1
Exhibit 10.3
AGREEMENT FOR PURCHASE AND SALE
March 9, 1999
2
TABLE OF CONTENTS
PAGE
ARTICLE 1 BASIC DEFINITIONS............................................. 1
ARTICLE 2 PURCHASE AND EXCHANGE......................................... 4
ARTICLE 3 CONDITIONS PRECEDENT.......................................... 12
ARTICLE 4 COVENANTS, WARRANTIES AND REPRESENTATIVES..................... 14
ARTICLE 5 DEPOSIT; DEFAULT.............................................. 23
ARTICLE 6 CLOSING....................................................... 29
ARTICLE 7 MISCELLANEOUS................................................. 39
3
List of Exhibits
* Exhibit A-1 -- Transferors & Properties (Sale Properties)
* Exhibit A-2 -- Transferors & Properties (Exchange Properties)
* Exhibit B -- Confirmation Letter
* Exhibit C -- Disclosure Materials List & Statement
* Exhibit D -- Title Allocations
* Exhibit E -- Rent Rolls
* Exhibit F -- Intentionally Omitted
* Exhibit G -- Title Exceptions
* Exhibit G-1 -- Excluded Exceptions
* Exhibit G-2 -- Title Documents to be Obtained
* Exhibit H-1 -- Allocated Price (Sale Properties)
* Exhibit H-2 -- Allocated Price (Exchange Properties)
* Exhibit I -- Transfer Documents
* Exhibit J -- Press Release
* Exhibit K -- Title Affidavit
* Exhibit L -- Excluded Claims
* Exhibit M -- [Intentionally Omitted]
* Exhibit N -- Investigation Matters
* Exhibit N-1 -- Credit Calculation Example
* Exhibit O -- Indemnity Agreements
* Exhibit P -- Year 2000 Action
* Exhibit Q -- Insured Properties
* Exhibit R -- Southwest Pavillion Property
* Exhibit S -- Vacant Space
* Exhibit T-1 -- Audit Documents
* Exhibit T-2 -- Audit Certificate
* Exhibit U-1 -- Assigned Insurance Property
* Exhibit U-2 -- Assigned Insurance
* Exhibit U-3 -- No Further Action Properties
* Exhibit U-4 -- Access and Remediation Agreement
* Exhibit V -- Agreements
* Exhibit W -- Litigation
4
AGREEMENT FOR PURCHASE AND EXCHANGE
THIS AGREEMENT FOR PURCHASE AND EXCHANGE is made and entered into as of
March 9, 1999, by and among AMB PROPERTY, L.P., a Delaware limited partnership
("AMBLP"), AMB PROPERTY II, L.P., a Delaware limited partnership ("AMB II" and
AMBLP are, collectively, as to the properties described on Exhibit A-2, the
"Exchangors," and as to the properties described on Exhibit A-1, the "Sellers"
and, together, the "Transferors"), and BPP RETAIL, LLC, a Delaware limited
liability company ("Buyer"). Transferors and their respective interests in the
Properties (as defined below) are identified more precisely on Exhibit A to this
Agreement.
RECITALS
A. The Sellers, either directly or indirectly (with certain Third
Parties (as herein defined)), hold ownership of a portfolio of properties listed
on Exhibit A-1 to this Agreement and defined below with greater specificity as
the "Sale Properties."
B. The Exchangors, either directly or indirectly (with certain Third
Parties (as herein defined)), hold ownership of a portfolio of properties listed
on Exhibit A-2 to this Agreement and defined below with greater specificity as
the "Exchange Properties."
C. Buyer desires to acquire and each of Exchangors desires to transfer,
subject to the terms and conditions contained in this Agreement, the entirety of
its right, title and interest in the Exchange Properties.
D. Buyer desires to acquire and each of Sellers desires to sell,
subject to the terms and conditions contained in this Agreement, the entirety of
its right, title and interest in the Sale Properties.
AGREEMENT
NOW, THEREFORE, Buyer and Transferors do hereby agree as follows:
ARTICLE 1
BASIC DEFINITIONS
"Additional Exceptions" shall have the meaning set forth in Section
2.6(a).
"Additional Title Exception Notice" shall have the meaning set forth in
Section 2.6(b).
"Allocated Price" shall refer, as to each Sale Property, to the portion
of the Sale Purchase Price allocated to such Sale Property as set forth on
Exhibit H-1 to this Agreement, and as to each Exchange Property, to the portion
of the Exchange Price allocated to such Exchange Property as set forth on
Exhibit H-2 to this Agreement.
"Closing Date" shall mean December 1, 1999 (as such date may be
deferred with respect to a particular Property pursuant to the terms of this
Agreement); provided, that Transferors shall
1
5
have the right to extend the Closing Date for up to twenty (20) days, upon not
less than ten (10) business days notice prior to the original Closing Date.
"Confirmation Letter" shall mean the letter in the form attached as
Exhibit B to this Agreement to be delivered by Buyer to Transferors on or prior
to the close of the prescribed Confirmation Period pursuant to Section 3.2
below.
"Confirmation Period" shall mean the period commencing on the date of
this Agreement, and ending at 5:00 p.m., California time on April 8, 1999,
provided that the Confirmation Period may end earlier at Buyer's election upon
delivery by Buyer to Transferors of the Confirmation Letter (representing the
conclusive waiver by Buyer of any further Confirmation Period).
"Contract Period" shall mean the period from the date of this Agreement
through and including the Closing Date (as the same may be extended pursuant to
this Agreement).
"Contracts" shall mean all maintenance, service and other operating
contracts, equipment leases and other arrangements or agreements to which any
Transferors is a party affecting the ownership, repair, maintenance, management,
leasing or operation of the Properties.
"Deferred Property" shall have the meaning set forth in Section 2.5(d)
below.
"Deleted Property" shall have the meaning set forth in Section 2.5(d)
below.
"Disclosure Materials" shall mean those materials described in Section
A of the Disclosure Materials List & Statement to which Buyer has been afforded
access and review rights prior to the date of this Agreement.
"Disclosure Materials List & Statement" shall mean the statement set
forth as Exhibit C to this Agreement.
"Exchange Price" shall have the meaning set forth in Section 2.2(b)
below.
"Exchange Property" shall mean, with respect to each of the Properties
described on Exhibit A-2, the Real Property, the Personal Property and the
Intangible Property. Collectively, such Properties shall be referred to as the
"Exchange Properties."
"Financial Statements" shall mean the historical income and expense
statements for the Properties for calendar years 1997 and 1998 (or such shorter
period as Transferors may have owned an applicable Property), which have been
provided to Buyer.
"Hazardous Materials" shall mean any substances, materials, wastes,
pollutants or contaminants defined or listed in or subject to reporting,
investigation, permitting, remediation, licensing or other regulatory
requirements under any environmental laws or regulations, including, without
limitation, any inflammable explosives, radioactive materials, asbestos,
polychlorinated biphenyls, trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, petroleum products and
by-products and other substances with toxic or hazardous characteristics.
2
6
"Improvements" shall mean, as to each of the properties listed on
Exhibit A, the right, title and interest of the Transferors in ownership of such
property in any and all structures, buildings, facilities, parking areas or
other improvements situated on such property's Land and all related fixtures,
improvements, building systems and equipment (including, without limitation,
HVAC, security and life safety systems).
"Intangible Property" shall mean, as to each Real Property, the right,
title and interest of the Transferors in ownership of such Real Property in: (a)
any and all permits, entitlements, filings, building plans, specifications and
working drawings, certificates of occupancy, operating permits, sign permits,
development rights and approvals, certificates, licenses, warranties and
guarantees, engineering, soils, pest control, survey, environmental, appraisal,
market and other reports relating to such Real Property and associated Personal
Property; (b) all trade names, service marks, tenant lists, advertising
materials and telephone exchange numbers identified with such Real Property; (c)
the Contracts and the Leases; (d) except as set forth on Exhibit L attached
hereto (the "Excluded Claims"), claims, awards, actions, remedial rights and
judgments, and escrow accounts relating to environmental remediation, to the
extent relating to such Real Property and associated Personal Property; (e) all
books, records, files and correspondence relating to such Real Property and
associated Personal Property; (f) to the extent assignable, the agreements
listed on Exhibit V attached hereto, including all purchase options, rights of
first refusal or first opportunity to purchase and similar rights contained
therein; and (g) all other transferable intangible property, miscellaneous
rights, benefits or privileges of any kind or character with respect to such
Real Property and associated Personal Property, including, without limitation,
under any REAs, provided that the Intangible Property shall not include any
Transferor's name or any right to the reference "AMB".
"Investigation Matters" shall have the meaning set forth in Section
2.4(a) below.
"Joint Venture" shall have the meaning set forth in Section 2.7 below.
"Land" shall mean, as to each of the properties listed on Exhibit A,
the land component of the property as described with precision in the Title
Policies.
"Leases" shall mean, as to each Real Property, all leases, concession
agreements, rental agreements or other agreements (including all amendments or
modifications thereto) which entitle any person to the occupancy or use of any
portion of the Real Property.
"Material Adverse Matters Amount" shall refer, as to any Property, to
the amount, if any, as to which Buyer claims a credit against the Price with
respect to an Investigation Matter pursuant to Section 2.5 and Exhibit N
attached hereto.
"Permitted Exceptions" shall mean the various matters affecting title
to the Properties that are approved or deemed approved by Buyer pursuant to
Section 2.6 below.
"Personal Property" shall mean, as to each Real Property, all
furniture, furnishings, trade fixtures and other tangible personal property
directly or indirectly owned by the Transferors in ownership of such Real
Property that is located at and used exclusively in connection with the
operation of any Real Property.
3
7
"Price" shall mean the Sale Purchase Price and the Exchange Price,
collectively.
"Property" shall mean, with respect to each of the properties described
on Exhibit A, the Real Property, the Personal Property and the Intangible
Property. Collectively, such properties shall be referred to as the
"Properties."
"Real Property" shall mean, as to each property listed on Exhibit A,
the Land, the Improvements and all of Transferor's right, title and interest in
and to the rights, privileges, easements, and appurtenances to the Land or the
Improvements, including, without limitation, any air, development, water,
hydrocarbon or mineral rights held by any Transferors, all licenses, easements,
rights-of-way, claims, rights or benefits, covenants, conditions and servitude
and other appurtenances used or connected with the beneficial use or enjoyment
of the Land or the Improvements and all rights or interests relating to any
roads, alleys or parking areas adjacent to or servicing the Land or the
Improvements.
"REAs" shall have the meaning set forth in Section 4.1(b)(viii) below.
"Rent Rolls" shall refer to the information schedules attached as
Exhibit E to this Agreement pertaining to the Leases.
"Sale Property" shall mean, with respect to each of the Properties
described on Exhibit A-1, the Real Property, the Personal Property and the
Intangible Property. Collectively, such Properties shall be referred to as the
"Sale Properties."
"Sale Purchase Price" shall have the meaning set forth in Section
2.2(a) below.
"Surveys" shall refer to Transferors' existing surveys with respect to
the Properties which have been delivered by Transferors to Buyer.
"Third Party" or "Third Parties" shall have the meaning set forth in
Section 2.7 below.
"Title Company" shall mean Chicago Title Company; Attn: Xxx Xxxxxxxx
(Telephone: (000) 000-0000).
"Title Policies" shall refer to Transferors' existing title insurance
policies with respect to the Properties, complete copies of which have been made
available by Transferors to Buyer.
"1031 Exchange" shall have the meaning set forth in Section 6.6 below.
ARTICLE 2
PURCHASE AND EXCHANGE
SECTION 2.1 Purchase and Transfer. Exchangors agree to transfer the
Exchange Properties to Buyer by means of one or more 1031 Exchanges, and Buyer
agrees to acquire the Exchange Properties upon all of the terms, covenants and
conditions set forth in this Agreement. In furtherance of exchange, Buyer agrees
to cooperate in such 1031 Exchanges pursuant to and as provided in Section 6.6
below. Sellers agree to sell the Sale Properties to Buyer and Buyer
4
8
agrees to purchase or cause to be purchased the Sale Properties upon all of the
terms, covenants and conditions set forth in this Agreement.
SECTION 2.2 Price.
(a) The aggregate purchase price for the Sale Properties (the
"Sale Purchase Price") shall be the sum of Twelve Million Seven Hundred Fourteen
Thousand Dollars (U.S. $12,714,000), subject to adjustment in accordance with
Sections 2.3 [Adjustments], 6.3 [Prorations] and 6.9 [Completion Events] below.
The entire amount of the Sale Purchase Price so adjusted shall be payable by
Buyer to Sellers in cash on the Closing Date through the escrow described in
Section 6.1 below.
(b) The aggregate price for the Exchange Properties (the
"Exchange Price") shall be the sum of One Hundred Twelve Million One Hundred
Nineteen Thousand Dollars (U.S. $112,119,000), subject to adjustment in
accordance with Sections 2.3 [Adjustments], 6.3 [Prorations] and 6.9 [Completion
Events] below. The entire amount of the Exchange Price so adjusted shall be
payable by Buyer to one or more exchange facilitators selected by Exchangors in
their sole discretion, in furtherance of one or more 1031 Exchanges, through
payment in cash of the entire balance of the Exchange Price on the Closing Date
through one or more escrows described in Section 6.1 below.
SECTION 2.3 Adjustments. In addition to the prorations and credits
contemplated by Section 6.3 below, (a) the Price shall be decreased by the
aggregate amount of the Allocated Prices of any Deleted Properties, (b) the
portion of the Price payable on the Closing Date shall be reduced by the
Allocated Price of any Deferred Properties, and (c) the Price shall be decreased
by the aggregate amount of any adjustments effected pursuant to Sections 2.5 and
2.6 below.
SECTION 2.4 Buyer's Review and Transferors' Disclaimer.
(a) Buyer acknowledges that Transferors have afforded Buyer
and its agents and representatives an opportunity to review all of the
Disclosure Materials prior to the date of this Agreement and, subject to the
express terms of this Agreement, that Buyer has completed such review to its
satisfaction. Buyer has assumed fully the risk that Buyer has failed completely
and adequately to review and consider any or all of such materials. But for
Buyers' expression of satisfaction with the content of the Disclosure Materials,
Buyer would not have entered into this Agreement; but for Buyer's expression of
such satisfaction and assumption of any risk as to the character of its review
and consideration of the Disclosure Materials, Transferors would not have
entered into this Agreement. Nevertheless, during the Confirmation Period, Buyer
shall be permitted to make a further review of information relating solely to
the matters described on Exhibit N attached hereto (the "Investigation Matters")
to determine whether any Material Adverse Matters Amounts exist with respect to
the Properties and the extent of any such Material Adverse Matters Amount.
Following the Confirmation Period, Buyer shall have no further right of
inspection and review with respect to the Properties except solely for the
purpose of assisting Buyer in its management transition as provided in Sections
4.2(m) and (o) and Section 6.10. The rights and obligations of the parties
arising out of Buyer's determination and assertion prior to the close of the
Confirmation Period that such Material Adverse Matters Amounts do exist shall
5
9
be limited and solely governed by the provisions of Section 2.5 below and
Exhibit N attached hereto.
(b) Buyer's exercise of the rights of review and confirmation
set forth in subsection (a) shall be subject to the following limitations: (i)
any entry onto any Property by Buyer, its agents or representatives, shall be
during normal business hours, following not less than 24 hours' prior notice to
Transferors and, at Transferors' discretion, accompanied by a representative of
Transferors; (ii) Buyer shall not conduct any drilling, test borings or other
disturbance of any Property for review of soils, compaction, environmental,
structural or other conditions without Transferors' prior written consent (which
may be withheld in Transferor's sole and absolute discretion); (iii) any
discussions or interviews with any third party, any partner of any Transferors,
any tenants of a Property or their respective personnel, at Transferors'
election, shall be conducted in the presence of Transferors or their
representatives; (iv) any discussions or interviews with employees at any
Property shall be limited to designated senior employees and, at Transferors'
election, shall be conducted in the presence of Transferors or their
representatives; (v) Buyer shall exercise reasonable diligence not to disturb
the use or occupancy or the conduct of business at any Property; (vi) prior to
any entry upon the Property by Buyer or any of its agents, representatives or
consultants for the purpose of conducting any inspections, investigations or
tests, Buyer shall deliver to Transferors a certificate of insurance evidencing
that Buyer carries a liability insurance policy in an amount not less than
$5,000,000, which liability insurance policy names each Transferors as an
additional insured; and (vii) Buyer shall indemnify, defend and hold Transferors
harmless from all loss, cost, and expense relating to personal injury or
property damage resulting from any entry or inspections performed by Buyer, its
agents or representatives. Subject to the provisions of this Agreement,
Transferors shall at all times use all reasonable efforts (but at no material
cost to Transferors) to provide Buyer with access or information that Buyer may
reasonably request concerning the Properties, but Transferors shall bear no
liability if Transferors are not able to afford Buyer such access or information
despite such reasonable efforts.
(c) Buyer acknowledges (i) that Buyer has entered into this
Agreement with the intention of making and relying upon its own investigation of
the physical, environmental, economic and legal condition of the Properties,
(ii) that, other than those specifically set forth in Article IV below or in any
document to be delivered pursuant to Section 6.1 below, Transferors are not
making and have not at any time made any warranty or representation of any kind,
expressed or implied, with respect to the Properties, including, without
limitation, warranties or representations as to habitability, merchantability,
fitness for a particular purpose, title (other than Transferors' limited
warranty of title set forth in the Deeds), zoning, tax consequences, latent or
patent physical or environmental condition, utilities, operating history or
projections, valuation, projections, compliance with law or the truth, accuracy
or completeness of the Disclosure Materials, (iii) that other than those
specifically set forth in Article IV below or in any document to be delivered
pursuant to Section 6.1 below, Buyer is not relying upon and is not entitled to
rely upon any representations and warranties made by Transferors or anyone
acting or claiming to act on any of Transferors' behalf, (iv) that the
Disclosure Materials include soils, environmental and physical reports prepared
for Transferors by third parties as to which Buyer has no right of reliance,
Buyer has conducted an independent evaluation and Transferors have made no
representation whatsoever as to accuracy, completeness or adequacy (provided,
however, that nothing herein shall be deemed to limit Buyer's right to seek to
obtain from the
6
10
third parties which prepared such reports the right to rely on
such reports at no cost to Transferors), and (v) that the Disclosure Materials
include economic projections which reflect assumptions as to future market
status and future Property income and expense with respect to the Properties
which are inherently uncertain and as to which Transferors have not made any
guaranty or representation whatsoever. Buyer further acknowledges that it has
not received from Transferors any accounting, tax, legal, architectural,
engineering, property management or other advice with respect to this
transaction and is relying solely upon the advice of its own accounting, tax,
legal, architectural, engineering, property management and other advisors.
Except as provided in the representations and warranties of Transferors set
forth in Article IV below and except as otherwise expressly set forth in this
Agreement or in any document to be delivered pursuant to Section 6.1 below,
based upon the order of Buyer's familiarity with and due diligence relating to
the Properties and pertinent knowledge as to the markets in which the Properties
are situated and in direct consideration of Transferors' decision to sell or
exchange the Properties to Buyer for the Price and not to pursue available
disposition alternatives, Buyer shall purchase the Properties in an "as is,
where is and with all faults" condition on the Closing Date and assumes fully
the risk that adverse latent or patent physical, environmental, economic or
legal conditions may not have been revealed by its investigations. Transferors
and Buyer acknowledge that the compensation to be paid to Transferors for the
Properties has taken into account that the Property is being sold or exchanged
subject to the provisions of this Section 2.4. Transferors and Buyer agree that
the provisions of this Section 2.4 shall survive closing.
(d) Consistent with the foregoing and subject solely to the
express covenants and indemnities set forth in this Agreement and the
representations set forth in Section 4.1 or in any document to be delivered
pursuant to Section 6.1 below (as such covenants, indemnities and
representations are limited pursuant to Section 4.4 hereof), effective as of the
Closing Date, Buyer, for itself and its agents, affiliates, successors and
assigns, hereby releases and forever discharges Transferors, their respective
members, beneficial owners, agents, affiliates, successors and assigns
(collectively, the "Releasees") from any and all rights, claims and demands at
law or in equity, whether known or unknown at the time of this agreement, which
Buyer has or may have in the future, arising out of the physical, environmental,
economic or legal condition of the Properties, including, without limitation,
all claims in tort or contract and any claim for indemnification or contribution
arising under the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601, et. seq.) or any similar federal, state
or local statute, rule or ordinance relating to liability of property owners for
environmental matters. Without limiting the foregoing, Buyer, upon closing,
shall be deemed to have waived, relinquished and released Transferors and all
other Releasees from and against any and all matters arising out of latent or
patent defects or physical conditions, violations of applicable laws and any and
all other acts, omissions, events, circumstances or matters affecting the
Properties, except for breach of the express covenants and indemnities set forth
in this Agreement and the representations and warranties set forth in Section
4.1 or in any document to be delivered pursuant to Section 6.1 (as such
covenants, indemnities and representations are limited pursuant to Section 4.4
hereof). For the foregoing purposes, Buyer hereby specifically waives the
provisions of Section 1542 of the California Civil Code and any similar law of
any other state, territory or jurisdiction. Section 1542 provides:
7
11
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Buyer hereby specifically acknowledges that Buyer has carefully reviewed this
subsection and discussed its import with legal counsel and that the provisions
of this subsection are a material part of this Agreement.
________________
Buyer
(e) Subject to the express covenants and indemnities set forth
in this Agreement and the representations of Transferors set forth in Section
4.1 or in any document to be delivered pursuant to Section 6.1 (as such
covenants, indemnities and representations are limited pursuant to Section 4.4
hereof), Buyer shall indemnify, defend and hold Transferors harmless from and
against any and all losses, damages, causes of action, costs and expenses
(including without limitation, reasonable attorneys' fees and costs), claims and
liabilities in connection with or relating directly or indirectly to the
Properties to the extent arising out of or resulting from acts or omissions
occurring from and after the Closing Date. Transferors shall indemnify, defend
and hold Buyer harmless from and against any and all losses, damages, causes of
action, costs and expenses (including, without limitation, reasonable attorneys'
fees and costs), claims and liabilities in connection with claims brought by
third parties unaffiliated to Buyer (i) for physical injury to persons or
physical damage to property to the extent such injury or damage occurred on the
Properties and arose out of or resulted from acts or omissions of Transferors
that took place prior to the Closing Date, (ii) with respect to acts or
omissions of Transferors that took place prior to the Closing Date and that are
actually insured under an insurance policy carried by Transferors (and then only
to the extent of the proceeds actually paid under such policy, Transferors
agreeing to use commercially reasonable efforts to realize such insurance
proceeds) and (iii) with respect to each of the matters which are listed on
Exhibit W attached hereto as such list may be amended from time to time during
the Contract Period by Transferors (and provided to Buyer) to reflect new
litigation filed against Transferors during the Contract Period (the foregoing
items (i), (ii) and (iii) being collectively referred to as "Claims"); provided
that Transferors' indemnity contained in this Section 2.4(e) shall not apply to
any Claims relating to or arising out of or in connection with the environmental
condition of the Properties whether or not such Claim may be covered by
Transferors' environmental insurance policies.
SECTION 2.5 Material Adverse Matters Amounts.
(a) On or prior to the close of the Confirmation Period, Buyer
shall deliver to Transferors the Confirmation Letter in the form attached as
Exhibit B to this Agreement confirming Buyer's satisfaction as to the absence of
any Material Adverse Matters Amounts other than as specified in the Confirmation
Letter and waiving any further right or need to conduct further review or
investigation for such purposes. Buyer's failure to deliver to Transferors on or
prior to the close of the Confirmation Period an executed Confirmation Letter in
the form attached as Exhibit B, without modification or qualification in any
manner whatsoever (whether material or immaterial) -- excepting an enumeration
and explanation of
8
12
identified Material Adverse Matters Amounts, shall be deemed conclusively as
Buyer's confirmation of the absence of any Material Adverse Matters Amounts.
(b) If the Confirmation Letter identifies any Material Adverse
Matters Amounts, the Confirmation Letter shall set forth: (i) the identity of
any Properties as to which Buyer has identified any Material Adverse Matters
Amounts, (ii) the nature of the Investigation Matter for each affected Property
which resulted in such Material Adverse Matters Amounts and (iii) reasonably
detailed evidence of the existence of such Material Adverse Matters Amount and
Buyer's rationale for and calculation of the Material Adverse Matters Amounts
set forth.
(c) If the Confirmation Letter does so identify Material
Adverse Matters Amounts, then, for a period ending five (5) business days
following the close of the Confirmation Period, Buyer and Transferors shall
negotiate in good faith (but otherwise as a matter within each party's sole
discretion) to determine whether the parties can reach a mutually acceptable
reduction in the Price. The parties further acknowledge that neither
participation in nor any statements made in the course of such discussions shall
represent or be interpreted as an admission or agreement as to the existence,
character or measure of any Material Adverse Matters Amount.
(d) In any event, if the parties are not able to reach and
execute a written agreement evidencing a mutually satisfactory Price adjustment
within such five (5) business day negotiation period, Transferors shall provide
Buyer with written notice (the "Election Notice") within an additional period of
three (3) business days informing Buyer that Transferors, in Transferors' sole
discretion: (i) dispute the existence or measure of Material Adverse Matters
Amounts as to Properties identified in the Election Notice, (ii) accept Buyer's
calculation of the Material Adverse Matters Amounts, in which case the Price
shall be reduced by the Material Adverse Matters Amount set forth in Buyer's
calculation, or (iii) withdraw Properties identified in the Election Notice from
the sale or exchange to Buyer; provided, however, that Transferors shall not be
permitted to withdraw any Property unless the Material Adverse Matters Amount
claimed by Buyer exceeds $200,000 with respect to such Property and exceeds
$375,000 with respect to all of the Properties (in which event Transferors, in
Transferors' discretion, may withdraw such Properties as to which Material
Adverse Matters Amounts are claimed until the claimed Material Adverse Matters
Amounts for the remaining Properties is less than or equal to $375,000). Any
Property identified as the subject of dispute under clause (i) above shall be
referred to as a "Deferred Property." Any Property withdrawn under clause (iii)
above shall be referred to as a "Deleted Property."
(e) If Transferors have elected to dispute the calculation of
any Material Adverse Matters Amounts under subsection (d)(i) above, such dispute
shall be submitted promptly to arbitration pursuant to Section 7.5 below. Buyer
and Transferors, respectively, shall remain fully obligated to purchase and sell
or exchange, as applicable, both the Deferred Properties and all other
Properties (excepting any Deleted Properties) on the terms and conditions set
forth in this Agreement, provided that (i) the Price payable on the Closing Date
applicable to all other Properties shall be reduced by the Allocated Price of
the Deferred Properties, (ii) the Closing Date with respect to the Deferred
Properties shall be deferred to that date ten (10) business days following the
issuance of a final decision in arbitration, (iii) an amount equal to five
percent (5%) of the Allocated Price for each Deferred Property shall be
9
13
retained by Title Company as a continuing Deposit subject to disposition in
accordance with Section 5.1 below as to such Deferred Property and (iv) the
Allocated Price with respect to each Deferred Property shall be subject to any
reduction determined in arbitration.
(f) Subject to the provisions of Section 2.8, if a Property
is designated as a Deleted Property, Buyer and Transferors, respectively, shall
have no further obligation to purchase or sell or exchange, as applicable, the
Deleted Properties, shall remain obligated to purchase or sell or exchange, as
applicable, all other Properties and the Price payable on the Closing Date
applicable to all other Properties shall be reduced by the Allocated Prices of
the Deleted Properties.
SECTION 2.6 Title Exceptions.
(a) Buyer acknowledges that prior to the date hereof,
Transferors have provided to Buyer access to copies of the Title Policies, as
well as copies of the exception documents referred to in the Title Policies and
copies of the Surveys of the Properties, to the extent such exceptions are in
Transferors' immediate possession. Buyer also acknowledges that Transferors have
requested Title Company to deliver to Buyer updated title reports to the Title
Policies, as well as copies of any exception documents relating to exceptions
that are reflected in such updates that have not otherwise been provided to
Buyer prior to the date hereof; provided that Transferors shall have no
liability hereunder if Buyer is unable to obtain copies of any such documents
and Buyer shall have no rights hereunder with respect thereto. Buyer may
continue to secure during the Confirmation Period any additional title or survey
updates desired by Buyer (and will use reasonable efforts to provide the copies
of such updates to Transferors promptly after receipt of same by Buyer). As used
herein, the term "Additional Exceptions" shall mean (i) any title exceptions or
survey exceptions or qualifications identified by Title Company that are not
within the definition of Permitted Exceptions, (ii) the items listed on Exhibit
G-2 to the extent they materially and adversely affect the use, occupancy or
value of a Property, provided that such items shall not be deemed to materially
and adversely affect the use, occupancy and value of a Property to the extent
Buyer has approved (or is deemed to have approved) exceptions on such Property
or other Properties which are substantially similar in all material respects,
(iii) matters shown on surveys described in the Exhibit G Title Policies (as
defined in Exhibit G) or, if such surveys cannot be located or otherwise
obtained, on new surveys obtained by Buyer, for the Properties identified on
Exhibit G-2 which were not shown on the surveys for such Properties delivered or
made available to Buyer, if applicable, and which materially and adversely
affect the use, occupancy or value of a Property, provided that such items shall
not be deemed to materially and adversely affect the use, occupancy and value of
a Property to the extent Buyer has approved (or is deemed to have approved) such
matters on such Property or other Properties which are substantially similar in
all material respects, and (iv) with respect to any Property as to which the
Title Company will not agree at least ten (10) business days prior to the end of
the Confirmation Period to issue a survey endorsement referring to the same
survey as is referenced in Transferors' most recent Exhibit G Title Policy (for
such Property), any variance established by Buyer from the legal descriptions
insured in Transferors' most recent Exhibit G Title Policies to the surveys
described in such Title Policies (other than variances relating to the Palm Aire
Additional Parcel (as such term is defined in Exhibit A) as previously disclosed
to Buyer or otherwise actually known to Buyer as of the date hereof). Buyer, in
any event, shall endeavor in good faith (but at no out-of-pocket cost to Buyer)
to cause the Title Company to
10
14
delete or insure over any Additional Exceptions to Buyer's reasonable
satisfaction prior to Buyer's expression of such matters in an Additional Title
Exception Notice (as described below). Buyer shall have the right to request
that the Title Company provide at Buyer's sole cost and expense any reinsurance
or endorsements Buyer shall reasonably request with respect to Permitted
Exceptions, Additional Exceptions or otherwise, provided that the issuance of
such reinsurance or endorsements shall not be a condition to or delay the
closing except as otherwise provided in this Agreement.
(b) Buyer shall have the right to deliver a notice to
Transferors identifying any Additional Exceptions (the "Additional Title
Exception Notice") by the earlier of (i) five (5) business days after Xxxxx
Xxxxxx becomes aware of the matter constituting an Additional Exception or (ii)
the close of the Confirmation Period. Buyer's failure to deliver any such notice
in timely fashion shall be deemed an approval of any such Additional Exceptions.
Buyer shall have no right to deliver an Additional Title Exception Notice
following the close of the Confirmation Period. If Buyer delivers an Additional
Title Exception Notice within such period, Buyer and Transferors shall promptly
attempt to agree upon the method or cost to cure or remove such Additional
Exception or, if not susceptible to cure or removal, an appropriate reduction in
the Allocated Price for the affected Property. If Transferors and Buyer are
unable to agree upon a resolution within five (5) business days following
Transferors' receipt of an Additional Title Exception Notice, Transferors shall
elect, at its option and by written notice given not later than the date of
Transferors' delivery of an Election Notice under Section 2.5(d) above, (i) to
terminate this Agreement with respect to the affected Property, in which event
such Property shall be treated as a Deleted Property or (ii) to submit the
existence of the Additional Exception, the character of a satisfactory cure or
the measure of appropriate price reduction to arbitration in accordance with the
terms of Section 7.5, in which case the Property shall be treated as a Deferred
Property. Notwithstanding the foregoing, Buyer shall not have the right to
object to any Additional Exception if Title Company is willing to affirmatively
insure or endorse over such Additional Exception at Transferors' expense, and
the Title Company is acting in a commercially reasonable manner in providing
such affirmative insurance or endorsement and Buyer reasonably approves the form
and substance of such affirmative insurance or endorsement.
(c) "Permitted Exceptions" shall include and refer to the
title exceptions set forth in Exhibit G attached hereto. Notwithstanding the
foregoing, Transferors shall remove or cause the Title Company to remove or,
except with respect to Deed of Trust Liens (as herein defined), endorse over by
endorsement reasonably satisfactory to Buyer, at Transferors' sole cost and
expense, on or prior to the Closing Date and there shall not be treated as
Permitted Exceptions: (i) any liens of any mortgages or deeds of trust securing
indebtedness of Transferors or its affiliates (collectively, "Deed of Trust
Liens") and any other liens for monetary obligations (including mechanic's
liens, but excluding (A) mechanic's liens filed by contractors or any other
parties which are working for tenants under Leases or for Transferors where the
obligation to pay such contractors or other parties is directly or indirectly an
obligation of such tenants (but only to the extent (x) such obligation is not
subject to reimbursement or payment by Transferors or its affiliates and (y)
such tenant has neither filed for protection under applicable bankruptcy laws
nor abandoned its premises) or which arise in connection with work as to which
Buyer is to receive a credit at the closing (but only to the extent of such
credit) or has agreed to assume the obligation which is the subject of such
lien, and (B) any other liens which, in the aggregate,
11
15
exceed Thirty-Five Thousand Dollars ($35,000) for a particular Property, which
arise following the date of Buyer's execution and delivery of this Agreement and
which were not created by or acquiesced in by Transferors, any affiliate of
Transferors, or any partner, member, officer, director, employee, agent or
representative of either such party) that are not assumed by Buyer (for such
purposes, all assessments collected with ad valorem real estate taxes and which
are paid in installments and are not delinquent as of the Closing Date shall be
assumed by Buyer (subject to the provisions of Section 6.3) and represent
Permitted Exceptions); provided, however, that with respect to any liens
identified in clause (B) above, (1) Transferors shall have the right, in
Transferors' sole discretion, to (x) remove or cause the Title Company to remove
or endorse over by endorsement reasonably satisfactory to Buyer, such lien at
Transferors' sole cost and expense on or prior to the Closing Date, or (y)
terminate this Agreement with respect to the affected property in which event
such Property shall be treated as a Deleted Property, and (2) such liens shall
not be Permitted Exceptions unless consented to by Buyer; and (ii) any title
matters created in violation of Transferors' covenant set forth in Section
4.2(e) below.
(d) Transferors shall have no obligation to execute any
affidavits or indemnifications in connection with the issuance of Buyer's title
insurance excepting only the affidavit attached hereto as Exhibit K and such
other customary affidavits as to authority, the rights of tenants in occupancy,
the status of mechanics' liens and other affidavits or indemnifications
reasonably necessary to address matters of title which Transferors are obligated
to remove or cure pursuant to this Section 2.6.
SECTION 2.7 Joint Venture Interests. Buyer acknowledges that the
Properties identified on Exhibit M attached hereto are owned by entities (each a
"Joint Venture") in which a Transferor and an unrelated third party (each, a
"Third Party" and collectively, the "Third Parties") own the beneficial
interests. If the consent or waiver of applicable Third Parties is not required
for a Transferor to sell or exchange a Property owned by a Joint Venture, then
Transferors shall cause the Property to be sold or exchanged by such Joint
Venture to Buyer. With respect to each Joint Venture where the consent or waiver
of a Third Party is required, Transferors shall, at Transferors' election made
in Transferors' sole discretion, attempt to either (i) obtain the consent of the
applicable Third Party to cause the Joint Venture to sell or exchange the
applicable Property to Buyer, or (ii) acquire the Third Party's interest in the
Joint Venture prior to or concurrent with the closing hereunder, to the extent
such purchase is permitted under the terms of the applicable Joint Venture's
operative agreement (or consented to by the Third Party) and thereafter cause
the Joint Venture to sell or exchange the applicable Property to Buyer.
Transferors shall not be required to expend any amounts to obtain the consent of
any Third Party pursuant to clause (i), but Transferors shall be required to
expend up to (but not more than) the net amount of the applicable Third Party's
proportionate share of the Allocated Price of the applicable Property based on
such Third Party's interest in the Joint Venture in order to acquire such Third
Party's interest pursuant to clause (ii) above. If Transferors are unable to
obtain a required consent or waiver from a Third Party to a sale of the Property
or acquire the Third Party's interest in such Joint Venture (after agreeing to
expend the amount set forth above), then this Agreement shall be terminated with
respect to the affected Property, in which event such Property shall be treated
as a Deleted Property.
SECTION 2.8 Reinstatement Right. Notwithstanding anything to the
contrary contained in this Agreement, if Transferors elect to treat a Property
as a Deleted Property under
12
16
Sections 2.5, 2.6 or 4.4 of this Agreement, Buyer shall have the right, by
providing Transferors with written notice given within three (3) business days
after receipt of Transferors' notice designating a Property as a Deleted
Property, to cause such Property to no longer be treated as a Deleted Property
and to purchase such Property in accordance with this Agreement, in which event
the specific condition giving rise to Transferors' treatment of such Property as
a Deleted Property shall be deemed waived by Buyer and Buyer shall not receive
any adjustment to the Allocated Price for such Property or have any right to
deliver a Claim Notice as a result of such condition.
ARTICLE 3
CONDITIONS PRECEDENT
SECTION 3.1 Conditions.
(a) Notwithstanding anything in this Agreement to the
contrary, Buyer's obligation to purchase a particular Property shall be subject
to and contingent upon the satisfaction or waiver of the following conditions
precedent with respect to such Property:
(i) The willingness, upon the sole condition of
the payment of any regularly scheduled premium, of the Title Company (or another
title insurance company reasonably satisfactory to Buyer) to issue Owner's
Policies of Title Insurance in the form of the Title Policy issued to the
applicable Transferor with respect to each Property in connection with the
initial public offering of the stock of the Company (as herein defined) ("IPO")
or, if no Title Policy was issued for a Property in connection with the IPO,
then the Title Policy issued upon the acquisition of the Property by the
applicable Transferor (or the party that contributed such Property to the
Transferor at the IPO (a "Contributor") (or such other form(s) as may be
reasonably satisfactory to Buyer)), and with all of the endorsements issued in
any Title Policy issued by the Title Company for a particular Property insuring
Buyer (or Buyer's permitted assignee or nominee) that title to the applicable
Real Property is vested of record in Buyer (or Buyer's permitted assignee or
nominee) on the Closing Date subject only to the printed conditions and
exceptions of such policies (but deleting (by endorsement or otherwise), where
permitted under applicable laws or regulations and at Buyer's expense, any
co-insurance, creditors rights and so-called "standard" exceptions) and the
Permitted Exceptions applicable to such Real Property. Transferors will
cooperate and use reasonable efforts (but at no out-of-pocket cost to
Transferors) to assist Buyer in obtaining all endorsements contained in the
Title Policies (whether issued in connection with the IPO or an acquisition).
Without limiting the foregoing, if the Title Company (and, to the extent
applicable, a different title insurance company if one other than the Title
Company previously issued any such endorsement) refuses to issue such
endorsement to Buyer at closing with respect to a matter insured against under
the Title Policies, upon request of Buyer, Transferors will assert a claim
against such insurer at Buyer's expense and direction with the goal of enabling
Buyer to obtain such endorsement from such title company. Nothing contained in
the second, third, or fourth sentence of this Section 3.1(a)(i) shall be
construed as expanding the provisions of the first sentence of this Section
3.1(a)(i) or Section 2.6 or be considered a condition to Buyer's obligation to
purchase any of the Properties and Transferors shall have no liability
whatsoever if they are unable to cause a title company to issue any such
endorsement;
13
17
(ii) With respect to a particular Property, such
Property has not been designated a Deleted Property pursuant to this Agreement;
and
(iii) Transferors' performance or tender of
performance of all material obligations under this Agreement with respect to the
applicable Property, including Transferors' covenants under Section 4.2 with
respect to such Property.
(b) Notwithstanding anything in this Agreement to the
contrary, Transferors' obligation to sell or exchange a particular Property or
all of the Properties, as the case may be, shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent:
(i) With respect to a particular Property, such
Property has not been designated a Deleted Property pursuant to this Agreement;
and
(ii) Buyer's performance or tender of performance
of all material obligations under this Agreement.
SECTION 3.2 Failure or Waiver of Conditions Precedent.
(a) If any of the conditions set forth in Section 3.1(a)(i)
or (iii) is not fulfilled or waived by Buyer with respect to a particular
Property, Buyer may, by written notice to Transferors, terminate this Agreement
with respect to the applicable Property and such Property shall be treated as a
Deleted Property. If the condition set forth in Section 3.1(b)(ii) is not
fulfilled or waived, Transferors may, by written notice to Buyer, terminate this
Agreement, whereupon all rights and obligations hereunder of each party shall be
at an end. Either party may, at its election, at any time or times on or before
the date specified for the satisfaction of the condition, waive in writing the
benefit of any of the conditions set forth in Section 3.1(a) and 3.1(b) above.
In any event, Buyer's consent to the close of escrow with respect to a Property
pursuant to this Agreement shall waive any remaining unfulfilled conditions for
the benefit of Buyer with respect to such Property.
(b) Notwithstanding the foregoing, if Buyer desires to
terminate this Agreement with respect to a Property based upon a failure of the
condition set forth in Section 3.1(a)(i) or (iii) above, Transferors shall have
a period of 30 days within which to cure such failure or, if such failure cannot
reasonably be cured within 30 days, an additional reasonable time period of up
to an additional 60 days (for a total of 90 days), so long as such cure has been
commenced within such 30 days and is at all times diligently pursued. If
Transferors have not cured such failure within such cure period then Buyer may
elect to terminate this Agreement with respect to the affected Property, in
which event such Property shall be treated as a Deleted Property.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIVES
SECTION 4.1 Transferors' Warranties and Representations. Each of
Transferors expresses to Buyer the representations and warranties set forth
below as of the date of this
14
18
Agreement, provided that each of such representations and warranties shall be
deemed expressly qualified by any information set forth on the Disclosure
Materials List & Statement or contained in the Disclosure Materials, and any
information set forth on the Disclosure Materials List & Statement or contained
in the Disclosure Materials shall be deemed an exception to each and all of
Transferors' representations and warranties set forth herein.
(a) Each of Transferors represents and warrants with
respect to itself as follows:
(i) The Transferor (and Transferor's general
partners, if Transferor is a limited partnership, and each of its constituent
members, if Transferor is a limited liability company) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and the Transferor is qualified to do business in each state in
which Real Property owned by such Transferor is located to the extent the
failure to so qualify would have a material and adverse effect on Transferor's
performance of its obligations under this Agreement. The Transferor has full
power and lawful authority to enter into and carry out the terms and provisions
of this Agreement and to execute and deliver all documents which are
contemplated by this Agreement, and all actions of the Transferor necessary to
confer such power and authority upon the persons executing this Agreement (and
all documents which are contemplated by this Agreement) on behalf of the
Transferor have been taken;
(ii) Except with respect to the third party
consents expressly described in or contemplated under this Agreement or
expressly required under any agreements included in Intangible Property,
including the consent of Third Parties, if required, the Transferor's execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the performance of the Transferor's obligations under
the instruments required to be delivered by the Transferor at the closing, do
not and will not require the consent, approval or other authorization of, or
registration, declaration or filing with, (collectively, "Consents") any
governmental authority (excepting the recordation of closing documents
contemplated in this Agreement and any filings required under applicable state
or federal securities or tax laws) or any other person or entity, except such
Consents as will be obtained on or before closing or as to which the failure to
obtain would not have a material and adverse effect on Transferor's performance
of its obligations under this Agreement, and do not and will not result in any
material violation of, or material default under, any term or provision of any
agreement, instrument, mortgage, loan agreement or similar document to which the
Transferor is a party or by which the Transferor is bound. Subject to the
foregoing, all partnership, limited liability company, board of directors and
shareholder approvals required for Transferor to enter into this Agreement and
to consummate the transactions described in this Agreement have been obtained;
(iii) There is no litigation, investigation or
proceeding pending or, to the best of the Transferor's knowledge, contemplated
or threatened against the Transferor which would impair or adversely affect the
Transferor's ability to perform its obligations under this Agreement or any
other instrument or document related hereto; and
(iv) The Transferor is not a "foreign person" as
defined in Internal Revenue Code 1445(f)(3).
15
19
(b) Each of Transferors represents and warrants as follows
with respect to each Property owned by such Transferor:
(i) As of the date of this Agreement, Transferor
has no knowledge that, and has received no written notice from any governmental
authorities that eminent domain proceedings for the condemnation of any Property
or any part of a Property are pending;
(ii) As of the date of this Agreement, Transferor
has no knowledge that, and has received no written notice of any threatened or
pending litigation against Transferor other than routine matters covered by
Transferor's insurance or other matters which would not materially and adversely
affect any Property;
(iii) As of the date of this Agreement, Transferor
has received no written notice from any governmental authority that the
improvements constituting any Property are presently in material violation of
any applicable building codes where such violation has not been cured in all
material respects;
(iv) As of the date of this Agreement, Transferor
has received no written notice from any governmental authority that any Property
is presently in material violation of any applicable zoning, land use or other
law, order, ordinance, rule or regulation affecting the Property which violation
has not been cured, that any investigation has been commenced or is contemplated
with respect to any such possible failure of compliance and Transferor has not
received written notice from any insurance company or Board of Fire Underwriters
any written notice of any defect or inadequacy in connection with a Property or
its operation where such defect or inadequacy has not been cured in all material
respects;
(v) There are no Contracts involving payment in
excess of $25,000 per annum with respect to any Property that will be binding
upon Buyer after the closing, other than such Contracts that are cancelable by
the owner of the Property within 30 days after written notice from such owner
without penalty or premium (other than penalties or premiums that will be paid
by Transferor on or before the closing);
(vi) As of the date of this Agreement, except as
set forth in the environmental reports included within the Disclosure Materials
and any reports or studies prepared by or for Buyer, Transferor has received no
written notice of the presence or release of any Hazardous Materials presently
deposited, stored, or otherwise located on, under, in or about any Property
which require reporting to any governmental authority or are otherwise not in
compliance with environmental laws, regulations and orders;
(vii) The Rent Rolls constituting Exhibit E to this
Agreement completely and accurately identify as to each Lease as of February 15,
1999: the expiration date of the current term of the Lease; the amount of any
security deposit held by Transferor; the current base rental payable under such
Lease and future rent escalations; the amount of additional rent (i.e., cost
recovery) currently billed to the tenant under the Lease; and the approximate
rentable area of the premises. As of February 15, 1999, each Lease identified on
the Rent Roll was, to the best of Transferor's knowledge, in full force and
effect and, to the best of Transferor's knowledge, Transferor was not in
material default thereunder. As of March 1,
16
20
1999, Transferor had not received written notice of any material default by
Transferor under any Leases, which default had not been cured in all material
respects, and Transferor has not delivered any default notice to a tenant under
any Lease and, to Transferor's knowledge and except as set forth in the
delinquency reports provided by Transferors to Buyer, Transferor was not aware
of any other default by a tenant under a Lease as to which default Transferor
would customarily have delivered a notice of default to such tenant but has not
done so, which defaults have not been cured in all material respects. Transferor
has delivered or made available to Buyer copies of all Leases of more than
14,000 square feet or any amendments thereto executed on or before the date of
this Agreement (other than the Leases with Petco and Michaels at Weslayan
Plaza);
(viii) As of the date of this Agreement, Transferor
has received no written notice that Transferor or any other party is in default
under any reciprocal easement agreement or declaration of covenants, conditions,
and restrictions or any other similar instrument or agreement affecting any of
the Properties (collectively, the "REAs"), which default has not been cured in
all Material respects;
(ix) Except with respect to rights of Third
Parties under the Joint Ventures, Transferor has not granted any option or right
of first refusal or first opportunity to acquire any fee or ground leasehold
estate of any portion of the Properties;
(x) As of the date of this Agreement, the
Financial Statements delivered to Buyer by Transferor are true and correct in
all material respects;
(xi) With respect to the matters contained in the
Disclosure Materials List & Statement and the Disclosure Materials, to
Transferor's knowledge, Transferor has not willfully and intentionally omitted
to state any material facts required to be stated therein or willfully and
intentionally made any untrue statement of a material fact, which would render
the Disclosure Materials List & Statement or the Disclosure Materials materially
misleading. Transferor has not willfully and intentionally failed to deliver or
make available to Buyer all of the following documents in Transferor's immediate
possession and has not instructed any third party not to deliver any such
documents to Buyer: (x) reports regarding the environmental condition of the
Properties or (y) reports obtained in connection with the acquisition of a
Property regarding the physical condition and legal compliance of such Property;
and
(xii) Transferor has taken the steps described on
Exhibit P attached hereto in an effort to cause all computer hardware and
software at each Property which is the direct responsibility of Transferor (and
not the responsibility of a tenant, vendor or other third party) and which
controls utility and other physical operating functions including, without
limitation, alarm and other security systems, irrigation systems, lighting
systems, health safety systems and similar functions (the "Owner's Computer
Systems"), to at all times hereafter provide the following functions: (a)
consistently handle date information before, during and after January 1, 2000
including, without limitation, accepting date input, providing date output and
performing calculations on dates or portions of dates; (b) function accurately
in accordance with the specifications for such computer hardware or software and
without interruption before, during and after January 1, 2000, without any
change in operations associated with the advent of the new century; (c) respond
to two digit date input in a way that resolves any ambiguity as to
17
21
century in a disclosed, defined and predetermined matter; and (d) store and
provide output data information in ways that are unambiguous as to century. To
Transferor's knowledge, as of the date of this Agreement, the cost to correct
any failure of the Owner's Computer Systems to provide the foregoing functions
would not be material (provided, that no representation or warranty is made with
respect to any such failure for reasons other than the advent of the new
century).
Subject to the provisions of Section 4.4, each of the Transferors shall
be jointly and severally liable for the breach of any representation and
warranty of a Transferor set forth in this Section 4.1.
* * * * *
For the foregoing purposes, the terms "Transferors' knowledge" or "Transferor's
knowledge" or words of similar effect shall mean the current actual, subjective
knowledge of Messrs. Xxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxx Xxxxx and Xxxxx Xxxxx
(collectively, the "Knowledge Persons"), in each case without independent
investigation or inquiry, but after inquiry of the current asset managers who
are employees of Transferors in its retail division. Such individuals' knowledge
shall not include information or material which may be in the possession of any
of the Transferors or the named individuals, but of which the named individuals
are not actually aware. Transferors shall have no liability for the breach of
any representations or warranties absent an arbitrated or judicial finding that
the named individuals knowingly withheld information from Buyer with respect to
the subject matter of the representation or warranty or falsified information
delivered to and relied upon by Buyer and that such action amounted to a
violation of a representation or warranty expressly set forth in this Agreement.
None of the named individuals whose sole knowledge is imputed to a Transferors
under this Section nor any party other than the Transferors affording a
representation shall bear responsibility for any breach of such representation.
SECTION 4.2 Transferors' Covenants. Transferors hereby covenants
and agrees as follows:
(a) During the Contract Period, Transferors will exercise
reasonable and good faith efforts (i) to operate and maintain the Properties in
a manner consistent with current practices and (ii) to comply, where such
compliance is the obligation of Transferors (and not of a tenant or other party)
in all material respects with all material laws and regulations applicable to
the Properties;
(b) During the Contract Period, Transferors will not sell
or otherwise dispose of any significant items of Personal Property unless
replaced with an item of like value, quality and utility;
(c) During the Contract Period, Transferors shall not enter
into or modify any Contracts relating to the operation or maintenance of a
Property, except for (i) those entered into in the ordinary course of business
with parties which are not affiliates of Transferors and (A) which are
cancelable upon not more than thirty (30) days prior notice without penalty or
premium or (B) which require payments to the applicable vendor of $25,000 or
less per year and
18
22
which, in the aggregate for any individual Property, require payments to the
applicable vendors of $50,000 or less per year, or (ii) those otherwise approved
by Buyer, which approval shall not be unreasonably withheld and shall be deemed
given if Buyer should fail to approve or disapprove proposed Contract matters in
writing within 5 business days following Transferor's written request (which
shall include all material information necessary to allow Buyer to make an
informed decision). At Buyer's written request provided at least five (5)
business days prior to the Closing Date, Transferors shall deliver notice of
termination on the Closing Date as to any and all Contracts that Buyer desires
to terminate, provided that such termination shall be effective following any
notice or waiting period for such termination described in the Contract and that
Transferors shall not be required to bear any termination or cancellation fee or
charge that may be assessed under such Contract based upon an early termination.
Notwithstanding the foregoing, Transferors shall terminate all property
management agreements and exclusive leasing agreements applicable to the
Properties as of the Closing Date, at Transferors' expense;
(d) During the Contract Period, Transferors will not
execute or modify in any material fashion any Leases pertaining to premises in
excess of 5,000 rentable square feet or any ground lease, other than with
Buyer's prior consent, which shall be deemed given if Buyer (in the person of
Xxxxxxx Pacific Properties, Inc.'s chief investment officer or chief operating
officer) should fail to approve or disapprove proposed lease matters in writing
within 5 business days following Transferors' written request (which shall
include all material information necessary to allow Buyer to make an informed
decision). Buyer shall exercise its rights of approval of leasing matters
reasonably and in good faith. With respect to new Leases or Lease amendments
pertaining to premises of 5,000 rentable square feet or less, Transferors shall
have the right to enter into new Leases or amendments without any need to obtain
Buyer's consent, provided that (A) such new Lease or amendment is entered into
on an arm's length basis and the applicable Transferors believes in its good
faith reasonable discretion that it is entering into such new Lease or
modification on market terms (B) such new Lease or amendment does not provide
for a cap on the pass through of cost recoveries or exclude the recovery of
management fees, (C) such new Lease or amendment does not contain a material
change to the assignment provision of Transferors' standard lease form in use at
the applicable Property (the "Standard Form"), (D) with respect to a new Lease,
Transferors initiated negotiations with such tenant using the Standard Form and
any changes thereto are consistent with Transferors' standard leasing practices,
and (E) Buyer is provided with a copy of the executed Lease or modification
documents within a reasonable period after such documents are executed.
Transferors shall use reasonable efforts to continue to seek leases for the
Properties in a manner consistent with present practice;
(e) During the Contract Period, except with respect to
actions taken by Third Parties without the applicable Transferor's consent in
connection with Joint Venture Properties, Transferors shall not voluntarily
create, consent to or acquiesce in the creation of liens or exceptions to title
without Buyer's prior written consent, provided that Buyer shall not
unreasonably withhold or delay consent to any proposed matters affecting title
necessary to maintain or enhance the value of the pertinent Property;
(f) During the Contract Period, Transferors shall maintain
its currently effective policies of property insurance and rental loss insurance
for the Improvements;
19
23
(g) During the Contract Period, Transferors shall use
commercially reasonable efforts (but at no material cost to Transferors except
as may otherwise be expressly provided in this Agreement) to obtain all third
party and governmental approvals and consents necessary to consummate the
transactions contemplated hereby;
(h) During the Contract Period, Transferors shall maintain
their books accounts and records in a manner consistent with past practice;
(i) During the Contract Period, Transferors shall observe
and comply with the material terms and conditions of all Contracts, Leases,
Property licenses, and Property approvals;
(j) During the Contract Period, Transferors shall not
knowingly and intentionally take any action which would cause the
representations and warranties contained in Section 4.1 (other than as permitted
in this Agreement) to cease to be true and correct in all material respects as
of the Closing Date as though then made;
(k) During the Contract Period, Transferors shall comply in
all material respects with all existing easements, covenants, conditions,
restrictions and other encumbrances affecting any Property;
(l) During the Contract Period, Transferors shall
reasonably cooperate with Buyer, but at no cost to Transferors, (i) to assist
Buyer in obtaining environmental insurance coverage for the Properties
(provided, that in no event shall Buyer have the right to perform any
environmental testing in connection with obtaining such insurance) and (ii) to
enable Buyer to exercise and close on the Applewood Option (as defined in the
Disclosure Materials List & Statement) and, at Buyer's written request, with
respect to any other similar options or rights described on Exhibit V attached
hereto, as soon as possible after the closing, provided such option(s) shall not
be exercised or caused to be exercised by Buyer prior to the closing and
Transferors shall not be required to exercise such option(s) prior to the
closing);
(m) During the Contract Period, but subject to the
provisions of Sections 2.4 and 2.5, Transferors shall permit Buyer, and Buyer's
lenders and its representatives, to have reasonable access (upon reasonable
notice, during normal business hours and, if required by Transferors,
accompanied by a representative of Transferors) to the books, records and
Properties, and, with Transferors' prior approval not to be unreasonably
withheld, tenants, parties to REAs, parties to options and rights of first
refusal, and parties to management agreements and Contracts, in order to assist
Buyer in its management transition with respect to the Properties and to provide
information to its lenders that is reasonably requested by them;
(n) As a courtesy to Buyer, during the Contract Period,
Transferors shall use reasonable efforts to provide Buyer with copies of any
written notices received by Transferors during the Contract Period, which
notices relate to matters described in Section 4.1(b)(i), (ii), (iii), (iv),
(vi), (vii) or (viii); provided, that notwithstanding anything to the contrary
contained in this Agreement, Transferors shall have no liability whatsoever to
Buyer as a result of its failure to comply with the provisions of this Section
4.2(n);
(o) During the Contract Period, Transferors shall provide
reasonable access to the Disclosure Materials (upon reasonable notice and during
normal business hours) and the right
20
24
to copy such materials (at no cost to Transferors) in order to assist Buyer in
its management transition with respect to the Properties and to provide
information to its lenders that is reasonably requested by them;
(p) During the Contract Period, Transferors shall meet and
confer with Buyer on a regular basis to discuss leasing activity at the
Properties and the status of work described in Section 6.9 and shall provide
Buyer at such meetings or otherwise reasonably detailed information regarding
the costs incurred with respect to, and the costs anticipated to complete, such
work;
(q) During the Contract Period, Transferors shall notify
Buyer of any litigation filed against Transferors during the Contract Period
within a reasonable period of time after Transferors are made aware of such
litigation and Exhibit W shall be revised to include such litigation; and
(r) During the Contract Period, to the extent Transferors
have a right of first offer or right of first refusal to purchase any real
property related to any of the Properties and Transferors receive written notice
that the period for exercising such right has commenced, Transferors shall
promptly notify Buyer and Buyer shall have the right, by written notice to
Transferors, to request that at closing Transferors assign such right to Buyer
(if assignable) or use reasonable efforts to cause the applicable property to be
direct deeded to Buyer; provided, that in no event shall Transferors have any
liability or incur any cost with respect to such property or be required to take
title to such property, and Buyer shall deliver to Title Company at the times
required in connection with such right to purchase, and remain responsible for,
any funds to be paid in connection with the acquisition of such property.
SECTION 4.3 Buyer's Warranties and Representations. Buyer hereby
represents and warrants to Transferors that the following are true as of the
date of this Agreement:
(a) Buyer is a duly formed and validly existing limited
liability company under the law of the state of its formation and is (or on the
Closing Date will be) in good standing under the laws of the states where each
Property is located and Buyer has the full right, authority and power to enter
into this Agreement, to consummate the transactions contemplated herein and to
perform its obligations hereunder and under those documents and instruments to
be executed by it at the closing, and each of the individuals executing this
Agreement on behalf of Buyer is authorized to do so, and this Agreement
constitutes a valid and legally binding obligation of Buyer enforceable against
Buyer in accordance with its terms.
(b) Buyer's execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance of
Buyer's obligations under the instruments required to be delivered by Buyer at
the closing, do not and will not result in any material violation of, or
material default under, any term or provision of any agreement, instrument,
mortgage, loan agreement or similar document to which Buyer is a party or by
which Buyer is bound.
(c) There is no litigation, investigation or proceeding
pending or, to the best of Buyer's knowledge, contemplated or threatened against
Buyer which would impair or
21
25
adversely affect Buyer's ability to perform its obligations under this Agreement
or any other instrument or document related hereto.
SECTION 4.4 Survival/Limitations.
(a) Subject to subsection (b) below, the parties agree that
Transferors' warranties and representations contained in Sections 4.1 (a) and
(b) of this Agreement shall survive Buyer's purchase of the Properties and the
Closing Date for a period ending 180 calendar days following the Closing Date
(the "Limitation Period"). Such termination as of the close of the Limitation
Period shall apply to known as well as unknown breaches of such warranties or
representations. Subject to subsection (b) below, Buyer's waiver and release set
forth in Section 2.4 shall apply fully to liabilities under such representations
and warranties. Buyer specifically acknowledges that such termination of
liability represents a material element of the consideration to Transferors.
(b) Any claim of Buyer based upon a breach of any
representation or warranty or covenant or a claim under any indemnity contained
in this Agreement or any representation, warranty, covenant or indemnity
contained in any other document or instrument delivered by Transferors to Buyer
at closing (collectively a "Breach") shall be expressed, if at all, in writing
setting forth in reasonable detail the basis and character of the claim (a
"Claim Notice"), and, in the case of a Breach of Transferors' representations
and warranties contained in this Agreement or a Breach of a covenant contained
in Section 4.2 hereof only, shall be delivered to Transferors prior to the
expiration of the Limitation Period. Notwithstanding the foregoing, Buyer's
right to make and recover any claim pursuant to a Claim Notice shall be subject
to the following: (i) any matters identified by Buyer during the Confirmation
Period which would represent both a breach of representation and result in a
Material Adverse Matters Amount shall be treated solely as the latter and shall
not be the subject of any claim for breach of representation under this Article
IV, (ii) with respect to a Breach of Transferors' representations and warranties
contained in this Agreement, or a Breach of a covenant contained in Section 4.2
hereof or a Breach under an indemnity contained in the Assignments of
Intangibles or the Assignments of Leases (as such terms are defined in Section
6.1(a) below), Buyer shall not make any claim on account of such Breach unless
and until (A) the aggregate measure of such claims with respect to a Property
exceeds $200,000, and (B) the aggregate measure of such claims with respect to
all of the Properties exceeds $375,000 (the "Threshold"), in which event Buyer's
claim shall be limited to an amount equal to (x) the amount by which such
aggregate exceeds the Threshold, plus (y) an amount equal to two-thirds of the
Threshold, (iii) Transferors' aggregate liability for claims arising out of all
Breaches (i.e., those described in clause (ii) above as well as all other
Breaches) shall not, in the aggregate, exceed an amount equal to three percent
(3%) of the aggregate Price for all of the Properties acquired by Buyer
exclusive of the amounts of any insurance proceeds actually received by
Transferors which are to be applied to Claims pursuant to Section 2.4(e), and
(iv) Buyer shall have the right to deliver to Transferors Claim Notices with
respect to any Breach discovered by Buyer prior to the Closing Date solely if
such notice is delivered prior to the Closing Date. Notwithstanding the
foregoing, with respect to a Claim Notice asserting a breach of the
representation contained in Section 4.1(b)(vii), the following shall be
substituted for the provisions of clause (ii) of this Section 4.4(b): (ii) Buyer
shall not make any claim on account of a breach of the representation and
warranty contained in Section 4.1(b)(vii) with respect to any Property unless
and until the aggregate measure of such claims with respect to all
22
26
Properties exceeds $50,000, and only to the extent that such aggregate exceeds
$50,000. For purposes of this Section 4.4(b) (and without limiting the
introductory paragraph of Section 4.1), a Breach shall be deemed to be
discovered by Buyer prior to the Closing Date only to the extent that any of
Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxx
or Xxx Xxxxxxxx has actual, subjective knowledge of the facts or circumstances
giving rise to such breach of representation or warranty or Section 4.2
covenants. Following receipt of such a pre-closing Claim Notice with respect to
which Buyer has the right to make and recover a claim as aforesaid, Transferors
may elect, by written notice to Buyer given not later than the first to occur of
the date that is ten (10) business days following the date of the Claim Notice
or the Closing Date, to terminate this Agreement as to the Property to which
such pre-closing Claim Notice relates and such Property shall be treated as a
Deleted Property and Buyer shall not be entitled to any damages in connection
therewith. If Transferors fail to elect to treat any Property which is the
subject of a pre-closing Claim Notice as a Deleted Property, the closing as to
such Property shall be conducted on the Closing Date. As to pre-closing Claim
Notices with respect to which Transferors do not elect to treat the affected
Property as a Deleted Property and as to all Claim Notices received by
Transferors following the Closing Date as to which Buyer has the right to make
and recover a claim as aforesaid, Buyer shall have the right after (but not
before) the Closing Date to proceed against Transferors for actual monetary
damages based upon such Claim Notice -- subject to the cure rights set forth in
subparagraph (c) below and the limitations set forth above and in the remaining
sentences of this subparagraph. Notwithstanding anything to the contrary
provided in this Agreement, in no event shall Transferors be liable to Buyer for
any consequential or punitive damages based upon any breach of this Agreement,
including breaches of representation or warranty. Subject to applicable
principles of fraudulent conveyance, in no event shall Buyer seek satisfaction
for any obligation from any shareholders, officers, directors, employees,
agents, legal representatives, successors or assigns of such trustees or
beneficiaries, nor shall any such person or entity have any personal liability
for any such obligations of any Transferors.
(c) The Transferors who have committed a Breach for which a
Claim Notice has been received shall have a period of 30 days within which to
cure such breach, or, if such breach cannot reasonably be cured within 30 days,
an additional reasonable time period of up to an additional 60 days, so long as
such cure has been commenced within such 30 days and is at all times diligently
pursued. If the Breach is not cured after actual written notice and within such
cure period, Buyer's sole remedy shall be an action at law for damages against
the breaching Transferor or Transferors, which must be commenced with respect to
a Breach of a representation or warranty contained in this Agreement or a Breach
of a covenant contained in Section 4.2 hereof, if at all, within the Limitation
Period; provided, however, that if within the Limitation Period Buyer gives a
Claim Notice and the Transferors commence to cure and thereafter terminate such
cure effort or fail in such cure effort, Buyer shall have an additional 30 days
from the date of written notice from the Transferors of such termination or the
expiration of such cure period within which to commence an action at law for
damages as a consequence of the failure to cure. The existence or pendency of
such cure rights shall not delay the Closing Date as to a Property not
designated as a Deleted Property. The provisions of this Section 4.4 shall
survive the closing or any termination of this Agreement.
23
27
ARTICLE 5
DEPOSIT; DEFAULT
SECTION 5.1 Buyer's Default & Deposit.
(a) Substantially concurrently with the execution and
delivery of this Agreement, Buyer shall deliver to Title Company, for deposit
into the escrow described in Section 6.1 below, cash in an amount equal to Five
Million Dollars ($5,000,000), which amount shall be increased on April 30, 1999
by an additional One Million Two Hundred Fifty Thousand Dollars ($1,250,000),
and which amount shall be further increased on July 31, 1999 by an additional
One Million Five Hundred Thousand Dollars ($1,500,000) (collectively, the
"Deposit"). In the event that this transaction is consummated as contemplated by
this Agreement, then the entire amount of the Deposit, together with any
interest accrued thereon, whether in cash or in the form of a Letter of Credit
(as herein defined) shall be returned to Buyer and in no event shall the Deposit
be credited against the Price. The entire amount of the Deposit (or the portion
of the Deposit allocable to Properties with respect to which Transferors refuse
to perform their material closing obligations), together with any interest
accrued thereon, shall be returned immediately to Buyer in the event that the
transaction fails to close due to termination of this Agreement pursuant to
Section 5.2. IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHOULD
FAIL TO CLOSE AS A RESULT OF BUYER'S DEFAULT HEREUNDER, THE ENTIRE AMOUNT OF THE
DEPOSIT, PLUS ACCRUED INTEREST, (AND TO THE EXTENT THE DEPOSIT IS IN THE FORM OF
A LETTER OF CREDIT, TITLE COMPANY SHALL IMMEDIATELY MAKE DEMAND FOR THE
PRINCIPAL AMOUNT OF THE LETTER OF CREDIT) SHALL BE PAID BY THE TITLE COMPANY TO
TRANSFERORS AS LIQUIDATED DAMAGES (THE "LIQUIDATED AMOUNT"). BUYER AND
TRANSFERORS HEREBY ACKNOWLEDGE AND AGREE THAT TRANSFERORS' DAMAGES IN THE EVENT
OF SUCH A BREACH OF THIS AGREEMENT BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS ACCRUED INTEREST IS THE PARTIES'
BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES TRANSFERORS WOULD SUFFER IN THE
EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND THAT
SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT. BUYER AND TRANSFERORS AGREE THAT TRANSFERORS' RIGHT TO RETAIN THE
DEPOSIT PLUS ACCRUED INTEREST SHALL BE THE SOLE REMEDY OF TRANSFERORS IN THE
EVENT OF A BREACH OF THIS AGREEMENT BY BUYER.
ACCEPTED AND AGREED TO:
______________________ __________________________
BUYER'S INITIALS TRANSFEROR'S INITIALS
This Section 5.1 is intended only to liquidate and limit Transferors' rights to
damages arising due to Buyer's failure to purchase the Properties and shall not
limit the indemnification or other obligations of (i) Buyer's constituent
partners pursuant to the Confidentiality Agreement dated January 25, 1999
executed by Xxxxxxx Pacific Properties, Inc. for the benefit of Transferors (the
24
28
"BP Confidentiality Agreement") and the Confidentiality Agreement dated January
25, 1999 executed by the State of California Public Employees' Retirement System
("Calpers") for the benefit of Transferors (the "Calpers Confidentiality
Agreement;" which, together with the BP Confidentiality Agreement, are
collectively referred to as the "Confidentiality Agreements") or (ii) Buyer
pursuant to (A) any other documents delivered pursuant to this Agreement or (B)
Sections 2.4(b), 2.4(e), 7.2, 7.9 and 7.13 of this Agreement. In the event that
any Property becomes a Deleted Property pursuant to the provisions of this
Agreement, then Buyer shall have the right to cause Title Company to withdraw
from the escrow and pay to Buyer (or to reduce any letter of credit, as
applicable, by) an amount equal to the product of (x) the Deposit (and interest
accruing thereon) and (y) the quotient expressed as a percentage, of the
Allocated Price with respect to such Deleted Property and the total Price.
(b) In the event that Transferors are entitled to the
Deposit pursuant to Section 5.1 hereof, an amount equal to the lesser of (i) the
Liquidated Amount or (ii) the sum of (A) the maximum amount that can be paid to
Transferors without causing Transferors (or any of their constituent partners)
to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the
Code, determined as if the payment of such amount did not constitute income
described in Section 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code
("Qualifying Income"), as determined by Transferors' accountants, plus (B) in
the event Transferors receive either (x) a letter from Transferors' counsel
prior to the Closing Date indicating that Transferors (or their constituent
partners, as applicable) has received a ruling from the Internal Revenue Service
(the "IRS") described in clauses (ii) or (iii) of the following paragraph, or
(y) an opinion from Transferors' (or their constituent partners', as applicable)
counsel as described in clause (iv) of the following paragraph, an amount equal
to the Liquidated Amount less the amount payable under clause (A) above, and any
balance of the Liquidated Amount (the "Balance") shall be retained by Title
Company in escrow in accordance with the terms of an escrow (subject to the
terms of the following paragraph) being otherwise agreed upon by Transferors and
the escrow agent.
(c) The escrow agreement described in Section 5.1(b) shall
provide that the amount in escrow or any portion thereof shall not be released
to Transferors except to the extent the escrow agent receives any one or
combination of the following: (i) a letter from Transferors' accountants
indicating the maximum amount that can be paid by the escrow agent to
Transferors without causing Transferors (or any of their constituent partners,
as applicable) to fail to meet the requirements of Sections 856(c)(2) and
856(c)(3) of the Code, determined as if the payment of such amount did not
constitute Qualifying Income, in which case the escrow agent shall release the
amount indicated in such letter to Transferors, (ii) a letter from Transferors'
(or any of their constituent partner's, as applicable) counsel indicating that
Transferors (or any of its constituent partners, as applicable) received a
ruling from the IRS holding that the receipt by Transferors (or any of their
constituent partners, as applicable) of the Liquidated Amount would either
constitute Qualifying Income or would be excluded from gross income within the
meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the
escrow agent shall release the Balance to Transferors, (iii) a letter from
Transferors' (or any of their constituent partners' as applicable) counsel
indicating that Transferors (or any of their constituent partners, as
applicable) received a ruling from the IRS holding that the receipt by a
Transferor (or
25
29
its constituent partner, as applicable) of the Balance following the receipt of
and pursuant to such ruling would not be deemed constructively received prior
thereto or (iv) an opinion of a Transferor's (or its constituent partner's, as
applicable) legal counsel to the effect that the receipt by a Transferor (or its
constituent partner, as applicable) of the Liquidated Amount would either
constitute Qualifying Income or would be excluded from gross income within the
meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the
escrow agent shall release the Balance to Transferors. Buyer and Title Company
agree to act reasonably and cooperate with Transferor in order (x) to maximize
the portion of the Liquidated Amount that may be distributed to Transferors
hereunder without causing a Transferor (or its constituent partner, as
applicable) to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3)
of the Code or (y) to improve a Transferor's (or any of their constituent
partner's, as applicable) chances of securing a favorable ruling described in
this Section 5.1(c), provided that, except as otherwise provided in this
Agreement, Buyer and Title Company shall not be required to incur any
out-of-pocket costs in connection therewith. The escrow agreement shall also
provide that any portion of the Liquidated Amount then held in escrow after the
expiration of five (5) years from the date of the establishment of such escrow
shall be released by the escrow agent to Buyer. Buyer shall not be a party
(other than a contingent beneficiary as described above) to such escrow
arrangements and shall not bear any cost of or have liability resulting from
such escrow arrangements.
SECTION 5.2 Transferors' Default. If (a) the conditions precedent
set forth in Section 3.1(b) shall have been satisfied or waived (provided that
for purposes of this Section Buyer shall not be required to tender formally the
Price but only demonstrate the commitment of immediately available funds to pay
such Price) and (b) Transferors shall refuse to perform their material closing
obligations under this Agreement (e.g., by refusing to convey a Property to
Buyer at Closing), then Buyer's sole and exclusive remedy shall be either (i) to
receive back the Deposit in the event Transferors refused to perform their
material closing obligations with respect to all of the Properties (or the
portion of the Deposit allocable to Properties with respect to which Transferors
refuse to perform their material closing obligations) plus all accrued interest
thereon or (ii) to pursue an action for specific performance on a Property by
Property basis as to those Properties with respect to which Transferors refuse
to perform their material closing obligations ; provided, that notwithstanding
anything to the contrary contained herein, Buyer's right to pursue an action for
specific performance is expressly conditioned on Buyer not being in default or
having defaulted in any material respect under any other material agreement in
which Buyer or any of its constituent members and any of the Transferors is a
party and which was entered into on or after March 1, 1999. Subject to the
foregoing, Buyer acknowledges that Buyer's remedies for Transferor's failure to
perform all of its material obligations under this Agreement with respect to the
sale or exchange of a particular Property but less than all of the Properties
shall be exclusively governed by the provisions of Section 3.2 above. Nothing
contained in this Section 5.2 is intended to limit Buyer's rights under Sections
7.2, 7.9 and 7.13 of this Agreement.
SECTION 5.3 Solicitation; Negotiations.
(a) Unless and until this Agreement shall have been
terminated in accordance with its terms, the Transferors agree and covenant that
(i) neither Transferors nor any of their respective subsidiaries or affiliates
nor AMB Property Corporation, a Maryland corporation, which is AMBLP's general
partner (the "Company"), shall, and each of them shall direct and use their best
efforts to cause their respective officers, directors, employees, agents and
representatives (including, without limitation, any investment banker, attorney
or accountant retained by it or any of its subsidiaries) not to, directly or
indirectly, initiate, solicit or encourage
26
30
any inquiries or the making or implementation of any proposal or offer with
respect to a merger, acquisition, or similar transaction involving the direct or
indirect purchase of the Properties (any such proposal or offer being
hereinafter referred to as an "Acquisition Proposal") or engage in any
negotiations with, or provide any confidential information or data to, or have
any discussions with, any person relating to, an Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal.
(b) Notwithstanding anything set forth in this Agreement to
the contrary, the Board of Directors of the Company may furnish information to
or enter into discussions or negotiations with any person that makes an
unsolicited bona fide proposal to purchase all or a portion of the Properties
having aggregate Allocated Price of at least eighty-five percent (85%) of the
aggregate Price of all of the Properties, whether by merger, purchase of
partnership interests or assets or otherwise (a "Proposal"), if the Board of
Directors of the Company determines in good faith that the Proposal, if
consummated as proposed, would result in a transaction more favorable to the
Company's stockholders from a financial point of view than the transactions
contemplated by this Agreement (any such Proposal being referred to herein as a
"Superior Proposal"). If the Board of Directors of the Company is prepared to
accept the Superior Proposal, then Transferors shall have the right to terminate
this Agreement by giving Buyer 48 hours notice that the Board of Directors is
prepared to accept the Superior Proposal, instructing the Title Company to
return the Deposit to Buyer and in addition paying Buyer a termination fee in
the amount of the then current Deposit (as increased or decreased from time to
time pursuant to this Agreement) (excluding the amount of any remaining Deposit
allocable to any Properties which were previously designated as Deleted
Properties) (the "Termination Fee"). The return of the Deposit (and all interest
accrued thereon) and the additional payment of the Termination Fee shall be
Buyer's sole and exclusive remedy in the event of a termination pursuant to this
Section 5.3
(c) In addition to the provisions set forth in Sections
5.3(a) and 5.3(b) hereof, nothing in this Agreement shall be deemed to prevent
in any manner the taking of any action by the Company with respect to any
merger, consolidation or sale of all or substantially all of the assets of the
Company or any of the Transferors, in the event that the Board of Directors of
the Company shall determine, based on advice of outside legal counsel, that the
failure to take such action would be inconsistent with such Board of Directors'
fiduciary duties to the Company's stockholders under applicable law. In the
event that such action would be inconsistent with the transactions contemplated
hereby, then Transferors shall have the right to terminate this Agreement by
giving Buyer 48 hours notice that such Board of Directors is prepared to take
such action, instructing the Title Company to return the Deposit to Buyer and in
addition paying Buyer the Termination Fee. The return of the Deposit and the
additional payment of the Termination Fee shall be Buyer's sole and exclusive
remedy in the event of a termination pursuant to this Section 5.3.
(d) In the event that Transferors are obligated to pay
Buyer the Termination Fee, Transferors shall pay to Buyer an amount equal to the
lesser of (i) the Termination Fee or (ii) the sum of (A) the maximum amount that
can be paid to Buyer without causing Buyer (or any of its members) to fail to
meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code,
determined as if the payment of such amount did not constitute income described
in Section 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying
Income"), as determined
27
31
by Buyer's accountants, plus (B) in the event Buyer receives either (x) a letter
from Buyer's counsel prior to the Closing Date indicating that Buyer (or its
members, as applicable) has received a ruling from the Internal Revenue Service
(the "IRS") described in clauses (ii) or (iii) of the following paragraph, or
(y) an opinion from Buyer's (or its member's, as applicable) counsel as
described in clause (iv) of the following paragraph, an amount equal to the
Termination Fee less the amount payable under clause (A) above, and any balance
of the Termination Fee (the "Balance") shall be deposited by Transferors in
escrow in accordance with the next succeeding sentence with the Title Company or
other escrow agent selected by Buyer and reasonably acceptable to Transferors.
Transferors shall deposit into such escrow an amount in immediately available
federal funds equal to the Balance, with the terms of such escrow (subject to
the terms of the following paragraph) being otherwise agreed upon by Buyer and
the escrow agent. All payments by Transferors pursuant to this paragraph shall
be made by wire transfer or bank check within thirty (30) days after demand by
Buyer. Payment to Buyer of the amounts set forth in this Section 5.3(d) and, if
applicable, deposit into escrow of the Balance, shall satisfy Transferors'
obligations in full under the terms and conditions of this Section 5.3.
(e) The escrow agreement described in Section 5.3(d) shall
provide that the amount in escrow or any portion thereof shall not be released
to Buyer except to the extent the escrow agent receives any one or combination
of the following: (i) a letter from Buyer's accountants indicating the maximum
amount that can be paid by the escrow agent to Buyer without causing Buyer (or
its member, as applicable) to fail to meet the requirements of Sections
856(c)(2) and 856(c)(3) of the Code, determined as if the payment of such amount
did not constitute Qualifying Income, in which case the escrow agent shall
release the amount indicated in such letter to Buyer, (ii) a letter from Buyer's
(or its member's, as applicable) counsel indicating that Buyer (or its member,
as applicable) received a ruling from the IRS holding that the receipt by Buyer
(or its member, as applicable) of the Termination Fee would either constitute
Qualifying Income or would be excluded from gross income within the meaning of
Sections 856(c)(2) and 856(c)(3) of the Code, in which case the escrow agent
shall release the Balance to Buyer, (iii) a letter from Buyer's (or its
member's, as applicable) counsel indicating that Buyer (or its member, as
applicable) received a ruling from the IRS holding that the receipt by Buyer (or
its member, as applicable) of the Balance following the receipt of and pursuant
to such ruling would not be deemed constructively received prior thereto or (iv)
an opinion of Buyer's (or its member's, as applicable) legal counsel to the
effect that the receipt by Buyer (or its member, as applicable) of the
Termination Fee would either constitute Qualifying Income or would be excluded
from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the
Code, in which case the escrow agent shall release the Balance to Buyer.
Transferors agree to act reasonably and cooperate with Buyer in order (x) to
maximize the portion of the Termination Fee that may be distributed to Buyer
hereunder without causing Buyer (or its member, as applicable) to fail to meet
the requirements of Sections 856(c)(2) and 856(c)(3) of the Code or (y) to
improve Buyer's (or its member's, as applicable) chances of securing a favorable
ruling described in this Section 5.3(e), provided that Transferors shall not be
required to incur any out-of-pocket costs in connection therewith. The escrow
agreement shall also provide that any portion of the Termination Fee then held
in escrow after the expiration of five (5) years from the date of the
establishment of such escrow shall be released by the escrow agent to
Transferors. Transferors shall not be a party (other than a contingent
beneficiary as described above) to such escrow arrangements and shall not bear
any cost of or have liability resulting from such escrow arrangements.
28
32
SECTION 5.4 Letter of Credit. In lieu of depositing the Deposit in
cash pursuant to this Agreement, or after depositing the Deposit in cash, in
substitution for all or any portion of the cash Deposit, Buyer may deliver to
Title Company an unconditional and irrevocable letter of credit in favor of
Title Company, in form reasonably satisfactory to Transferors and Title Company,
drawn upon a state or national bank reasonably approved by Transferors and Title
Company, which letter of credit shall (i) expire no earlier than fifteen (15)
days after the scheduled Closing Date (as such date may be changed with respect
to all of the Properties or a particular Property pursuant to this Agreement),
(ii) be capable of being drawn on by Title Company upon demand (subject to
customary draw procedures and requirements) and (iii) otherwise be in form and
substance reasonably satisfactory to Transferors and Title Company (the "Letter
of Credit"). The Letter of Credit shall secure the faithful performance and
observance by Buyer of the terms, provisions, and conditions of this Agreement
in the same manner and to the same extent as the Deposit. The Letter of Credit
shall be held and disbursed by Title Company in the same manner as the Deposit,
except that:
(a) if the term of the Letter of Credit will expire prior
to the then scheduled Closing Date (as such date may be changed with respect to
all of the Properties or a particular Property pursuant to this Agreement), and
such Letter of Credit is not extended or a new Letter of Credit for an extended
period of time is not substituted within five (5) business days prior to the
expiration date of the Letter of Credit, then Title Company shall make demand
for the principal amount of the Letter of Credit prior to the expiration date of
the Letter of Credit and hold such funds in the same manner as the Deposit
pursuant to this Agreement;
(b) if Title Company continues to hold the Letter of Credit
at closing and the closing occurs as contemplated by this Agreement, subject to
(c) below such Letter of Credit shall be returned to Buyer at closing; and
(c) in any instance in which a portion of the Deposit is to
be returned to Buyer pursuant to this Agreement or in which a closing occurs and
subsequent closings are contemplated due to the deferral of the closing with
respect to one or more of the Properties and in order to do so the amount of the
Letter of Credit would have to be reduced, the Title Company shall continue to
hold the Letter of Credit in the manner set forth in and subject to the
provisions of this Section 5.4 until Buyer has provided a substitute Letter of
Credit in the amount of the Deposit as so reduced.
ARTICLE 6
CLOSING
SECTION 6.1 Escrow Arrangements. One or more escrows (to the extent
more than one escrow is necessary to accommodate Transferors' 1031 Exchange(s))
for the purchase and sale contemplated by this Agreement shall be opened by
Buyer and Transferors with Title Company. At least one business day prior to the
Closing Date, Transferors and Buyer shall each deliver escrow instructions to
Title Company consistent with this Article VI, and designating Title Company as
the "Reporting Person" for the transaction pursuant to Section 6045(e) of the
Code. By signing below, Title Company agrees to act as the "Reporting Person"
for the transaction pursuant to Section 6045(e) of the Code and to complete and
file with the IRS Forms 1099-S (and furnish Buyer and Transferors with copies
thereof) on or before the due date therefor. In
29
33
addition, the parties shall deposit in escrow, at least one business day prior
to the Closing Date (unless otherwise provided below in this Section 6.1) the
funds and documents described below:
(a) Transferors shall deposit (or cause to be deposited):
(i) a duly executed and acknowledged deed
pertaining to the Real Property portion of each of the Properties, each in the
form attached to this Agreement as Exhibit I-A (collectively, the "Deeds");
(ii) a duly executed xxxx of sale pertaining to
the Personal Property portion of each of the Properties, each in the form
attached to this Agreement as Exhibit I-B (collectively, the "Bills of Sale");
(iii) a duly executed counterpart assignment and
assumption pertaining to the Intangible Property portion of each of the
Properties, each in the form attached to this Agreement as Exhibit I-C
(collectively, the "Assignments of Intangibles");
(iv) a duly executed counterpart assignment and
assumption pertaining to the Leases, each in the form attached to this Agreement
as Exhibit I-D (collectively, the "Assignments of Leases");
(v) a certificate from each Transferors
certifying the information required by any of the states in which any of the
Properties are located to establish that the transaction contemplated by this
Agreement is exempt from the tax withholding requirements of such states (the
"State Certificates");
(vi) a certificate from each Transferors
certifying the information required by 1445 of the Code to establish, for the
purposes of avoiding Buyer's tax withholding obligations, that Transferors is
not a "foreign person" as defined in 1445(f)(3) of the Code (the "FIRPTA
Certificate");
(vii) a letter executed by each respective
Transferors and, if applicable, its respective management agent and the Buyer,
in form and substance satisfactory to Buyer, addressed to all tenants of each
respective Property, notifying all such tenants of the transfer of ownership of
the Property and directing payment of all rents accruing after the Closing Date
to be made to Buyer or such other party as Buyer directs (the "Tenant Notices");
(viii) to the extent not previously delivered to
Buyer and in Buyer's possession or under its control, originals of any of the
Contracts, Leases, licenses, approvals, plans, specifications, warranties, other
Intangible Property and other books and records relating to the ownership and
operation of the Property (or if the original is not in the Transferors'
possession or control, copies thereof to the extent in Transferors' possession
or control);
(ix) an updated Rent Roll for each Property in the
same format as was used for the Rent Rolls attached hereto as Exhibit E or in
such other format as is reasonably acceptable to Buyer dated no later than five
(5) days prior to closing, which updated Rent Roll will be used solely for the
purpose of (i) identifying all Leases at such Property as of the applicable
Closing Date and (ii) allowing the Title Company to issue Buyer's title
insurance
30
34
policies subject to no exception for parties in possession other than the Leases
identified in the Rent Roll;
(x) subject to the provisions of Section 2.6,
such affidavits as may be reasonably and customarily required by the Title
Company to issue the Title Policies in the form required hereby (including,
without limitation, without exception for parties-in-possession (other than
tenants under the Leases) or mechanics' or materialmen's liens which are to be
satisfied by Transferors pursuant to Section 2.6);
(xi) the Remediation and Access Agreement (as
herein defined); and
(xii) evidence reasonably satisfactory to the Title
Company as to the legal existence and authority of the Transferors and the
authority and incumbency of the persons signing documents on behalf of the
Transferors.
In addition, Transferors shall deliver to Buyer on the Closing Date, outside of
escrow, to the extent in Transferor's possession or control, the originals of
all Leases, Contracts and tenant files and all keys to the Properties.
(b) Buyer shall deposit:
(i) on or prior to the close of business on the
business day immediately prior to the Closing Date, immediately available funds
sufficient to pay the balance of the Price, plus sufficient additional cash to
pay Buyer's share of all escrow costs and closing expenses;
(ii) a duly executed counterpart for each of the
Assignments of Intangibles, Assignments of Leases and Remediation and Access
Agreement (and Tenant Notices where required);
(iii) a certificate duly executed by Buyer in favor
of Transferors confirming the waivers and acknowledgments set forth in Sections
2.5 and 4.4 above; and
(iv) evidence reasonably satisfactory to Title
Company as to the legal existence and authority of the Buyer and the authority
and incumbency of the persons signing documents on behalf of the Buyer.
SECTION 6.2 Title. Title Company shall close escrow on the Closing
Date by:
(a) recording the Deeds;
(b) issuing the owner's title policies to Buyer pursuant to
Section 3.1(a)(i) above;
(c) delivering to Buyer originals of the Bills of Sale, the
FIRPTA Certificate, the State Certificates, executed counterparts of each of the
Assignments of Intangibles, Assignments of Leases and Remediation and Access
Agreement and all of the other documents in escrow under Section 6.1(a);
31
35
(d) delivering to Transferors (or the exchange
facilitator(s), as applicable) (i) a counterpart for each of the Assignments of
Intangibles, the Assignments of Leases and the Remediation and Access Agreement
executed by Buyer, (ii) the certificate described in Section 6.1(b)(iii) above,
(iii) funds in the amount of the Sale Purchase Price, as adjusted for credits,
adjustments, prorations and closing costs in accordance with Section 2.3 and
this Article VI and as allocated pursuant to the direction of the Transferors
(upon which allocation Buyer and Title Company shall have the right to
conclusively rely) and (iv) funds in the amount of the Exchange Price, as
adjusted for credits, adjustments, prorations and closing costs in accordance
with Section 2.3 and this Article VI and as allocated pursuant to the direction
of the Transferors (upon which allocation Buyer and Title Company shall have the
right to conclusively rely); and
(e) if directed by the parties, delivering the Tenant
Notices to the tenants by certified mail, return receipt requested.
SECTION 6.3 Prorations.
(a) Taxes. Real estate taxes, personal property taxes and
any general or special assessments with respect to the Properties which are not
the direct payment obligation of tenants pursuant to the Leases (as opposed to a
reimbursement obligation) shall be prorated as of the Closing Date -- to the end
that Transferors shall be responsible for all taxes and assessments that are
allocable to any period prior to the Closing Date and Buyer shall be responsible
for all taxes and assessments that are allocable to any period from and after
the Closing Date. Notwithstanding anything to the contrary contained herein, in
regards to Real Property located in the States of Illinois and Colorado, (A)
general real estate taxes which are not the direct or indirect (as a
reimbursement obligation) payment obligations of tenants pursuant to the Leases
and which are payable for the tax year prior to the tax year in which the
closing occurs and all prior years shall be paid by Transferors (including any
installments thereof payable after the Closing Date) and (B) general real estate
taxes which are not the direct or indirect (as a reimbursement obligation)
payment obligations of tenants pursuant to the Leases and which are payable for
the tax year in which the closing occurs shall be prorated by Transferors and
Buyer as of the Closing Date. If the actual amount of taxes, assessments or
other amounts to be prorated for the year in which the closing occurs (and, with
respect to Real Property located in Illinois and Colorado, for the tax year
prior to the tax year in which the closing occurs) is not known as of the
Closing Date, the proration shall be based on the parties' reasonable estimates
of such taxes, assessments and other amounts. To the extent any real or personal
property taxes subject to apportionment in accordance with the foregoing are, as
of the Closing Date, the subject of any appeal filed by or on behalf of
Transferors, then notwithstanding anything to the contrary contained in this
subparagraph, (i) no apportionment of the taxes being appealed shall occur at
the closing, but instead such apportionment shall be deferred until the outcome
of the appeal is final and the amount of taxes owing becomes fixed at which time
Transferors shall be responsible for all such taxes that are allocable to any
period prior to the Closing Date and Buyer shall be responsible for all such
taxes that are allocable to any period from and after the Closing Date, and (ii)
Transferors shall provide Buyer with adequate security, either in the form of a
bond or by escrowing the amounts being appealed, to assure Buyer that
Transferors' portion of such tax liability, including any penalty, will be
available. To the extent any taxes which are the subject of an appeal have been
paid by Transferors under protest and the appeal results in Buyer receiving a
credit toward future tax liability or a refund, then Buyer shall, within thirty
(30) days
32
36
following receipt of such refund or notice of such credit, pay to Transferors
the full amount of such refund or credit allocable to the period prior to the
Closing Date, excluding, however, any portion of such refund or credit that is
required to be passed through to the tenants pursuant to any Leases or to other
parties by existing contract.
(b) Prepaid Expenses. Buyer shall be charged for those
prepaid expenses paid by Transferors directly or indirectly allocable to any
period from and after the Closing Date, including, without limitation, annual
permit and confirmation fees, fees for licenses and all security or other
deposits paid by Transferors to third parties which Buyer elects to assume and
to which Buyer then shall be entitled to the benefits and refund following the
Closing Date.
(c) Property Income and Expense. The following prorations
and adjustments shall occur as of the closing. Prior to the Closing Date,
Transferors shall provide all information to Buyer required to calculate such
prorations and adjustments and representatives of Buyer and Transferors shall
together make such calculations:
(i) General. Subject to the specific provisions
of clauses (ii), (iii) and (iv) below, income and expense shall be prorated on
the basis of a 30-day month and on a cash basis (except for items of income and
expense that are payable less frequently than monthly, which shall be prorated
on an accrual basis). All such items attributable to the period prior to the
Closing Date shall be credited to Transferors; all such items attributable to
the period on and following the Closing Date shall be credited to Buyer. Buyer
shall be credited in escrow with (a) any portion of rental agreement or lease
deposits which are refundable to the tenants and have not been applied to
outstanding tenant obligations in accordance with the terms of the applicable
Lease and (b) rent prepaid beyond the Closing Date. Transferors shall transfer
Transferors entire interest in any letters of credit or certificates of deposit
held by Transferors as the deposits described in clause (a) above and shall
diligently cooperate with Buyer in obtaining any reissuance or confirmation of
the effect of the transfer of such instruments. Buyer shall not be entitled to
any interest on rental agreement or lease deposits or prepaid rent accrued on or
before the Closing Date, except to the extent any such amount of interest is
refundable or payable to any tenant under a Lease or applicable law. Transferors
shall be credited in escrow with any refundable deposits or bonds held by any
utility, governmental agency or service contractor, to the extent such deposits
or bonds are assigned to Buyer on the Closing Date.
(ii) Leasing Costs. Subject to the provisions of
Section 6.9 below, Buyer shall be credited in escrow with any leasing
commissions, tenant improvements or other allowances to be paid by Buyer on or
after the Closing Date with respect to the current term of any Lease or Lease
modification executed, or any extension term or expansion of premises exercised,
in each case, on or before March 1, 1999, and Transferors shall pay on or before
the Closing Date all such items payable prior to the Closing Date.
Notwithstanding the provisions of the immediately following sentence, with
respect to any new Leases or Lease modifications executed after March 1, 1999
with respect to any of the space identified on Exhibit S attached hereto which
are permitted under the terms of this Agreement ("Vacant Space"), Transferors
shall be credited in escrow with the amount of any leasing commissions, tenant
improvements or other allowances paid by Transferors after March 1, 1999. Buyer
shall receive a credit at closing against the Price in the amount of $7.00 per
square foot of Vacant Space, whether or not such space is leased prior to
closing. With respect to any space which is not Vacant Space, subject to
33
37
Section 6.9 Transferors shall be credited in escrow with an amount equal to (A)
the amount of any leasing commissions, tenant improvement and other allowances
paid by Transferors after March 1, 1999 to the extent such items relate to new
Leases or Lease modifications executed or extensions of terms or expansions of
premises that are exercised after March 1, 1999 and permitted under the terms of
this Agreement, multiplied by (B) a fraction in which the numerator is the
number of months or partial months of the stabilized term (i.e., the term
following the tenant's entry into occupancy and commencement of unabated rental
obligations) of any such Lease following the Closing Date and the denominator is
the number of months or partial months in the stabilized term of such Lease.
Buyer shall assume all obligations for any leasing commissions, tenant
improvement or other allowances payable following the Closing Date with respect
to Leases or Lease modifications executed or extensions of terms or expansions
of premises that are exercised following March 1, 1999 and which are permitted
under the terms of this Agreement; provided, that as to any such leasing
commissions not disclosed to Buyer in the Disclosure Materials List & Statement
or the Disclosure Materials or approved or deemed approved by Buyer pursuant to
this Agreement or which are not expressly assumed by Buyer under any other
provision of this Agreement, Buyer shall only be obligated to pay the market
rate commission for the applicable Lease (and Transferors shall remain
responsible for any above market component of such commission). Any expenditures
or commitments to expenditures relating to Leases or modifications or extensions
of terms or expansions of premises executed following March 1, 1999 in excess of
the amounts budgeted and approved as part of Buyer's approval of the Lease
(where such approval is required) shall be subject to Buyer's specific approval,
which shall not be unreasonably withheld and shall be deemed given if Buyer
should fail to approve or disapprove such excess expenditure within 5 business
days following Transferors' written request and delivery of material information
reasonably necessary to allow Buyer to make an informed decision.
(iii) Rents. Rents payable by tenants under the
Leases, shall be prorated as and when collected (whether such collection occurs
prior to, on, or after the Closing Date). Buyer shall receive a credit for the
amounts actually received before the Closing Date and which pertain to any
period after the Closing Date. Buyer shall not receive a credit at the closing
for any rents for the month in which the closing occurs which are in arrears and
have not then been received. As to any tenants who are delinquent in the payment
of rent on the Closing Date, Buyer shall use reasonable efforts (but shall not
be required to commence legal action or terminate or evict a tenant) to collect
or cause to be collected such delinquent rents following the Closing Date. Any
and all rents so collected by Buyer following the closing (less a deduction for
all reasonable collection costs and expenses incurred by Buyer) shall be
successively applied (after deduction for Buyer's reasonable collection costs)
to the payment of (x) rent due and payable in the month in which the closing
occurs, (y) rent due and payable in the months succeeding the month in which the
closing occurs (through and including the month in which payment is made) and
(z) rent due and payable in the months preceding the month in which the closing
occurs. If all or part of any rents or other charges received by Buyer following
the closing are allocable to Transferors pursuant to the foregoing sentence,
then such sums shall be promptly paid to Transferors. Transferors reserve the
right to pursue any damages remedy Transferors may have against any tenant with
respect to such delinquent rents, but shall have no right to exercise any other
remedy under the Lease (including, without limitation, termination or eviction).
34
38
(iv) Additional Rents. Any percentage rent,
escalation charges for real estate taxes, parking charges, operating and
maintenance expenses, escalation rents or charges, electricity charges, cost of
living increases or any other charges of a similar nature other than fixed or
base rent under the Leases (collectively, the "Additional Rents") shall be
prorated as of the Closing Date between Buyer and Transferors on or before the
date which is ninety (90) days following the end of the calendar year in which
the closing occurs based on the actual number of days of the year and month
which shall have elapsed as of the Closing Date. Prior to the end of the
calendar year in which the closing occurs, Transferors shall provide Buyer with
information regarding Additional Rents which were received by Transferors prior
to closing and the amount of reimbursable expenses paid by Transferors prior to
closing. On or before the date which is sixty (60) days following the end of the
calendar year in which the closing occurs, Buyer shall deliver to Transferors a
reconciliation of all expenses reimbursable by tenants under the Leases, and the
amount of Additional Rents received by Transferors and Buyer relating thereto
(the "Reconciliation"). Upon reasonable notice and during normal business hours,
each party shall make available to the other all information reasonably required
to confirm the Reconciliation. In the event of any overpayment of Additional
Rents by the tenants to Transferors, Transferors shall promptly, but in no event
later than fifteen (15) days after receipt of the Reconciliation, pay to Buyer
the amount of such overpayment and Buyer, as the landlord under the particular
Leases, shall pay or credit to each applicable tenant the amount of such
overpayment. In the event of an underpayment of Additional Rents by the tenants
to Transferors, Buyer shall pay to Transferors the amount of such underpayment
within fifteen (15) days following Buyer's receipt of any such amounts from the
tenants.
(d) Adjustments to Prorations. Subject to Section 6.3(a)
and 6.3(c)(iv) above, after the closing, the parties shall from time to time, as
soon as is practicable after accurate information becomes available and in any
event within 180 days following the Closing Date, recalculate and reapportion
any of the items subject to proration or apportionment (i) which were not
prorated and apportioned at the closing because of the unavailability of the
information necessary to compute such proration, or (ii) which were prorated or
apportioned at the closing based upon estimated or incomplete information, or
(iii) for which any errors or omissions in computing prorations at the closing
are discovered subsequent thereto, and thereafter the proper party shall be
reimbursed based on the results of such recalculation and reapportionment.
Unless otherwise specified herein, all such reimbursements shall be made on or
before thirty (30) days after receipt of notice of the amount due. Any such
reimbursements not timely paid shall bear interest at a per annum rate equal to
ten percent (10%) from the due date until all such unpaid sums together with all
interest accrued thereon is paid if payment is not made within ten (10) days
after receipt of a xxxx therefor.
(e) Prior Year's Reconciliation. If the closing occurs
before Transferors have performed the annual reconciliation of Additional Rent
for the calendar year immediately preceding the calendar year in which the
closing occurs, then Transferors shall, as soon as practicable after closing,
perform such reconciliation at its sole cost and expense. Upon completion of
such annual reconciliation, Transferors shall immediately deliver to Buyer a
detailed description of any Additional Rent which are payable by or reimbursable
to any present tenant (the "Prior Year Reconciliation"). The Prior Year
Reconciliation shall be accompanied by all applicable back-up documentation,
together with Transferors' check for such Additional Rent which is reimbursable
to a tenant. Based upon Transferors' calculations, Buyer shall send
35
39
customary statements for reimbursement of Additional Rent to tenants under the
Leases based on the Prior Year Reconciliation, and shall remit to Transferors
within thirty (30) days of receipt, all sums so collected. If Transferors'
calculations show that Additional Rent has been overpaid by any present tenant
and Transferors have submitted its check to Buyer for such amounts, Buyer shall
refund such Additional Rent to such tenant.
(f) Survival. The provisions of this Section 6.3 shall
survive the closing.
SECTION 6.4 Other Closing Costs.
(a) The premium payable in connection with the issuance of
the Title Policies, governmental documentary transfer or transaction taxes or
fees due on the transfer of the Properties, recording costs, and, except as
otherwise provided below, other closing costs shall be paid by Transferors and
Buyer according to custom in the county in which the applicable Property is
located as set forth on Exhibit D attached hereto.
(b) Transferors shall pay 50% of any escrow or other costs
charged by or reimbursable to the Title Company; provided, however that
additional costs to create multiple escrows to accommodate 1031 Exchanges shall
be borne by the party requesting such multiple escrows.
(c) Buyer shall pay 50% of any escrow or other costs
charged by or reimbursable to the Title Company; provided, however that
additional costs to create multiple escrows to accommodate 1031 Exchanges shall
be borne by the party requesting such multiple escrows.
SECTION 6.5 Further Documentation. At or following the close of
escrow, Buyer and Transferors shall execute any certificate, memoranda,
assignment or other instruments required by this Agreement, law or local custom
or otherwise reasonably requested by the other party to effect the transactions
contemplated by this Agreement and shall take such other actions (but at no
material cost or expense) as are reasonably requested by the other party to
effect the transactions contemplated by this Agreement.
SECTION 6.6 Cooperation in Exchange. The parties acknowledge and
agree that Exchangors have elected (with respect to the Exchange Properties) and
Buyer may elect (with respect to the Properties) to assign their interest in
this Agreement to an exchange facilitator by means of one or more escrows for
the purpose of completing an exchange of such Properties or interests in such
Properties in a transaction which will qualify for treatment as a tax deferred
exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code
of 1986 and applicable state revenue and taxation code sections (a "1031
Exchange"). Each party agrees to reasonably cooperate with any party so electing
in implementing any such assignment and 1031 Exchange, provided that such
cooperation shall not entail any material additional expense to the non-electing
party, cause such party to take title to any other property or cause such party
exposure to any liability or loss of rights or benefits contemplated by this
Agreement, and the electing party shall indemnify, defend and hold the
non-electing party harmless from any liability, damage, loss, cost or other
expense including, without limitation, reasonable attorneys' fees and costs,
resulting or arising from the implementation of any such assignment and 1031
36
40
Exchange. No such assignment by any party shall relieve such party from any of
its obligations hereunder, nor shall such party's ability to consummate a tax
deferred exchange be a condition to the performance of such party's obligations
under this Agreement.
SECTION 6.7 Environmental Matters.
(a) Buyer and Transferors acknowledge and agree that
Transferors shall transfer and assign to Buyer at the closing (to the extent
assignable), as part of the Intangible Property, Transferors' rights and
interests in and to any indemnifications or covenants from third parties (other
than any rights of Transferors under any of Transferors' environmental insurance
policies, which rights are expressly not assigned to Buyer under this Agreement
except as expressly otherwise set forth below) relating to the environmental
condition of the Properties (reserving solely Transferors' rights to the benefit
of such indemnifications and covenants protecting Transferors with respect to
Transferors' ownership of the Properties), including, without limitation, those
indemnity agreements shown on Exhibit O. Following the closing, Buyer and
Transferors shall cooperate in the pursuit of any and all claims arising under
such instruments, which cooperation shall include, as required, Transferors'
expression and pursuit of claims for the benefit of Buyer -- provided that such
pursuit is at Buyer's sole cost and expense and does not expose Transferors to
additional liability. Notwithstanding the foregoing, with respect to the
Property described on Exhibit U-1 attached hereto, to the extent assignable and
subject to obtaining the consent of the applicable insurer, at closing
Transferors shall assign all of their right, title and interest in the
environmental insurance policy described on Exhibit U-2 and Transferors shall be
named as an additional insured under such policy; provided, that the assignment
of such policy shall not constitute a condition of closing under this Agreement.
(b) With respect to the Property described on Exhibit U-3,
Transferors shall use reasonable efforts to obtain on or before closing (but
without any liability whatsoever if they are unable to do so except as set forth
below), a no further action letter (which letter shall be permitted to contain
customary qualifications and exclusions, such as a right of the lead regulatory
agency to reopen its investigation based on additional information, and may be a
risk based no further action letter) from the lead regulatory agency in
connection with the known contamination located on such Properties as more
particularly described on Exhibit U-3 (an "NFA letter"). If Transferors are not
able to deliver to Buyer an NFA Letter with respect to any such Property on or
before the closing, then Transferors shall execute and deliver to Buyer at
closing with respect to any such Property as to which no NFA Letter has been
obtained, a remediation and access agreement in the form attached as Exhibit U-4
(the "Remediation and Access Agreement").
SECTION 6.8 [Intentionally Omitted]
SECTION 6.9 Completion Events.
(a) If the matters described on Exhibit R-1 are not
completed prior to the Closing Date, Transferors can elect, in its sole
discretion, as follows: (i) to provide Buyer with a credit to the Allocated
Price for such Property (if a credit amount is specified on Exhibit R-1 then in
the amount of the credit); (ii) if Transferors have entered into a fixed price
contract for each of such matters, to provide Buyer with a credit to the
Allocated Price for such Property
37
41
equal to the difference between such fixed price and the substantiated amounts
paid by Transferors to the contractor under such contract; or (iii) if (i) and
(ii) do not apply, notify Buyer of Transferors' intent to submit to arbitration
pursuant to Section 7.5 below the determination of an appropriate credit based
on the portion of such matters to be completed after the closing, in which event
the closing shall not be delayed but Transferors shall credit to Buyer at
closing the amount that Transferors believe in good faith is appropriate;
provided, that the parties shall endeavor for thirty (30) days after closing to
reach a mutually acceptable credit prior to submitting such matter to
arbitration and that if it is determined pursuant to such arbitration that Buyer
should have received a larger credit at closing, then Transferors shall pay to
Buyer the amount of such difference, together with interest at nine percent (9%)
per annum, from the Closing Date for such Property to the date of payment of
such difference. Except as otherwise expressly provided in this Section 6.9, in
no event shall a closing be delayed as a result of the application of this
Section 6.9.
(b) With respect to the Property described on Exhibit R-2
attached hereto, (i) Transferors shall use commercially reasonable efforts to
cause the former Xxxx Xxxxx improvements to be demolished in order to permit the
construction of new improvements, which improvements are currently planned to be
leased to Payless and Eckerds, pursuant to leases currently under negotiation.
Transferors shall be responsible for the cost of any capital improvements to the
shopping center (including such new improvements) which are required under any
such leases and for the cost of and any tenant improvements and leasing
commissions (with respect to the initial term of such leases) payable by the
landlord in connection with such leases (and Transferors shall receive no credit
from Buyer for any such costs paid by Transferors); provided, that (A) if any
such leases are executed prior to the closing and any such capital improvements
or tenant improvements are not completed as of the closing, then Buyer shall
receive a credit at the closing against the Allocated Price for such Property
equal to the remaining cost to complete such work and the amount of any such
leasing commissions which remain unpaid, and (B) with respect to any such space
as to which no lease permitted under this Agreement or consented to by Buyer
(where such consent is required) has been executed by Transferors, then at the
closing Buyer shall receive a credit against the Allocated Price for such
Property equal to (x) the net present value of the projected income loss for
such space (if any) based on the difference between Buyer's financial models as
to rent and term for such space assuming such space was leased to Payless and/or
Eckerds, as applicable, and market assumptions (including, without limitation,
any lease-up deficit), discounted at 11.5% per annum, and (y) the cost of any
capital improvements required to realize the income that would have been
produced by leases to Eckerds and/or Payless, as applicable to the extent not
completed as of Closing. If the parties cannot agree in good faith on the amount
of the credit, then the matter shall be submitted to arbitration pursuant to
Section 7.5 below, in which event the closing shall not be delayed but
Transferors shall credit to Buyer at closing the amount that Transferors believe
in good faith is appropriate; provided, that if it is determined pursuant to
such arbitration that Buyer should have received a larger credit at closing,
then Transferors shall pay to Buyer the amount of such difference, together with
interest at nine percent (9%) per annum, from the Closing Date for such Property
to the date of payment of such difference; (ii) Transferors shall install a new
roof on the former Eckerds space; provided that if Transferors have not
completed such installation on or before the closing then Buyer shall receive a
credit for the cost to complete such installation as determined in the manner
described in Section 6.9(a); (iii) Transferors are negotiating with McDonalds in
connection with the lease of a pad at the
38
42
shopping center and Transferors shall be responsible for the cost of any of
landlord's obligations in connection with the consummation of and required under
the terms of such lease, including leasing commissions and pad preparation
costs; provided that (A) if such lease is executed prior to the closing, to the
extent any such obligations have not been paid by Transferors prior to the
closing, Buyer shall receive a credit for the cost of such unpaid obligations as
determined in the manner described in Section 6.9(a) and (B) if such lease is
not executed prior to the closing, Buyer shall receive a credit against the
Allocated Price for such Property in the amount of $110,000; and (iv)
Transferors shall use commercially reasonable efforts to complete with respect
to the area from and including the former Eckerd's space to the end of the
shopping center certain cosmetic renovations consistent with the portion of such
center that has already been cosmetically renovated, the cost of which has been
budgeted at less than $150,000; provided that if Transferors have not completed
such renovations on or before the closing, then Buyer shall receive a credit for
the cost to complete such renovations.
(c) With respect to the Property described on Exhibit R-3
attached hereto, (i) Transferors and Buyer agree that the amount of $305,000
(the "Totem Amount") shall be used by Transferors for certain renovations and
deferred maintenance at the Property (the "Totem Work") as directed by Buyer and
pursuant to any budget Buyer provides to Transferors with Transferors'
reasonable approval and Transferors shall use good faith efforts to utilize such
funds to implement the Totem Work in a good and workmanlike manner; provided,
that at the closing, Buyer shall receive a credit against the Allocated Price
for such Property equal to the Totem Amount less the amount actually expended by
Transferors in performing or causing to be performed the Totem Work; and (ii)
with respect to the space formerly occupied by Ernst and the adjacent 5000
square foot space planned for development adjacent to such space, Transferors
are presently negotiating leases with potential tenants for such space, and
Transferors shall be responsible for the cost of any capital improvements to the
shopping center which are required under any such leases and for the cost of any
tenant improvements and leasing commissions (with respect to the initial term of
such leases) payable by the landlord in connection with such leases (and
Transferors shall receive no credit from Buyer for any such costs paid by
Transferors); provided, that (A) if any such leases are executed prior to the
closing and any such capital improvements or tenant improvements are not
completed as of the closing, then Buyer shall receive a credit at the closing
against the Allocated Price for such Property equal to the remaining cost to
complete such work and the amount of any such leasing commissions which remain
unpaid, and (B) with respect to any such space as to which no lease permitted
under this Agreement or consented to by Buyer (where such consent is required)
has been executed by Transferors, then at the closing Buyer shall receive a
credit against the Allocated Price for such Property equal to (x) the net
present value of the projected income loss for such space (if any) based on the
difference between Buyer's financial models as to rent and term for such space
assuming such space was leased to Xxxx, Car Toys and/or Confetti's, as
applicable, and market assumptions (including, without limitation, any lease-up
deficit), discounted at 11.5% per annum, and (y) the cost of any capital
improvements required to realize the income that would have been produced by
leases to Xxxx, Car Toys and/or Confetti's, as applicable to the extent not
completed as of Closing. If the parties cannot agree in good faith on the amount
of the credit, then the matter shall be submitted to arbitration pursuant to
Section 7.5 below, in which event the closing shall not be delayed but
Transferors shall credit to Buyer at closing the amount that Transferors
determine, in its reasonable discretion, to be appropriate; provided, that if it
is determined pursuant to such arbitration that Buyer should have received a
larger credit at
39
43
closing, then Transferors shall pay to Buyer the amount of such difference,
together with interest at nine percent (9%) per annum, from the Closing Date for
such Property to the date of payment of such difference.
(d) If the matters described on Exhibit R-4 are not
completed prior to the Closing Date with respect to such Property, Transferors
can elect, in its sole discretion, as follows: (i) to provide Buyer with a
credit to the Allocated Price for such Property (if a credit amount is specified
on Exhibit R-4 then in the amount of the credit); (ii) if Transferors have
entered into a fixed price contract for the applicable matter, to provide Buyer
with a credit to the Allocated Price for such Property equal to the difference
between such fixed price and the substantiated amounts paid by Transferors to
the contractor under such contract; or (iii) if (i) and (ii) do not apply,
notify Buyer of Transferors' intent to submit to arbitration pursuant to Section
7.5 below the determination of an appropriate credit based on the portion of
such matter to be completed after the closing, in which event the closing shall
not be delayed but Transferors shall credit to Buyer at closing the amount that
Transferors believe in good faith is appropriate; provided, that the parties
shall endeavor for thirty (30) days after closing to reach a mutually acceptable
credit prior to submitting such matter to arbitration and that if it is
determined pursuant to such arbitration that Buyer should have received a larger
credit at closing, then Transferors shall pay to Buyer the amount of such
difference, together with interest at nine percent (9%) per annum, from the
Closing Date for such Property to the date of payment of such differences.
Except as otherwise expressly provided in this Section 6.9, in no event shall a
closing be delayed as a result of the application of this Section 6.9.
(e) General Provisions. All work performed by Transferors
under this Section 6.9 shall be performed in a good and workmanlike manner
substantially in accordance with all applicable laws. Nothing in this Section
6.9 is intended to limit or expand Buyer's approval rights contained in Section
4.2(c) or (d).
SECTION 6.10 Transferors' Covenant of Cooperation. Transferors
hereby agree to reasonably cooperate with Buyer or Buyer's auditors, at no
expense, liability or substantial accounting time to Transferors, prior to and
after the closing (but subject to the provisions of Section 2.4) (i) by
providing financial data pertaining to the Properties to the extent required by
the Securities and Exchange Commission ("SEC") or reasonably required to prepare
filings that Buyer intends to file with the SEC, including (to the extent so
required) the documentation requested on Exhibit T-1 (but without duplication of
any of the documents listed in the Disclosure Material List & Statement or
contained in the Disclosure Materials so long as continued access is provided to
such documents as were not delivered to Buyer) as it relates to the one (1) year
period immediately preceding the closing, and (ii) in delivering to Buyer's
auditors a certificate in the form of Exhibit T-2. Transferors shall provide
such documentation and deliver such certificate in each instance within ten (10)
business days after receipt of Buyer's reasonable request to do so. Without
limiting Transferors' representations and warranties contained in this Agreement
or Transferors' covenants contained in Section 4.2 or in any document executed
and delivered to Buyer by Transferors at closing, Buyer shall indemnify and hold
Transferors harmless from and against any and all claims, liabilities, losses,
damages, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) to the extent relating to or arising out
of Transferors' performance of its obligations under this Section 6.10,
including, without limitation, any claims arising out of the reliance by
40
44
third parties, including Buyer's auditors, on information provided by
Transferors under this Section 6.10. The provisions of this Section 6.10 shall
survive the closing
SECTION 6.11 UCC Financing Statements. If Buyer provides evidence
during the Confirmation Period of any UCC Financing Statements naming a
Transferor or any of its affiliates as debtor and encumbering a Property
(whether in connection with mortgages, deeds of trust or personal property
financings which are not assumed by Buyer), then Transferors shall use
reasonable efforts to cause the release of such UCC Financing Statements as soon
as practicable after the closing.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Damage or Destruction.
(a) Buyer shall be bound to purchase each of the Properties
as required by the terms of this Agreement without regard to the occurrence or
effect of any damage to or destruction of any of the Properties or condemnation
of any Property by right of eminent domain, provided that the occurrence of any
damage or destruction involves repair costs of less than the greater of
$1,000,000 or ten percent (10%) of the Property's Allocated Price, and any
condemnation does not materially affect the use or value of the affected
Property. If Buyer is so bound to purchase a Property notwithstanding the
occurrence of damage, destruction or condemnation, or if Buyer fails to elect to
treat the applicable Property as a Deleted Property pursuant to Section 7.1(b)
below then upon the closing: (i) in the event of damage covered by insurance or
an immaterial condemnation, Buyer shall receive a credit against the Allocated
Price for such Property in the amount (net of collection costs and costs of
repair reasonably incurred by Transferors and not then reimbursed) of any
insurance proceeds or condemnation award collected and retained by Transferors
as a result of any such damage or destruction or condemnation plus (in the case
of damage) the amount of the deductible portion of Transferors' insurance
policy, and Transferors shall assign to Buyer all rights to such net insurance
proceeds or condemnation awards as shall not have been collected prior to the
close of escrow; and (ii) in the event of damage not covered by insurance, Buyer
shall receive a credit (not to exceed the greater of $1,000,000 or ten percent
(10%) of the Property's Allocated Price for each affected Property) in the
amount of the estimated cost to repair the damage.
(b) If, prior to the Closing Date, any Property suffers
damage or destruction that involves repair costs in excess of the greater of
$1,000,000 or ten percent (10%) of the Property's Allocated Price or
condemnation which affects the use or value of the Property in other than a
minor and immaterial manner, then Buyer may elect to treat such Property as a
Deleted Property by giving written notice of such election to Transferors
promptly following Buyer's knowledge of the event and extent of damage,
destruction or condemnation. In the event of the deletion of any Property
pursuant to this Section 7.1(b), the parties shall be bound to consummate the
purchase and sale of the balance of the Properties in accordance with this
Agreement and the Price shall be reduced by an amount equal to the Allocated
Price of the Deleted Property.
SECTION 7.2 Fees & Commissions.
41
45
(a) Each party to this Agreement warrants to the other
that, except as otherwise provided in subparagraph (b) below, no person or
entity can properly claim a right to a real estate or investment banker's
commission, finder's fee, acquisition fee or other brokerage-type compensation
(collectively, "Real Estate Compensation") based upon the acts of that party
with respect to the transaction contemplated by this Agreement. Each party
hereby agrees to indemnify and defend the other against and to hold the other
harmless from any and all loss, cost, liability or expense (including but not
limited to attorneys' fees and returned commissions) resulting from any claim
for Real Estate Compensation by any person or entity based upon such acts.
(b) The parties hereby acknowledge that Xxxxxx Xxxxxxx Xxxx
Xxxxxx has acted as Transferors' investment bankers in connection with this
transaction. Transferors shall be responsible for paying any commission or fees
due to such parties in connection with this transaction.
SECTION 7.3 Successors and Assigns. Buyer may not assign any of
Buyer's rights or duties hereunder without the prior written consent of
Transferors, which may be withheld in Transferors' sole discretion; provided,
however, that Buyer shall have the right to assign all or a portion of its
rights hereunder to an entity which is at least 75% owned, directly or
indirectly, by Buyer, without the prior consent of Transferors, except that any
such assignment to such an affiliate of Buyer shall not relieve Buyer of any of
its obligations under this Agreement.
SECTION 7.4 Notices. Any notice, consent or approval (or request
for consent or approval) required or permitted to be given under this Agreement
shall be in writing and shall be given or requested by (i) hand delivery, (ii)
Federal Express or another reliable overnight courier service, (iii) facsimile
telecopy, or (iv) United States mail, registered or certified mail, postage
prepaid, return receipt required, and addressed as follows:
To Transferors:
c/o AMB Property, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxx
Fax No.: (000) 000-0000
and
AMB Property, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
755 Page Mill Road
42
46
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
To Buyer:
Xxxxxxx Pacific Properties, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx, Esq.
XxXxxxxxx, Holland & Xxxxx
0000 Xxxxxxx Xxxx, 0xx Xxx.
Xxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxx, P.C.
Fax No.: 000-000-0000
Any such notice, consent or approval (or request for consent or approval) shall
be deemed given or requested (i) if given by hand delivery, upon such hand
delivery, (ii) one (1) business day after being deposited with Federal Express
or another reliable overnight courier service, (iii) if sent by facsimile, the
day the facsimile is successfully transmitted, or (iv) if sent by registered or
certified mail, three (3) business days after being deposited in the United
States mail. Any address or name specified above may be changed by notice given
to the addressee by the other party in accordance with this Section 7.4. The
inability to deliver because of a changed address of which no notice was given,
or rejection or other refusal to accept any notice, shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept. Any notice to be given by any party hereto may be given by
the counsel for such party.
SECTION 7.5 ARBITRATION OF DISPUTES. CONTROVERSIES OR CLAIMS TO BE
SUBMITTED TO ARBITRATION PURSUANT TO SECTIONS 2.5, 2.6 OR 6.9 ABOVE SHALL BE
RESOLVED BY ARBITRATION CONDUCTED IN ACCORDANCE WITH THE CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION 1280 ET SEQ. AND UNDER THE REAL ESTATE INDUSTRY RULES OF
THE AMERICAN ARBITRATION ASSOCIATION ("AAA RULES"), EXCEPT THAT WITH RESPECT TO
ANY INSTANCE IN WHICH THE ARBITRATION RELATES SOLELY TO A DISPUTE OVER THE
AMOUNT OF A PRICE ADJUSTMENT, ANY SUCH ARBITRATION SHALL BE SO CALLED
"BASEBALL-
43
47
STYLE" SUCH THAT EACH PARTY SHALL STATE A SINGLE AMOUNT AS ITS POSITION ON THE
ISSUE BEING ARBITRATED AND A SINGLE ARBITRATOR SHALL BE REQUIRED TO SELECT ONE
OF THE AMOUNTS STATED BY THE PARTIES, AND SHALL HAVE NO RIGHT TO DECIDE A
DIFFERENT AMOUNT OR OTHERWISE TAKE A DIFFERENT POSITION. THE ARBITRATOR(S) SHALL
GIVE EFFECT TO SUBSTANTIVE AND PROCEDURAL LAW OF THE STATE OF CALIFORNIA
INCLUDING, WITHOUT LIMITATION, THE STATUTES OF LIMITATION IN DETERMINING ANY
CLAIM (BUT EXCLUDING PRINCIPLES RELATING TO CONFLICTS OF LAWS). ANY CONTROVERSY
CONCERNING WHETHER AN ISSUE IS ARBITRABLE SHALL BE DETERMINED BY THE
ARBITRATOR(S). ALL DECISIONS BY THE ARBITRATOR(S) SHALL BE IN WRITING AND COPIES
OF THE DECISIONS SHALL BE DELIVERED TO EACH PARTY.
ARBITRATION SHALL TAKE PLACE IN SAN FRANCISCO, CALIFORNIA AT A LOCATION MUTUALLY
ACCEPTABLE TO THE PARTIES OR AS DESIGNATED BY THE ARBITRATOR(S) IF THE PARTIES
CANNOT AGREE ON A LOCATION. THE DECISION BY THE ARBITRATOR(S) SHALL BE ISSUED NO
LATER THAN SIXTY (60) DAYS AFTER THE DATE ON WHICH THE INITIATING PARTY GIVES
WRITTEN NOTICE TO THE OTHER PARTY OF ITS INTENTION TO ARBITRATE, WHICH NOTICE
SHALL COMPLY WITH THE REQUIREMENTS OF THE AAA RULES AND THREE COPIES OF SUCH
NOTICE SHALL BE FILED AT THE REGIONAL OFFICE OF AAA IN SAN FRANCISCO, CALIFORNIA
AS PROVIDED IN THE AAA RULES.
JUDGMENT UPON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL RELIEF
OR PURSUIT OF A PROVISIONAL OR ANCILLARY REMEDY SHALL NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR
CLAIM TO ARBITRATION IF ANY OTHER PARTY CONTESTS SUCH ACTION FOR JUDICIAL
RELIEF.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY
TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
`ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO
NEUTRAL ARBITRATION.
44
48
_____________________ __________________________
BUYER'S INITIALS TRANSFEROR'S INITIALS
SECTION 7.6 Entire Agreement. Excepting solely the Confidentiality
Agreements, this Agreement and the attached exhibits, which are by this
reference incorporated herein, and all documents in the nature of such exhibits,
when executed, contain the entire understanding of the parties and supersede any
and all other written or oral understanding.
SECTION 7.7 Time. Time is of the essence of every provision
contained in this Agreement.
SECTION 7.8 Incorporation by Reference. All of the exhibits
attached to this Agreement or referred to herein and all documents in the nature
of such exhibits, when executed, are by this reference incorporated in and made
a part of this Agreement.
SECTION 7.9 Attorneys' Fees. In the event any dispute between Buyer
and any of Transferors should result in litigation or arbitration, including,
without limitation, arbitration pursuant to Section 7.5 above, the prevailing
party shall be reimbursed for all reasonable costs incurred in connection with
such litigation or arbitration, including, without limitation, reasonable
attorneys' fees and costs.
SECTION 7.10 Construction. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
SECTION 7.11 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California (without giving effect
to conflicts of laws principles).
SECTION 7.12 Operating Records. Each party agrees to make available
to the other party from time to time, but not more frequently than quarterly,
upon reasonable notice, for a period of two years following the Closing Date,
such party's operating records for the Properties, to the extent such party has
operating records, in order to permit the requesting party to prepare such
historical financial statements for the Properties as such party requires to
satisfy legal or contractual obligations. The party making its operating records
available shall have no obligation to prepare any operating statements or incur
any expense in connection with the provisions of this section.
SECTION 7.13 Confidentiality. Buyer and Transferors each acknowledge
and agree that this Agreement and the terms and conditions set forth are to be
kept confidential unless and until the closing occurs on the Closing Date in
accordance with and subject to the terms of this Section 7.13 and the
Confidentiality Agreements. Without limiting the obligations of Buyer's
constituent partners under the Confidentiality Agreements, each party shall be
entitled to discuss and disclose the transaction with employees, agents,
consultants, lenders, clients and
45
49
representatives of such party -- each of whom shall be directed by the
disclosing party to maintain such information in confidence. Notwithstanding
anything to the contrary contained in this Section 7.13, following the full
execution of this Agreement and Buyer's delivery of the Deposit to Title
Company, the parties shall issue a joint press release with respect to this
transaction, which press release shall be in the form attached hereto as Exhibit
J. The Transferors agree that nothing in this Section shall prevent Buyer from
disclosing any information otherwise deemed confidential under this Section (i)
in connection with Buyer's enforcement of its rights hereunder or (ii) pursuant
to any legal requirement applicable to Buyer, including, without limitation, any
securities laws, any reporting requirement or any accounting or auditing
standard.
SECTION 7.14 Counterparts. This Agreement may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
SECTION 7.15 Transferors' Representative. Buyer shall be entitled to
rely upon any notice, approval or decision expressed by any of the Knowledge
Persons acting alone on behalf of all of the Transferors.
SECTION 7.16 No Liability. Notwithstanding anything to the contrary
contained herein, in no event shall Calpers, which is a constituent member of
Buyer, or any of its trustees, directors or employees, have any personal
liability under this Agreement.
SECTION 7.17 Escrow Provisions.
(a) By its signature below, Title Company acknowledges
receipt of the Deposit (whether in the form of cash or a Letter of Credit).
Title Company agrees to hold the Deposit (whether in the form of cash or a
Letter of Credit) in escrow pursuant to the provisions of this Agreement for
application in accordance with the provisions of this Agreement, including the
following terms:
(1) Title Company shall have no duties or
responsibilities other than those expressly set forth in this Agreement. Title
Company shall have no duty to enforce any obligation of any person to make any
payment or delivery or to enforce any obligation of any person to perform any
other act. Title Company shall be under no liability to the other parties hereto
or to anyone else by reason of any failure on the part of any party hereto or
any maker, guarantor, endorser or other signatory of any document or any other
person to perform such person's obligations under any such document. Except for
this Agreement, amendments to this Agreement executed by Transferors and Buyer
and except for joint written instructions given to Title Company by Transferors
and Buyer relating to the Deposit, Title Company shall not be obligated to
recognize any agreement between any or all of the persons referred to herein,
notwithstanding that references thereto may be made herein and whether or not it
has knowledge thereof.
(2) In its capacity as Title Company, Title Company
shall not be responsible for the genuineness or validity of any security,
instrument, document or item deposited with it and shall have no responsibility
other than to faithfully follow the instructions
46
50
contained in this Agreement, and subject to the terms hereof, it is fully
protected in acting in accordance with any written instrument given to it
hereunder by any of the parties hereto and believed by Title Company to have
been signed by the proper person. Title Company may assume that any person
purporting to give any notice hereunder has been duly authorized to do so. Title
Company is acting as a stakeholder only with respect to the Deposit. If there is
any dispute or uncertainty concerning any action to be taken hereunder, Title
Company shall have the right to take no action (other than to make demand for
the principal amount of any portion of the Deposit in the form of a Letter of
Credit as may be required under this Agreement which demand shall be made as so
required by this Agreement notwithstanding any contrary instructions by Buyer
unless approved in writing by Transferors) until it shall have received
instructions in writing approved by Transferors and Buyer or until directed by a
final order of judgment of a court of competent jurisdiction, whereupon Title
Company shall take such action in accordance with such instructions or such
order.
(3) It is understood and agreed that the duties of
Title Company are purely ministerial in nature. Title Company shall not be
liable to the other parties hereto or to anyone else for any action taken or
omitted by it, or any action suffered by it to be taken or omitted, in good
faith and in the exercise of reasonable judgment, except for acts of willful
misconduct or gross negligence. Title Company may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by Title Company), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information therein contained) which is reasonably believed
by Title Company to be genuine and signed or presented by the proper person or
persons. Title Company shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this Agreement or any of the
terms hereof, unless evidenced by a final judgment or decree of a court of
competent jurisdiction in the State of California or a Federal court in such
State, or a writing delivered to Title Company signed by the proper party or
parties and, if the duties or rights of Title Company are affected, unless it
shall give its prior written consent thereto.
(4) Title Company shall have the right to assume in
the absence of written notice to the contrary from the proper person or persons
that a fact or an event by reason of which an action would or might be taken by
Title Company does not exist or has not occurred, without incurring liability to
the other parties hereto or to anyone else for any action taken or omitted, or
any action suffered by it to be taken or omitted, in good faith and in the
exercise of reasonable judgment, in reliance upon such assumption.
(5) Except in connection with Title Company's willful
misconduct or gross negligence, Title Company shall be indemnified and held
harmless jointly and severally by the other parties hereto from and against any
and all liabilities, expenses and losses suffered by Title Company (as escrow
agent), including reasonable attorneys' fees and expenses, in connection with
any action, suit or other proceeding involving any claim, which arises out of or
relates to this Agreement, the services of Title Company hereunder or the monies
or instruments held by it hereunder. Promptly after the receipt by Title Company
of notice of any demand or claim or the commencement of any action, suit or
proceeding, Title Company shall, if a demand or a claim is made or an action is
commenced against any of the other parties hereto, notify such
47
51
other parties hereto in writing; but the failure by Title Company to give such
notice shall not relieve any party from any liability which such party may have
to Title Company hereunder.
SECTION 7.18 State Specific Provisions.
(a) In regards to Real Property located in California:(a)
(i) Buyer is hereby apprised of and shall
determine whether any Real Property is located within the coastal zone under the
California Coastal Act.
(ii) Buyer is hereby apprised of and shall
determine whether any Real Property is located within a special studies zone
under the Xxxxxxx-Xxxxxx Geologic Hazard Act.
(iii) To the extent required by law, Transferors
and Buyer agree to provide a Real Estate Transfer Disclosure Statement.
(iv) Transferors shall provide Buyer with a form
California 590-RE.
(b) In regards to Real Property located in Florida:
(i) Buyer is notified as follows: RADON GAS:
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
(ii) THE REAL PROPERTY MAY BE LOCATED IN A
DISTRICT THAT IMPOSES TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON
THE REAL PROPERTY THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND ASSESSMENTS
PAY THE CONSTRUCTION, OPERATION AND MAINTENANCE COSTS OF CERTAIN PUBLIC
FACILITIES OF THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE
DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO COUNTY AND ALL OTHER
TAXES AND ASSESSMENTS PROVIDED FOR BY LAW.
(iii) Buyer is hereby apprised of and shall
determine whether any Real Property is located within the coastal construction
control line and Buyer shall waive in writing at closing the requirement of
Transferors to provide an affidavit or survey delineating the location of the
coastal construction control line.
(iv) Buyer is hereby apprised that Buyer has the
right to have the energy-efficiency rating determined. If Buyer desires to have
the Real Property rated, Buyer must arrange to have the energy-efficiency rating
determination performed at Buyer's expense. The energy rating so determined
shall not, however, entitle Buyer to cancel this Agreement since such rating is
not a contingency of this Agreement.
(c) In regards to Real Property located in Texas
48
52
(i) Buyer is hereby apprised of and shall
determine whether any of the Real Property is located seaward of the Gulf
Intercoastal Waterway to its southernmost point and then seaward of the
longitudinal line also known as 97,12', 19" which runs southerly to the
international boundary from the intersection of the center line of the Gulf
Intercoastal Waterway and the Brownsville Ship Channel, and if any of the Real
Property is in close proximity to a beach fronting the Gulf of Mexico, Buyer is
hereby advised that the public has acquired a right of use or easement to or
over the area of any public beach by prescription, dedication, or presumption,
or has retained a right by virtue of continuous right in the public since time
immemorial, as recognized in law and custom.
The extreme seaward boundary of natural vegetation that
spreads continuously inland customarily marks the landward boundary of the
public easement. If there is no clearly marked natural vegetation line, the
landward boundary of the easement is as provided by Sections 61.016 and 61.017,
Natural Resources Code.
State law prohibits any obstruction, barrier, restraint, or
interference with the use of the public easement, including the placement of
structure seaward of the landward boundary of the easement. STRUCTURES ERECTED
SEAWARD OF THE VEGETATION LINE (OR OTHER APPLICABLE EASEMENT BOUNDARY) OR THAT
BECOME SEAWARD OF THE VEGETATION LINE AS A RESULT OF NATURAL PROCESSES ARE
SUBJECT TO A LAWSUIT BY THE STATE OF TEXAS TO REMOVE THE STRUCTURE.
Buyer is hereby notified that Buyer should seek the advice of an attorney or
other qualified person before executing this Agreement or instrument of
conveyance as to the relevance of these statutes and facts to the value of any
of the Real Property Buyer is hereby purchasing or contracting to purchase.
(ii) Buyer is hereby apprised of and shall
determine whether any of the Real Property is located within a Water District.
If any of the Real Property is located within a Water District, Buyer is
notified as follows [to the extent required, missing information to be
completed, if applicable, by Transferors on or before the closing.]:
"The real property, described below, that you are about to purchase is
located in the _________District. The district has taxing authority
separate from any other taxing authority and may, subject to voter
approval, issue an unlimited amount of bonds and levy an unlimited rate
of tax in payment of such bonds. As of this date, the rate of taxes
levied by the district on real property located in the district is
$________________on each $100 of assessed valuation. If the district
has not yet levied taxes, the most recent projected rate of debt
service tax, as of this date, is $__________on each $100 of assessed
valuation. The total amount of bonds approved by the voters and which
have been or may, at this date, be issued is $_________, and the
aggregate initial principal amounts of all bonds issued for one or more
of the specified facilities of the district and payable in whole or in
part from property taxes is $__________.
The district has the authority to adopt and impose a standby fee on
property in the district that has water, sanitary sewer, or drainage
facilities and services available
49
53
but not connected and which does not have a house, building, or other
improvement located thereon and does not substantially utilize the
utility capacity available to the property. The district may exercise
the authority without holding an election on the matter. As of this
date, the most recent amount of the standby fee is $____________. An
unpaid standby fee is a personal obligation of the person that owned
the property at the time of imposition and is secured by a lien on the
property. Any person may request a certificate from the district
stating the amount, if any, of unpaid standby fees on a tract of
property in the district.
The purpose of this district is to provide water, sewer, drainage, or
flood control facilities and services within the district through the
issuance of bonds payable in whole or in part from property taxes. The
cost of these facilities is not included in the purchase price of your
property, and these utility facilities are owned or to be owned by the
district. The legal description of the property you are acquiring is as
follows:
_______________________________________________________________________
_______________________________________________________________________
BUYER IS ADVISED THAT THE INFORMATION SHOWN ON THIS FORM IS SUBJECT TO
CHANGE BY THE DISTRICT AT ANY TIME. THE DISTRICT ROUTINELY ESTABLISHES
TAX RATES DURING THE MONTHS OF SEPTEMBER THROUGH DECEMBER OF EACH YEAR,
EFFECTIVE FOR THE YEAR IN WHICH THE TAX RATES ARE APPROVED BY THE
DISTRICT. BUYER IS ADVISED TO CONTACT THE DISTRICT TO DETERMINE THE
STATUS OF ANY CURRENT OR PROPOSED CHANGES TO THE INFORMATION SHOWN ON
THIS FORM.
The undersigned Buyer hereby acknowledges receipt of the foregoing
notice at or prior to execution of a binding contract for the purchase
of the real property described in such notice or at closing of purchase
of the real property.
50
54
IN WITNESS WHEREOF, Transferors and Buyer have executed this Agreement as of the
day and year first written above.
Buyer:
BPP RETAIL, LLC,
a Delaware limited liability company
By: Xxxxxxx Pacific Operating Partnership, L.P.
a Delaware limited partnership
Its Managing Member
By: Xxxxxxx Pacific Properties, Inc.
Its general partner
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
Transferors:
AMB Property, L.P.
a Delaware limited partnership
By: AMB Property Corporation
Its general partner
By:________________________________
Its:_______________________________
AMB Property II, L.P.
a Delaware limited partnership
By: AMB Property Holding Corporation
Its general partner
By:_________________________________
Its_________________________________
51
55
The undersigned party is joining this Agreement solely for the purpose of
acknowledging and agreeing to the provisions of Article V and Section 7.17
hereof and any other provisions of this Agreement expressly applicable to Title
Company.
CHICAGO TITLE COMPANY
By: ____________________________
Name: __________________________
Title: _________________________
52
