, a distance of 142.93 feet; thence continue along said exterior face of the
east wall the following six (6) courses, to wit: North 89 degrees 57'23" East, a
distance of 0.78 feet; South 00 degrees 02'37" East, a distance of 1.04 feet;
South 89 degrees 57'23" West, a distance of 0.71 feet; South 00 degrees 02'37"
East, a distance of 0.07 feet; South 89 degrees 57'23" West, a distance of 0.41
feet; South 00 degrees 03'00" East, a distance of 30.35 feet; thence departing
said exterior face of the east wall, North 89 degrees 54'36" East, a distance of
150.45 feet; thence South 00 degrees 05'24" East, a distance of 106.67 feet;
thence North 89 degrees 54'36" East, a distance of 63.40 feet; thence South 00
degrees 05'24" East, a distance of 315.93 feet; thence South 89 degrees 54'36"
West, a distance of 294.25 feet; thence South 00 degrees 00'35" East, a distance
of 260.63 feet to the Point of Beginning.
AND ALSO LESS AND EXCEPT a portion of the "Real Property" being more
particularly described as follows: (being the same lands as being conveyed on
the date hereof to Thor MS, LLC, by Special Warranty Deed)
A parcel of land lying in the Northwest l/4 of Section 36, Township 24 South,
Range 36 East, lying Southerly of the South line of the plat of "Highland Park
Subdivision Section
Two", as recorded in Plat Book 10, Page 12, Westerly of the West line, and its
Northerly extension, of the lands per Official Records Book 2907, Page 1954,
Northerly of the Northerly right of way line of the 60.00 foot wide right-of-way
of Xxxxxxxxxxx Road per Official Records Book 1103, Page 170, all references
being recorded in the Public Records of Brevard County, Florida, and Easterly of
the East line of the West 520.00 feet, by right angle measure, of said Northwest
1/4; said subject parcel being more particularly described as follows:
Commence at the Southwest xxxxx of said Northwest 1/4; thence North 89 degrees
34' 50" East, along the South line of said Northwest 1/4; a distance of 520.01
feet to said East line of said West 520.00 feet and the Point of Beginning of
the lands herein described; thence North 00 degrees 04' 52" West, along said
East line, a distance of525.48 feet to said South plat line; thence North 89
degrees 12' 54" East, along said South line, a distance of 58.50 feet to the
Northerly extension of said West line of the lands per Official Records Book
2907, Page 1954; thence South 00 degrees 08' 11" East, along said extension and
West line, a distance of 679.37 feet to the Southwest corner of said lands per
Official Records Book 2907, Page 1954; thence North 89 degrees 51' 49" East,
along the South line of said lands, a distance of 15.85 feet; thence departing
said South line, South 00 degrees 04' 52" East, parallel with and 75.00 East, by
right angle measure, of said East line of the West 520.00 feel, a distance of
160.03 feet to said Northerly right of way line; thence North 44 degrees 57' 44"
West, along said Northerly right of way line, a distance of 106.29 feet to said
East line of the West 520.00 feet; thence North 00 degrees 04' 52" West, along
said East line, a distance of237.87 feet to the Point of Beginning.
TOGETHER WITH:
Easements for ingress/egress for the benefit of the "Developer Tract," PARCEL I,
and PARCEL II more particularly described in that certain Construction,
Operation and Reciprocal Easement Agreement between XXXX XXXXXXX LIFE INSURANCE
COMPANY and X.X. XXXX & COMPANY, recorded in Official Records Book 4581, Page
3363, affected by Four-Party Tie-In Agreement among XXXX XXXXXXX LIFE INSURANCE
COMPANY, X.X. XXXX & COMPANY, BURDINES, INC., and SEARS XXXXXXX AND CO.,
recorded in Official Records Book 4581, Page 3462, Public Records of Brevard
County, Florida, over and across the following described properties ("Sears
Tract" and "Burdines Tract"):
SEARS TRACT:
Commence at the West 1/4 xxxxx of said Section 36; thence North 89 degrees
29'32" East along the north line of the Cocoa Beach Area Chamber of Commerce
Parcel and its westerly extension a distance of 520.00 feet to the Northeast
xxxxx of said Cocoa Beach Area Chamber of Commerce Parcel; thence continue North
89 degrees 29'32" East a distance of 59.99 feet to the POINT OF BEGINNING of the
following described parcel; thence North 00 degrees 33'31" West a distance of
445.42 feet to a nail in pavement marking the point of curvature of a circular
curve to the right, having a radius of 50.00 feet and a central angle of 89
degrees 16'28"; thence along said curve an arc distance of
77.91 feet (chord: North 44 degrees 05'22" East, 70.26 feet) to a nail in
pavement marking the point of tangency of said curve; thence North 88 degrees
44'15" East a distance of 427.27 feet to a nail in pavement; thence North 74
degrees 0I'36" East a distance of 137.83 feet to a nail in pavement; thence
South 00 degrees 33'31" East a distance of 204.16 feet to a nail in pavement;
thence South 07 degrees 00'32" West a distance of 47.34 feet to a nail in
pavement; thence South 00 degrees 33'31" East a distance of 426.96 feet to a
nail in pavement; thence South 88 degrees 44'15" West a distance of 603.29 feet
to a nail in pavement; thence North 00 degrees 33'31" West a distance of
148.17feet to the POINT OF BEGINNING.
BURDINES TRACT:
Commence at a rebar marking the intersection of the westerly right-of-way line
of Xxxxx Creek Parkway (150 foot right-of-way) with the southerly right-of-way
line of Xxxxx Xxxx 000 (Xxxx Xxxxxxx Xxxxxx Xxxxxxxx) (200 foot right-Of-way);
thence South 88 degrees 42'06" West along said right-of-way line of Xxxxx Xxxx
000 a distance of 886.87 feet to the intersection of said right-of-way line with
the northerly extension of the east line of said Burdines Parcel; thence South
00 degrees 33'31" East along said northerly extension a distance of 405.87 feet
to a nail in pavement marking the Northeast xxxxx and POINT OF BEGINNING of the
following described parcel; thence South 00 degrees 33'31" East a distance of
300.00 feet to a nail in pavement; thence South 89 degrees 26'29" West a
distance of 420.00 feet to a rebar; thence North 00 degrees 33'31" West a
distance of 300.00 feet to a nail in pavement; thence North 89 degrees 26'29"
East a distance of 420.00 feet to the POINT OF BEGINNING.
TOGETHER WITH Easements for the benefit of "Developer Tract", PARCEL I, and
PARCEL II reserved in Declaration of Restrictions, Protective Covenants and
Easements for Xxxxxxx Square Financial Center, recorded December31, 1998 in
Official Records Book 3947,page 1, Amended by Amendment filed March 18, 1999 in
Official Records Book 3982, page 58, subject to the terms, provisions and
conditions set forth in said instruments.
TOGETHER WITH non-exclusive easement(s) for the benefit of "Developer Tract"
PARCELI, as created by Operating Agreement by and between XXXXXXX SQUARE
ASSOCIATES, a Joint Venture, ALSTORES REALTY CORPORATION, a Delaware
corporation, ALLIED STORES CORPORATION, a Delaware corporation, filed in
Official Records Book 1062, page 458, as modified by First Modification of
Operating Agreement filed in Official Records Book 1079, page 574, Second
Modification of Operating Agreement filed in Official Records Book 1154, page
1012, Third Modification of Operating Agreement filed in Official Records Book
2912, page 2170, as affected by Four-Party Tie-In Agreement among XXXX XXXXXXX
LIFE INSURANCE COMPANY, X.X.XXXX & COMPANY, BURDINES, INC., and SEARS, XXXXXXX
AND CO., recorded in Official Records Book 4581, Page 3462, and as further
modified by Fourth Modification to Operating Agreement filed in Official
Records Book 4581, Page 3515, all of the Public Records of Brevard County,
Florida, for utility purposes, over, under and across the lands described
therein. Subject to the terms, provisions and conditions contained in said
instrument(s).
TOGETHER WITH non-exclusive easement(s) for the benefit of "Developer Tract",
PARCEL I, as created by Construction, Operating and Reciprocal Easement
Agreement with SEARS, XXXXXXX AND CO., a New York corporation, filed in Official
Records Book 2907, page 2925, as affected by Four-Party Tie-In Agreement among
XXXX XXXXXXX LIFE INSURANCE COMPANY, X.X. XXXX & COMPANY, BURDINES, INC., and
SEARS, XXXXXXX AND CO., recorded in Official Records Book 4581, Page 3462, all
of the Public Records of Brevard County, Florida, for ingress, egress, parking,
utilities and encroachments, over, under and across the lands described therein.
Subject to the terms, provisions and conditions contained in said instrument(s).
Exhibit "A"
Real Property
A parcel of land lying in the Northwest 1/4 of Section 36, Township 24 South,
Range 36 East, lying Southerly of the South line of the plat of "Highland Park
Subdivision Section Two", as recorded in Plat Book 10, Page 12, Westerly of the
West line, and its Northerly extension, of the lands per Official Records Book
2907, Page 1954, Northerly of the Northerly right of way line of the 60.00 foot
wide right of way of Xxxxxxxxxxx Road per Official Records Book 1103, Page 170,
all references being recorded in the Public Records of Brevard County, Florida,
and Easterly of the East line of the West 520.00 feet, by right angle measure,
of said Northwest 1/4; said subject parcel being more particularly described as
follows:
Commence at the Southwest corner of said Northwest 1/4; thence North 89 degrees
34' 50" East, along the South line of said Northwest 1/4; a distance of 520.0l
feet to said East line of said West 520.00 feet and the Point of Beginning of
the lands herein described; thence North 00 degrees 04' 52" West, along said
East line, a distance of 525.48 feet to said South plat line; thence North 89
degrees 12' 54" East, along said South line, a distance of 58.50 feet to the
Northerly extension of said West line of the lands per Official Records Book
2907, Page 1954; thence South 00 degrees 08' 11" East, along said extension and
West line, a distance of 679.37 feet to the Southwest corner of said lands per
Official Records Book 2907, Page 1954; thence North 89 degrees 51' 49" East,
along the South line of said lands, a distance of 15.85 feet; thence departing
said South line, South 00 degrees 04' 52" East, parallel with and 75.00 East, by
right angle measure, of said East line of the West 520.00 feet, a distance of
160.03 feet to said Northerly right of way line; thence North 44 degrees 57' 44"
West, along said Northerly right of way line, a distance of 106.29 feet to said
East line of the West 520.00 feet; thence North 00 degrees 04' 52" West, along
said East line, a distance of237.87 feet to the Point of Beginning.
EXHIBIT B
---------
List of Equipment, Fixtures and Personal Property
-------------------------------------------------
EXHIBIT C
---------
Lease List
----------
[See attached]
EXHIBIT D
---------
List of Contracts
-----------------
Alarm (mall & pavilion) - ADT
Chiller Maint - System Tech
Electric Demand Reduction - FPL
Housekeeping - Xxxx Xxxx
Landscaping Ext - FL Lawn Choppers
Landscaping Int - Xxx Xxxxxx
Music - Muzak
Omni - Copier
Parking Lot Sweeping - Nicks Lawn Service
Phone & Internet - Nuvox
Phone Hold Message - Telephonetics
Pond Spraying - Comfix
Security - Allied Xxxxxx
Water Treatment - TLC Services
EXHIBIT E
---------
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT is made and entered into on this ____ day of
________________ ____, 2007 by and among Thor Urban Operating Fund, L.P., a
Delaware limited partnership (the "Seller"), _________________ (the "Purchaser")
and _______________________ (the "Escrow Agent").
RECITALS
--------
A. Seller and Purchaser have entered into that certain Membership Interest
Purchase and Sale Agreement of even date herewith (the "Agreement"), providing
for the sale by Seller of the membership interests in Thor MS, LLC and Xxxx
Xxxxxxx Square LLC, the owners of the property commonly known as Xxxxxxx Square,
Merritt Island, Florida (the "Property").
B. The parties wish to enter into this Escrow Agreement to provide for the
closing of the transaction contemplated by the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. On or before the Closing Date set forth in the Agreement:
a. Seller will deposit or will cause to be deposited with the Escrow
Agent the following documents:
(i) Assignment and Assumption of Membership Interests executed by
Seller (the "Assignment and Assumption");
(ii) Non-Foreign Affidavit executed by Seller;
(iii) Evidence of Seller's existence and authority to perform its
obligations under the Agreement;
(iv) A certificate executed by Seller recertifying the
representations and warranties contained in the Agreement; and
(v) All other items required by Section 11(a) of the Agreement.
b. Purchaser will deposit or will cause to be deposited the following
documents: (i) Purchaser's counterpart of the Assignment and Assumption executed
by Purchaser;
(ii) A certificate executed by Purchaser recertifying the
representations and warranties contained in the Agreement;
(iii) Wire transfer of funds in the amount required to close as
shown on the Closing Statement; and,
(iv) All other items required by Section 11(b) of the Agreement.
c. Purchaser and Seller (or their respective attorneys) will jointly
deposit the following:
(i) Closing and Proration Statement (the "Closing Statement").
2. When Escrow Agent has received all of the deposits listed in Section 1
above and is prepared to issue the Title Policy or other Purchaser Title
Protection Documents (collectively, the "Title Policy") having an effective date
as of the Closing Date and insuring the title of Purchaser in the Land, subject
only to those matters permitted by the Agreement, Escrow Agent is then
authorized and instructed to simultaneously proceed as follows:
a. Pay the disbursements as shown on the Closing Statement from funds
deposited by Purchaser.
b. Deliver to Purchaser the Title Policy, one original of the
Assignment and Assumption, the recertification of the representations and
warranties, the Closing Statement and copies of all other deposits.
c. Deliver to Seller one original of the Assignment and Assumption,
the Closing Statement and copies of all other deposits made hereunder.
3. If Escrow Agreement is not prepared to issue the Title Policy or if
Escrow Agent is not able to comply with the other instructions contained herein
on or before 5:00 p.m. on the Closing Date, Escrow Agent is hereby authorized
and directed to continue to comply with this Escrow Agreement until Escrow Agent
has received a written demand from any party hereto for the return of the
deposits made hereunder by said party. Upon receipt of such demand, Escrow Agent
is hereby authorized and directed to return to the party making such demand the
deposits made by such party without notice to any other party and may return all
remaining deposits to the respective depositors thereof, except that,
notwithstanding the terms hereof, joint deposits of documents shall be
destroyed.
4. The Escrow Agent shall be entitled to rely and act upon any written
instrument received by it from either party, and if a corporation, purporting to
be executed by an officer thereof, and if a partnership, purporting to be
executed by a general partner thereof and shall not be required to inquire into
the authority of such officer or partner or the correctness of the facts stated
in said instrument. By acceptance of this agreement, Escrow Agent agrees to use
its best judgment and good faith in the performance of any of its obligations
and duties under this Agreement and shall incur no liability to any person for
its acts or omissions hereunder, except for those acts or omissions which may
result from its gross negligence or willful misconduct.
5. The Escrow Agent shall be reimbursed for any reasonable expenses
incurred by it hereunder, including the reasonable fees of any attorneys that it
may wish to consult in connection with the performance of its duties hereunder.
Such compensation and expenses shall be paid and reimbursed to the Escrow Agent
one-half by Purchaser and one-half by Seller.
6. In the event of a dispute between any of the parties hereto as to their
respective rights and interests hereunder, the Escrow Agent shall be entitled to
hold any and all cash then in its possession hereunder until such dispute shall
have been resolved by the parties in dispute and the Escrow Agent shall have
been notified by instrument jointly signed by all of the parties in dispute, or
until such dispute shall have been finally adjudicated by a court of competent
jurisdiction.
7. Any notice which any party may be required or may desire to give
hereunder shall be deemed to have been duly given when personally delivered, on
the next business day if sent by overnight courier, or on the fourth business
day after mailing by certified or registered mail, postage prepaid, addressed as
set forth in the Agreement, or to such other address as a party hereto may
designate by a notice to the other parties. Any notice mailed, sent by facsimile
transmission, or given to the Escrow Agent shall be deemed given only when
received.
9. The Escrow Agent hereby consents and agrees to all of the provisions
hereof, and agrees to accept, as Escrow Agent hereunder, all cash and documents
deposited hereunder, and agrees to hold and dispose of said cash and documents
deposited hereunder in accordance with the terms and provisions hereof.
10. This Escrow Agreement and all of the provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors and assigns.
11. This Escrow Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SELLER: THOR URBAN OPERATING FUND, L.P., a
Delaware limited partnership,
its sole member
By: Thor Operating Fund L.L.C., a Delaware
limited liability company, its general
partner
By:_____________________________________
Name: Xxxxxx X. Xxxx, sole member
PURCHASER: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, sole general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
ESCROW AGENT:
______________________________
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT F
---------
Form of Tenant Estoppel Certificate
-----------------------------------
TENANT:__________________________
DATE OF LEASE:___________________
AMENDED:_________________________
PREMISES:________________________
To:
The undersigned hereby certifies as follows:
1. The undersigned is the "Tenant" under the above-referenced Lease ("Lease")
covering the above-referenced Premises ("Premises").
2. The Lease constitutes the entire agreement between landlord under the Lease
("Landlord") and Tenant with respect to the Premises and the Lease has not been
modified or amended in any respect except as set forth above.
3. The term of the Lease commenced on ____________, ____, and, including any
presently exercised option or renewal term, will expire on ________________,
20__. Tenant has accepted possession of the Premises and is the actual occupant
in possession and has not sublet or assigned its leasehold interest except
_______________. All improvements to be constructed on the Premises by Landlord
have been completed and accepted by Tenant and any tenant improvement allowances
have been paid in full.
4. As of this date, there exists no default, nor state of facts which, with
notice, the passage of time, or both, would result in a default on the part of
either Tenant or Landlord.
5. Tenant is currently obligated to pay annual rental in monthly installments of
$[specify base and percentage rent as applicable] per month and monthly
installments of annual rental have been paid through ______________, 20__. In
addition, the Lease requires additional rent based on increases in operating
costs and taxes. No other rent has been paid in advance and Tenant has no claim
or defense against Landlord under the Lease and is asserting no offsets or
credits against either the rent or Landlord. Tenant has no claim against
Landlord for any security or other deposits except $____________ which was paid
pursuant to the Lease.
6. Tenant has no option or preferential right to lease or occupy additional
space within the property of which the Premises are a part except _____________.
Tenant has no option or preferential right to purchase all or any part of the
Premises. Tenant has no right to renew or extend the terms of the Lease except
_________________________.
7. Tenant has made no agreements with Landlord or its agent or employees
concerning free rent, partial rent, rebate of rental payments or any other type
of rental or other concession except as expressly set forth in the Lease.
8. There has not been filed by or against Tenant a petition in bankruptcy,
voluntary or otherwise, any assignment for the benefit of creditors, any
petition seeking reorganization or arrangement under the bankruptcy laws of the
United States, or any state thereof, or any other action brought under said
bankruptcy laws with respect to Tenant.
This Certificate is made to ____________________ in connection with the
prospective purchase by __________________ or its nominee of the Interests in
the Company which owns the Premises.
This Certificate may be relied on by _________________________, any other party
which acquires an interest in the Company or by the Lender.
Dated this ______ day of _________________, 2007.
_______________________________________
By:____________________________________
Its:___________________________________
"TENANT"
EXHIBIT G
---------
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
-------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION MEMBERSHIP INTERESTS (this "Assignment") is
entered into as of the ____ day of ____________, 200__ ("Effective Date"),
between THOR URBAN OPERATING FUND, L.P., a Delaware limited partnership
("Assignor"), with an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and [ ]
("Assignee"), with an office .
WHEREAS, Assignor is the owner and holder of a one hundred (100%) percent
membership interest (the "Membership Interest") in Thor MS, LLC and Xxxx Xxxxxxx
Square LLC, each a Delaware limited liability company (collectively, the
"Company");WHEREAS, pursuant to the terms of that certain Membership Interest
Purchase and Sale Agreement dated as of , 2007 between Assignor and Assignee,
Assignor has agreed to sell and Assignee has agreed to purchase the Membership
Interest and to execute this Assignment in connection therewith.
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration paid by Assignee to Assignor, Assignor and Assignee hereby agree
as follows:
1. Assignment. Assignor hereby sells, assigns, transfers and conveys to
Assignee the Membership Interest.
2. Assumption. Assignee hereby accepts from Assignor the Membership
Interest, and assumes all of the obligations and liabilities of Assignor, as the
holder of the Membership Interest, accruing from and after the date hereof.
3. Adoption of Operating Agreement. Assignee hereby accepts and adopts all
of the terms and conditions of the operating agreement of the Company from and
after the date hereof, and agrees to be bound by all the terms, articles and
conditions thereof.
4. Withdrawal. Assignor hereby withdraws as a member from the Company (the
"Withdrawal"). The Withdrawal shall be effective as of the date hereof, without
the need for execution of any additional documentation.
5. Effective Date. This Assignment is effective as of the date hereof, and
from and after the date hereof that portion of the net profits or net losses and
cash flow of the Company allocable to the Membership Interest shall be credited,
charged or distributed, as the case may be, to Assignee and not to Assignor.
6. Indemnification of Assignee. The Assignor shall indemnify, defend and
hold harmless Assignee, its agents, employees, officers, directors, managers,
members, legal representatives, successors and assigns from and against any
liability, loss, cost or expense (including but not limited to reasonable
attorney's fees and expenses) incurred by Assignee as a result of such
Assignor's failure to perform any of its obligations as holder of the Membership
Interest to the extent that such obligations accrued prior to the date hereof;
provided, however, that Assignor's obligations under this Paragraph 6 shall not
exceed Seller's Maximum Liability (as defined in Section 17 of the Purchase
Agreement).
7. Indemnification of Assignor. Assignee shall indemnity, defend and hold
harmless Assignor, its agents, employees, officers, directors, managers,
members, legal representatives, successors and assigns from and against any
liability, loss, cost or expense (including but not limited to reasonable
attorney's fees and expenses) incurred by Assignor as a result of Assignee's
failure to perform any of its obligations as holder of the Membership Interest
to the extent that such obligations accrue on or after the date hereof.
8. Delinquent Rents. Notwithstanding anything to the contrary in this
Assignment, (i) Assignor hereby reserves the right to collect and retain
delinquent rentals as described on Schedule A; and (ii) the liability of
Assignor hereunder shall be limited as set forth in the Purchase Agreement,
including, without limitation, Sections 17 and 23(r) of the Purchase Agreement.
9. Miscellaneous. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective legal or personal
representatives, heirs, executors, administrators, successors, and assigns. No
third party shall have the benefit of any of the provisions of this Assignment
nor is this Assignment made with the intent that any person or entity other than
Assignor or Assignee rely hereon. If Assignor or Assignee resorts to a court of
law or equity in order to enforce the provisions of this Assignment as against
the other, the non-prevailing party shall pay the reasonable attorneys' fees and
expenses of the prevailing party. No modification, waiver, amendment, discharge
or change of this Assignment shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought. This Assignment shall be
construed and enforced in accordance with the laws of the State of Delaware.
This Assignment may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but all of which
shall together constitute one and the same agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR: THOR URBAN OPERATING FUND, L.P., a
Delaware limited partnership, its sole member
By: Thor Operating Fund L.L.C., a Delaware
limited liability company, its general
partner
By:_______________________________________
Xxxxxx X. Xxxx, sole member
ASSIGNEE: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, sole general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT H
---------
FORM OF TENANT NOTIFICATION LETTER
----------------------------------
_____________, 2007
To the Tenants of Xxxxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
Re: TENANT NOTICE LETTER SALE XX
XXXXXXX XXXXXX XXXX, XXXXXXX XXXXXX, XXXXXXX
--------------------------------------------
Dear Ladies and Gentlemen:
This notice is delivered to advise you that on , 200__ all of the
membership interests in Thor MS, LLC and Xxxx Xxxxxxx Square LLC, the owners of
the above-referenced property were sold and assigned by Thor Urban Operating
Fund, L.P. to _____________________ (the "Purchaser"). Accordingly, you are
hereby authorized and directed to make all future payments under the lease to
Company and to address any and all notices and other communications to the
landlord under or in connection with your lease to the Company or the Company's
property manager at the following address: [ARE RENT PAYMENTS PAID TO CASH
MANAGEMENT AGREEMENT BANK?]
Furthermore, please notify the insurance carrier(s) providing insurance
required under your lease of the foregoing and have the [Property Manager] added
as additional insureds.
If you have any questions regarding any of this information, please contact
___________ at ______________________.
Very truly yours,
THOR URBAN OPERATING FUND, L.P., a
Delaware limited partnership, its sole member
By: Thor Operating Fund L.L.C., a Delaware
limited liability company, its general partner
By:_______________________________
Xxxxxx X. Xxxx, sole member
EXHIBIT I
---------
RECERTIFICATION OF REPRESENTATIONS AND WARRANTIES
-------------------------------------------------
The undersigned hereby certifies that each of the representations and warranties
made by it in that certain Membership Interest Purchase and Sale Agreement dated
__________ ___, 2007 by and between the undersigned and ________________________
are true, correct and complete in all material respects as of the date hereof
except _________________________________________________________________________
_______________________________________________________________________________.
Dated ________________, 2007.
THOR URBAN OPERATING FUND, L.P., a
Delaware limited partnership, its sole member
By: Thor Operating Fund L.L.C., a Delaware
limited liability company, its general
partner
By:_____________________________________
Xxxxxx X. Xxxx, sole member
EXHIBIT J
---------
Disclosure of Lease Matters/Pending Commissions
-----------------------------------------------
- Tenant approval for improvements to Lids and Zumies still outstanding.
- Landlord required work for Unique Boutique not yet completed as required
under lease.
- JC Penney interior and exterior painting not yet completed in accordance
with the lease.
- Repairs to roof and drain of Radio Shack currently underway.
