EXHIBIT 10.4
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN:
METROPOLITAN OPERATING PARTNERSHIP, L.P.
(the "SELLER")
and
HUB PROPERTIES TRUST
(the "PURCHASER")
Dated: as of July 30, 1999
TABLE OF CONTENTS
Page
SECTIONS
SECTION 1: SUBJECT OF SALE.....................................................1
SECTION 2: DEFINITIONS.........................................................2
SECTION 3: TRANSFER OF PROPERTY; PURCHASE PRICE...............................5
SECTION 4: DUE DILIGENCE; "AS IS" SALE.........................................6
SECTION 5: MATTERS TO WHICH THE SALE IS SUBJECT................................7
SECTION 6: OUTSTANDING INTEREST OR UNMARKETABLE TITLE..........................7
SECTION 7: ADJUSTMENTS.........................................................8
SECTION 8: CASUALTY............................................................8
SECTION 9: CONDEMNATION PENDING CLOSING........................................9
SECTION 10: THE SELLER'S WARRANTIES AND REPRESENTATIONS.......................10
SECTION 11: THE SELLER'S INSTRUMENTS AT CLOSING...............................11
SECTION 12: PURCHASER'S REPRESENTATIONS AND WARRANTIES........................12
SECTION 13: PURCHASER'S INSTRUMENTS AT CLOSING................................13
SECTION 14: CONTRACT PERIOD...................................................13
SECTION 15: BROKERAGE.........................................................13
SECTION 16: CONDITIONS PRECEDENT TO CLOSING...................................14
SECTION 17: CLOSING...........................................................15
SECTION 18: EXPENSES..........................................................15
SECTION 19: NOTICES...........................................................15
SECTION 20: DEFAULT...........................................................16
SECTION 21: ASSIGNMENT........................................................17
SECTION 22: ESTOPPEL CERTIFICATE..............................................17
SECTION 23: COUNTERPARTS......................................................17
SECTION 24: INTENTIONALLY DELETED.............................................17
SECTION 25: MISCELLANEOUS.....................................................17
SECTION 26: ESCROW AGENT......................................................18
SECTION 27: CONFIDENTIALITY/PUBLICATION.......................................20
SCHEDULES
Schedule 1: List of Personal Property
Schedule 2: Brokerage Agreements
Schedule 3: Litigation or other Proceedings
Schedule 4: Permitted Encumbrances
Schedule 5: Marked Title Commitment
EXHIBITS
Exhibit A: Legal Description of the Land
Exhibit B: Lease
Exhibit C: Deed
Exhibit D: Assignment and Assumption Agreement
Exhibit E: FIRPTA Certificate
Exhibit F: Tenant Estoppel
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") made as of the
30th day of July, 1999 by and between METROPOLITAN OPERATING PARTNERSHIP, L.P.,
having an address at c/o Metropolitan Partners, LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "SELLER") and HUB PROPERTIES TRUST, having an
address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter, the "PURCHASER").
RECITALS
A. The Seller is the fee owner of the Property (as hereinafter
defined).
B. Purchaser desires to purchase the Property and Seller desires
to sell the same to Purchaser pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, do hereby agree as follows:
SECTION 1: SUBJECT OF SALE
Section 1.01. Subject to and in accordance with the terms and
conditions of this Agreement, the Seller shall transfer and convey to
Purchaser, all of the Seller's right, title and interest in and to the
following:
(a) (i) those certain parcels of real property situate, lying and
being in the State of Arizona and being more particularly described on EXHIBIT
A attached hereto (the "LAND"), and (ii) all of the improvements located on
the Land ( the "IMPROVEMENTS");
(b) all rights, privileges, grants and easements appurtenant to the
Seller's interest in the Land and Improvements, including, without limitation,
all of the Seller's right, title and interest in and to the Land lying in the
bed of any public street, road or alley, all mineral and water rights and all
easements, licenses, covenants and rights-of-way or other appurtenances used
in connection with the beneficial use and enjoyment of the Land and
Improvements (the Land and Improvements and all such rights, privileges,
easements, grants and appurtenances are sometimes referred to herein as the
"REAL PROPERTY");
(c) the fixtures, machinery, equipment, and other items of personal
property owned by the Seller, set forth on Schedule 1 attached hereto and made
a part hereof (the "PERSONAL PROPERTY"), and used in connection with the
ownership or operation of the Real Property;
(d) that certain lease, dated as of June 25, 1999, by and between
Seller and Blue Cross and Blue Shield of Arizona and other agreements with
respect to the use and occupancy of the Real Property, together with all
amendments and modifications thereto and any guaranties provided thereunder
("the LEASE") a copy of which is attached hereto as EXHIBIT B, and rents,
additional rents, reimbursements, profits, income, receipts and the amount
deposited (the "SECURITY DEPOSIT") under the Lease in the nature of security
for the performance of any Tenant's obligations thereunder;
(e) the right to use any names by which any of the Real Property is
commonly known and all goodwill, if any, related to said names;
(f) all governmental permits, licenses, approvals, and certificates
relating to the Real Property and the Personal Property (collectively, the
"PERMITS AND LICENSES") and all of the Seller's right, title and interest in
and to (i) those contracts (including, without limitation, management
contracts) and agreements for the servicing, maintenance, repair and operation
of the Real Property (the "SERVICE CONTRACTS") and (ii) the brokerage
agreements listed on Schedule 2 attached hereto and made a part hereof (the
"BROKERAGE AGREEMENTS") relating to the Lease;
(g) all books, records, promotional material, tenant data, past and
current rent rolls, market studies, keys, plans and specifications, owned by
the Seller (other than the general ledger account of the Seller) and which are
used in connection with the use and operation of the Real Property or Personal
Property (collectively, the "BOOKS AND RECORDS"); and
(h) all other rights, privileges, and appurtenances owned by the
Seller, if any, and directly related to the ownership, use or operation of the
Real Property or Personal Property, including, without limitation, any real
estate tax refunds relating to the Property.
The Real Property, the Personal Property, the Leases, the Security
Deposits, the Permits and Licenses, the Service Contracts, the Brokerage
Agreements, the Books and Records, and all other property interests relating
or appurtenant thereto being conveyed hereunder are hereinafter collectively
referred to as the "PROPERTY" or the "PROPERTIES".
SECTION 2: DEFINITIONS
Section 2.01. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context clearly indicates a contrary intent:
(i) the capitalized terms defined in this Section have the
meanings assigned to them in this Section, and include the plural as
well as the singular; and
(ii) the words "herein", "hereof", and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Section or other subdivision.
"ACTUAL KNOWLEDGE" shall mean the actual knowledge of Metropolitan
Operating Partnership, L.P., obtained (i) while performing due diligence prior
to the merger (the "MERGER"), consummated on May 24, 1999 (the date on which
the Seller gained beneficial ownership of the Property), pursuant to that
certain Agreement and Plan of Merger, dated as of December 8, 1998, among
Metropolitan Partners LLC, Reckson Operating Partnership, L.P., Reckson
Associates Realty Corp. and Tower Realty Trust, Inc., (ii) subsequent to the
Merger and (iii) after consulting JDB Asset Management, Inc.
"ADDITIONAL DEPOSIT" shall mean the $750,000.00 deposit described in
Section 3.03 hereof, together with all interest earned thereon.
"AFFILIATE" as to any Person, shall mean any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 50% or more
of the securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean the Assignment and
Assumption Agreement in the form of Exhibit D attached hereto.
"BOOKS AND RECORDS" shall have the meaning set forth in Section 1.01
hereof.
"BROKERAGE AGREEMENTS" shall have the meaning set forth in Section
1.01 hereof.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
State of New York or Commonwealth of Massachusetts or federal legal holiday.
"CLOSING" shall mean the closing of the transactions contemplated by
this Agreement.
"CLOSING DATE" shall mean the date when title to the Property is
conveyed to Purchaser in accordance with the terms and conditions of this
Agreement.
"CONTRACT PERIOD" shall mean the period commencing on the date of
this Agreement and ending on the Closing Date.
"DATA ROOM" shall mean the "data room" in the offices of
Insignia/ESG, Inc. at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or
at such other location as the materials located therein relating to the
Property may be located subsequent to the date of this Agreement.
"DEPOSIT" shall mean the deposit described in Section 3.03 hereof,
together with all interest earned thereon.
"▇▇▇▇▇▇▇ MONEY" shall mean the $250,000.00 deposit described in
Section 3.02 hereof, together with all interest earned thereon.
"ENVIRONMENTAL LAWS" shall mean all foreign, federal, state and local
laws, regulations, rules and ordinances relating to pollution or protection of
the environment, including, without limitation, laws relating to releases or
threatened releases of hazardous substances, oils, pollutants or contaminants
into the indoor or outdoor environment (including, without limitation, ambient
air, surface water, groundwater, land, surface and subsurface strata) or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, release, transport or handling of hazardous substances,
oils, pollutants or contaminants expressly intending to include without
limitation asbestos.
"ESCROW AGENT" shall mean Commonwealth Land Title Insurance Company.
"LEASE" shall have the meaning set forth in Section 1.01 hereof.
"LOSS" or "LOSSES" shall mean actual damage, loss, cost or expense
(including reasonable costs of investigation incurred in defending against
and/or settling such damage, loss, cost or expense or claim therefor and any
amounts paid in settlement thereof) imposed on, or incurred by Seller.
"MATERIAL LOSS" or "MATERIAL LOSSES" shall mean actual damage, loss,
cost or expense (including reasonable costs of investigation incurred in
defending against and/or settling such damage, loss, cost or expense or claim
therefor and any amounts paid in settlement thereof) in excess of Twenty
Thousand Dollars ($20,000.00) imposed on, or incurred by, Purchaser in
connection with any false or inaccurate representation made by Seller in
Section 10 of this Agreement.
"MERGER" shall have the meaning set forth in the definition of Actual
Knowledge.
"PERMITS AND LICENSES" shall have the meaning set forth in Section
1.01 hereof.
"PERMITTED ENCUMBRANCES" shall mean those restrictions, covenants,
agreements, easements and other matters and things of record set forth on
Schedule 4, attached hereto.
"PERSON" shall mean any individual, partnership, limited liability
company, corporation, trust, governmental entity or any other type of entity.
"PERSONAL PROPERTY" shall have the meaning set forth in Section 1.01
hereof.
"PROPERTY" shall have the meaning set forth in Section 1.01 hereof.
"REAL ESTATE TAXES" shall mean real estate taxes and any general or
special assessments imposed upon the Real Property, including but not limited
to any general or special assessments of any governmental or municipal
authority or tax district, including, without limitation, any assessments
levied for public benefits to the Real Property.
"RENTS" shall mean, collectively, all minimum rent and additional
rent (including all escalations and tax and expense pass-throughs) payable by
the Tenant under the Lease.
"SECURITY DEPOSITS" shall have the meaning set forth in Section 1.01
hereof.
"SERVICE CONTRACTS" shall have the meaning set forth in Section 1.01
hereof.
"TAX BILLS" shall mean the two most recent real estate tax bills with
respect to the Property, copies of which were previously delivered to
Purchaser.
"TAX YEAR" shall have the meaning set forth in Section 7.01(a) hereof.
"TENANT" shall mean Blue Cross and Blue Shield of Arizona.
"TENANT ESTOPPEL" shall have the meanings set forth in Section 22.01
hereof.
"TITLE INSURER" shall mean Commonwealth Land Title Insurance Company
or any other title company acceptable to Purchaser and the Seller and licensed
in the State of Arizona.
SECTION 3: TRANSFER OF PROPERTY; PURCHASE PRICE
Section 3.01. The Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from the Seller, subject to and in accordance with the
terms, provisions, covenants and conditions set forth in this Agreement, all
of the Seller's right, title and interest in and to the Property for a
purchase price of EIGHTEEN MILLION TWO HUNDRED FIFTY THOUSAND ($18,250,000)
DOLLARS (the "PURCHASE PRICE").
Section 3.02. Purchaser has deposited the sum of TWO HUNDRED FIFTY
THOUSAND ($250,000.00) DOLLARS (the "▇▇▇▇▇▇▇ MONEY"), with the Escrow Agent
pursuant to Section 26 hereof. The ▇▇▇▇▇▇▇ Money shall be refunded to
Purchaser if Purchaser terminates this Agreement in accordance with Section 4
below on or before July 16, 1999. If Purchaser does not terminate this
Agreement on or before July 16, 1999 (time being of the essence), the ▇▇▇▇▇▇▇
Money shall automatically become non-refundable except as expressly set forth
herein to the contrary. Section 3.03. On or before 5:00 p.m. EDT on the first
(1st) business day following the date on which this Agreement is mutually
executed and delivered (time being of the essence), Purchaser shall deliver to
Seller a non-refundable (except as expressly set forth herein to the contrary)
additional deposit of SEVEN HUNDRED FIFTY THOUSAND ($750,000.00) DOLLARS (the
"ADDITIONAL DEPOSIT"; the ▇▇▇▇▇▇▇ Money and the Additional Deposit being
hereinafter sometimes collectively referred to as the "DEPOSIT. If the
Additional Deposit is not delivered to Escrow Agent on or before 5:00 p.m. EDT
on the first (1st) business day following the date on which this Agreement is
mutually executed and delivered (time being of the essence), Seller may
terminate this Agreement effective immediately upon written notice to
Purchaser and, upon the return of the ▇▇▇▇▇▇▇ Money to Purchaser, this
Agreement shall be of no further force and effect, except for those provisions
expressly intended to survive the termination of this Agreement.
Section 3.04. On the Closing Date, Purchaser shall deliver to Escrow
Agent the balance of the Purchase Price, subject to adjustments and prorations
set forth herein, by wire transfer.
SECTION 4: DUE DILIGENCE; "AS IS" SALE
Section 4.01. Seller has made available to Purchaser in the Data Room
the most current survey of the Property, the most recent title insurance
policy or commitment for the Property and any environmental reports relating
to the Property obtained in connection with the Merger and such other
documents, correspondence and memoranda as may relate to the Property to the
extent that such information is in Seller's possession or control (such
materials being hereinafter collectively referred to as the "PROPERTY FILES").
Notwithstanding the foregoing, Seller has received subsequent to the Merger
and placed in storage certain files and other materials which may contain
information relating to the Properties. Seller has not examined these
materials and does not intend to do so. Seller has no Actual Knowledge that
anything contained in these materials differs from the information contained
in the Property Files and Seller has not removed any information from the
Property Files in order to limit Purchaser's ability to perform accurate due
diligence on the Property. By causing the assembly of the Property Files,
Seller has attempted to make available to Purchaser such information and
materials as has been utilized by Seller in its operation of the Property.
Purchaser has examined the Property and reviewed the Property Files and
Purchaser is satisfied with the scope of its due diligence and agrees to
accept the Property "AS IS".
Section 4.02. During the Contract Period, Purchaser and its
authorized agents, employees and other representatives, upon prior reasonable
notice to the Seller, shall have reasonable access to the Property for the
purpose of inspecting the Property and the Seller shall have the right to be
present during such inspections. In connection therewith, Purchaser may cause
one or more surveyors, attorneys, engineer, auditors, architects and other
experts of its choice and at Purchaser's expense to (i) inspect the Property
and any documents related to the Property, including, without limitation, all
title and survey information, as-built plans and specifications, soil and
environmental reports, the site plan, zoning approvals, building permits,
Leases, Service Contracts, books, financial and accounting records and other
agreements, and (ii) appraise and otherwise do that which, in the opinion of
Purchaser, is necessary to determine the condition and value of the Property
for the uses intended by Purchaser. Seller shall use reasonable efforts to
arrange the availability to Purchaser during the Contract Period of all
Leases, operating statements, Service Contracts and the most recent tax and
utility bills relating to the Property, to the extent that such information is
available in the Data Room. Purchaser agrees that it shall not contact the
Tenant prior to the Closing without Seller's written approval, which approval
may be granted or withheld in Seller's sole and absolute discretion. All
information obtained, received and/or reviewed by Purchaser during the
Contract Period shall be kept strictly confidential in accordance with Section
27 of this Agreement. Purchaser shall not interfere in any material respect
with the use or operation of the Property during such inspections. Purchaser
shall indemnify, defend and hold harmless the Seller from and against any and
all loss, costs, liability, damage and expenses, including, but not limited
to, penalties, fines, court costs, disbursements and attorney's fees incurred
in connection with or arising from injuries to persons or damage to property
caused by Purchaser, its agents, employees, representatives or independent
contractors with respect to such right of access and Purchaser shall deliver
to Seller, upon Seller's request, evidence of contractual liability insurance
maintained by Purchaser, insuring Purchaser's indemnity under this Section, at
such time as Purchaser requests access to the Property in accordance with this
Section 4.02. The provisions of this Section shall be binding upon Purchaser
regardless of whether or not the transactions contemplated hereby are
consummated and shall survive for a one-year period following the termination
of this Agreement or the Closing.
SECTION 5: MATTERS TO WHICH THE SALE IS SUBJECT
Section 5.01. The Seller shall assign and convey or cause to be
assigned and conveyed to Purchaser good and valid insurable fee title to the
Property free and clear of any and all mortgages, liens, leases, encumbrances
and easements, except:
(a) All taxes, water meter and water charges and sewer rents, accrued
or unaccrued, fixed or not fixed, not yet due and payable as of the Closing
Date;
(b) All zoning laws and building ordinances, resolutions, regulations
and orders (other than violation orders) of all boards, bureaus, commissions
and bodies of any municipal, county, state or federal government; and
(c) The Permitted Encumbrances.
SECTION 6: OUTSTANDING INTEREST OR UNMARKETABLE TITLE
Section 6.01. As a condition to the Closing, Title Insurer shall
issue a fee title policy at the Closing to Purchaser insuring title to the
Property subject only to the Permitted Encumbrances and otherwise in form and
substance consistent with the marked title commitment attached hereto as
Schedule 5.
Section 6.02. If at the Closing it should appear that the Property is
affected by any outstanding interest or question of title which Purchaser is
not obliged to take the Property subject to in accordance with the terms of
this Agreement, and if such interest or question of title may, according to
Seller's reasonable expectations, be removed as an objection to title within
one (1) month from the scheduled Closing Date, the Seller may adjourn the
Closing Date for a period not exceeding one (1) month for such purpose. If the
Property shall be affected by any lien or encumbrance which is not a Permitted
Encumbrance and which may be discharged by the payment of an ascertainable
amount of money, and if Seller desires to discharge such lien or encumbrance
(it being agreed that this Section 6.02 shall not be construed to require
Seller to expend any funds to remove of record any lien or encumbrance which
affects the Property at Closing), then Seller shall be entitled to a
reasonable adjournment not to exceed two (2) weeks to accomplish the discharge
thereof; further, subject to the reasonable approval of Purchaser and the
Title Insurer, the Seller shall have the right, but not the obligation, to
bond or escrow for such lien or encumbrance if such lien or encumbrance is not
readily dischargeable. If after any applicable adjournment, the Seller shall
be unwilling (with respect to a lien or encumbrance which may only be
discharged by the payment of money) or unable to convey the Property in
accordance with the provisions of this Agreement, Purchaser shall have the
right to waive the defect in title and accept such title as the Seller can
convey without a reduction in the Purchase Price or terminate this Agreement
by written notice to the Seller whereupon the Deposit shall be immediately
returned to Purchaser and the parties shall have no further rights or
obligations hereunder.
SECTION 7: ADJUSTMENTS
Section 7.01. All items of income and expense relating to the
Property, including the following, shall be apportioned between the parties as
of midnight of the day immediately preceding the Closing Date so that the
Seller shall be charged with and have the benefit of such items accrued
through the day immediately preceding the Closing Date, and Purchaser shall be
charged with or have the benefit of such items from and after the Closing
Date:
(a) Rents (including base rent and additional rent). Any rent
arrearages received by Purchaser after the Closing shall be adjusted
post-Closing in accordance with the following order of priority: (i) first to
the month in which the Closing occurred; (ii) then to the one month preceding
the month in which the Closing occurred; and (iii) then to any month or months
following the month in which the Closing occurred. This provision shall
survive the passage of title.
(b) Purchaser acknowledges that the Lease is a triple net lease, and,
accordingly, there shall be no adjustment for taxes, utilities property taxes
and service contracts. Seller shall be responsible for any allowance due
Tenant under the Lease for tenant improvements. The amount of such allowance
(less any amount previously funded to Tenant or Tenant's contractor) shall be
a credit against the Purchase Price at Closing.
(c) charges payable under Service Contracts on the basis of the
period covered by such payments.
SECTION 8: CASUALTY
Section 8.01. (a) If, during the Contract Period, all or a "MATERIAL
PART" (as defined below) of any of the Improvements shall be damaged or
destroyed by fire or other casualty, then, in any such event, Purchaser may,
at its option, either (i) cancel this Agreement, whereupon subject Section 26,
the Deposit shall be returned to Purchaser and the parties hereto shall be
released of all obligations and liabilities of whatsoever nature in connection
with this Agreement, or (ii) proceed to close the transactions contemplated by
this Agreement, in which event all of the provisions of subsection 8.01(b)(i)
and subsection 8.01(b)(ii) below shall apply.
(b) If, during the Contract Period, less than a material part of an
Improvement shall be destroyed or damaged by fire or other casualty Purchaser
shall nevertheless close title to all of the Property pursuant to all the
terms and conditions of this Agreement, subject to the following: (i) Seller
shall not (x) adjust and settle any insurance claims, or (y) enter into any
construction or other contract for the repair or restoration of the damaged
Property without Purchaser's prior written consent, which consent shall not be
unreasonably withheld or delayed, and (ii) at the Closing, the Seller shall
(1) pay over to Purchaser the amount of any insurance proceeds, to the extent
collected by Seller in connection with such casualty, less the amount of the
actual expenses incurred by Seller in connection with collecting such proceeds
and making any repairs to the Property occasioned by such casualty pursuant to
any contract, (2) assign to Purchaser all of Seller's right, title and
interest in and to any insurance proceeds that are uncollected at the time of
the Closing and that may be paid in respect of such casualty, and (3) pay to
Purchaser the amount of any policy deductibles pursuant to the insurance
policies covering such fire or other casualty and maintained by Seller (as
opposed to insurance or self-insurance maintained by the Tenant). The Seller
shall reasonably cooperate with Purchaser in the collection of such proceeds,
which obligation shall survive the Closing.
(c) For the purpose of this Section, the phrase a "MATERIAL PART" of
an Improvement shall mean that (i) the cost of repair or restoration is
estimated by a reputable contractor selected by the Seller and reasonably
satisfactory to Purchaser, to be in excess of One Million Eight Hundred Twenty
Five Thousand and 00/100 Dollars ($1,825,000.00) or (ii) Tenant shall have the
right to cancel the Lease as a result of such casualty.
SECTION 10: CONDEMNATION PENDING CLOSING
Section 9.01. If, during the Contract Period, condemnation or eminent
domain proceedings shall be commenced by any competent public authority
against the Real Property or any part thereof, the Seller shall promptly give
Purchaser written notice thereof. After notice of the commencement of any such
proceedings (from the Seller or otherwise) and in the event that the taking of
such property is "Material" (as hereinafter defined), Purchaser shall have the
right (i) to accept title to the Property subject to the proceedings, and pay
to the Seller the full Purchase Price, whereupon any award payable to the
Seller shall be paid to Purchaser and the Seller shall deliver to Purchaser at
the Closing all assignments and other documents reasonably requested by
Purchaser to vest such award in Purchaser, or (ii) to rescind this Agreement
and upon the return of the Deposit, this Agreement shall be null and void and
neither party will have any further obligations hereunder. A taking shall be
deemed to be Material if said taking would either (i) materially interfere
with the use and operation of the Property for the contemplated use thereof,
or (ii) reduce the estimated value of the Property (as reasonably determined
by an independent M.A.I. appraiser chosen by Purchaser and reasonably
satisfactory to the Seller) by $500,000.00 or more or (iii) create a right of
the Tenant to cancel the Lease as a result of such condemnation.
Section 9.02. In the event of a non-Material taking of any part of
the Real Property on or before the Closing Date, Purchaser shall accept the
Real Property subject to the proceedings and pay to the Seller the full
Purchase Price, whereupon any award payable to Seller shall be delivered to
Purchaser and Seller shall deliver to Purchaser at the Closing all assignments
and other documents reasonably requested by Purchaser to vest such award in
Purchaser.
SECTION 10: THE SELLER'S WARRANTIES AND REPRESENTATIONS
To induce Purchaser to enter into this Agreement and to accept the
Property from the Seller, the Seller makes the following representations and
warranties, all of which the Seller represents are true in all material
respects as of the date hereof and shall be true in all material respects as
of the Closing Date and shall be deemed remade as of that date:
Section 10.01. (a) The execution, delivery and performance of this
Agreement and consummation of the transaction hereby contemplated in
accordance with the terms of this Agreement will not violate any material
contract, agreement, commitment, order, judgment or decree to which any Seller
is a party or by which it or the Property is bound.
(b) The Seller has the full right, power and authority to sell and
convey the Property to Purchaser and the Seller has the full right, power and
authority to sell and convey such Property to Purchaser as provided herein and
to carry out such Seller's obligations hereunder. Seller shall deliver
reasonable proof of same to Purchaser at Closing.
(c) Upon execution, this Agreement shall be the valid and binding
obligation of Seller, enforceable against Seller in accordance with the terms
hereof.
Section 10.02. (a) Prior to the date of this Agreement, Seller has
delivered to Purchaser any environmental studies relating to the Real Property
of which Seller has Actual Knowledge.
(b) To Seller's knowledge there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation or proceeding, pending relating to Seller or any portion of the
Property or, to the Actual Knowledge of each Seller, threatened against any
Seller or any portion of the Property relating in any way to the Environmental
Laws or any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder.
Section 10.03. Except as set forth on Schedule 3 attached, to
Seller's Actual Knowledge there are no existing or pending litigation, claims,
condemnations or sales in lieu thereof with respect to any aspect of the
Property nor, to the Actual Knowledge of Seller, have any actions, suits,
condemnations, proceedings or claims been threatened or asserted. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending or
threatened against the Seller. In the event any proceeding of the character
described in this Section is initiated or threatened against the Seller prior
to the Closing Date, the Seller shall promptly advise Purchaser thereof in
writing.
Section 10.04. Seller has delivered a true, correct and complete copy
of the Lease to Purchaser. Seller has no Actual Knowledge of any leases other
than the Lease. To Seller's Actual Knowledge, the Lease constitutes the entire
agreement between Seller and Tenant and Seller has no Actual Knowledge of any
amendments, guaranties or other agreements, written or oral, relating thereto.
To Seller's Actual Knowledge, (i) Seller has received no notice of termination
with respect to the Lease; (ii) Tenant has not asserted any defense to,
offsets or claims against, rent payable by it or the performance of its other
obligations under the Lease, (iii) Seller has received no notice that Tenant
is in default under the Lease; (iv) all leasing commissions due with respect
to the Lease have been paid; (v) Tenant is not in arrears in the payment of
any sums or in the performance of any material obligation required of it under
the Lease; and (vi) Tenant has not paid any rent or other charges under the
Lease more than one (1) month in advance.
Section 10.05. Seller is not a "foreign person" as defined in Section
1445 of the Internal Revenue Code of 1986, as amended, and the income tax
regulations thereunder.
Section 10.06. There is no action, suit or proceeding pending or, to
Seller's Actual Knowledge, threatened against the Seller and or relating to or
arising out of the ownership, management or operation of the Property, in any
court or before any federal, state or municipal department, commission, board,
bureau or other governmental instrumentality.
Section 10.07. Attached hereto as Schedule 2 is a list of all
Brokerage Agreements of which Seller has Actual Knowledge.
All representations, warranties and covenants of the Seller contained
in this Agreement or in any affidavit or other document delivered in
connection herewith shall be true and correct in all material respects at
Closing and shall survive the Closing for a period of six (6) months.
If (x) any of the representations and warranties set forth above
prove to have been false or inaccurate when made and is asserted in a writing
delivered by Purchaser to the Seller during the applicable survival period,
and (y) Purchaser incurs a Material Loss as a result of such falsity, then
Seller shall reimburse Purchaser for such Material Loss up to the amount of
One Million Dollars $1,000,000. It is specifically acknowledged that, if the
Closing occurs, the Seller shall have no liability with respect to any
misrepresentations which were actually known by Purchaser to be false or
inaccurate at Closing, notwithstanding that such falsity or inaccuracy may
have caused a Material Loss.
SECTION 11: THE SELLER'S INSTRUMENTS AT CLOSING
Section 11.01. The Seller shall execute, or where applicable, cause
the following to be delivered to Purchaser on the Closing Date:
(a) a special warranty deed in the form of Exhibit C hereto; and
(b) assignments or other instruments in recordable form transferring
and assigning to Purchaser Seller's interest in the Property (other than the
Real Estate) in the form of Exhibit D hereto; and
(c) a certificate from the Seller stating that all representations
and warranties made by the Seller in this Agreement are true in all material
respects as of the Closing Date as if made on such date; and
(d) a duly executed affidavit as may be required pursuant to Section
1445 of the Internal Revenue Code in the form of Exhibit E hereto; and
(e) such other documents, instruments, resolutions and other material
reasonably requested by Purchaser as may be necessary to effect the transfer
of title hereunder or as may be reasonably requested by the Title Insurer,
provided that the same shall not require any representations more
comprehensive than those set forth in this Agreement.
SECTION 12: PURCHASER'S REPRESENTATIONS AND WARRANTIES
Section 12.01. To induce the Seller to enter into this Agreement,
Purchaser makes the following representations and warranties, all of which
Purchaser represents are true in all material respects as of the date hereof
and shall be true in all material respects as of the Closing Date and shall be
deemed to be made as of that date.
(a) Purchaser is and at the Closing shall be a real estate investment
trust duly organized and validly existing and in good standing under the laws
of the State of Maryland with full power and authority to own and purchase the
Property and to take all actions required by this Agreement.
(b) The execution, delivery and performance of this Agreement and
consummation of the transaction hereby contemplated in accordance with the
terms of this Agreement will not violate the Declaration of Trust or any
material contract, agreement, commitment, order, judgment or decree to which
Purchaser is a party or by which it is bound, and Purchaser has obtained (or
will, by the Closing, have obtained) all consents necessary (whether from a
governmental authority or other third party) in order for it to consummate the
transactions contemplated hereby. (c) The party or parties executing this
Agreement on behalf of Purchaser have been duly authorized and are empowered
to bind Purchaser to this Agreement and to take all actions required by this
Agreement. (d) Upon execution, this Agreement shall be the binding obligation
of Purchaser, enforceable against Purchaser in accordance with the terms
hereof. (e) No action, suit or proceeding is pending or, to Purchaser's
knowledge, threatened against Purchaser which would materially adversely
affect Purchaser's or financial condition or its ability to fully perform its
obligations pursuant to this Agreement. (f) The execution and delivery of this
Agreement and the performance by Purchaser of its obligations hereunder do not
and will not conflict with or violate any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Purchaser, including, without
limitation, the United States of America, the State of New York or any
political subdivision of any of the foregoing, or any decision or ruling of
any arbitrator to which Purchaser is a party or by which Purchaser is bound or
affected and no consent of any governmental agency is required.
All representations, warranties and covenants of Purchaser contained
in this Agreement or in any affidavit or other document delivered in
connection herewith shall be true and correct in all material respects at
Closing and shall survive the Closing for a period of six (6) months.
If (x) any of the representations and warranties set forth above
prove to have been false when made and such falsity is asserted in writing
delivered by the Seller to Purchaser during the applicable survival period,
and (y) the Seller incurs a Loss as a result of such falsity, then Purchaser
shall reimburse Seller for such loss and, in the event that Purchaser fails to
do so, the Seller shall be entitled to recover such Loss through all remedies
available at law or in equity. It is specifically acknowledged that, if the
Closing occurs, Purchaser shall have no liability with respect to
misrepresentations which were actually known by the Seller at Closing.
SECTION 13: PURCHASER'S INSTRUMENTS AT CLOSING
Section 13.01. On the Closing Date, Purchaser shall cause the Escrow
Agent to deliver the Purchase Price, subject to adjustments and prorations set
forth herein, to the Seller. Additionally, on the Closing Date, Purchaser
shall execute and deliver to the Seller the following:
(a) the Assignment and Assumption Agreement in the form of Exhibit D
attached hereto; and
(b) such other documents, instruments, resolutions and other material
necessary to effect the transfer of title hereunder and reasonably requested
by the Seller or the Title Insurer.
SECTION 14: CONTRACT PERIOD
Section 14.01. Throughout the Contract Period, the Seller shall
continue to fulfill its material obligations under the Lease. During the
Contract Period, any amendments to the Lease, and all actions which have a
material effect upon the Lease, the Property or its operation, shall be
subject to Purchaser's approval, which may be given in its sole and absolute
discretion.
Section 14.02. Seller shall not, without the written consent of
Purchaser enter into any agreements relating to the ownership and operation of
the Property unless such contract(s) shall be fully cancelable or terminable
prior to the Closing Date.
SECTION 15: BROKERAGE
Section 15.01. Purchaser and the Seller represent and warrant to each
other that no broker or person was in any way instrumental or had any part in
bringing about this transaction except Insignia/ESG, Inc., whose fees the
Seller shall pay. Purchaser agrees that, should any claim be made for
commissions by any broker or person arising by, through or on account of any
act of Purchaser or Purchaser's representatives, Purchaser shall indemnify and
hold the Seller harmless from and against any and all claim, liability, cost
or expense (including reasonable attorneys' fees) in connection therewith. The
Seller agrees that should any claim be made for commissions by any broker or
person arising by, through or on account of any act of any Seller or such
Seller's representatives, Seller shall indemnify and hold Purchaser harmless
from and against any and all claim, liability, cost or expense (including
reasonable attorneys' fees) in connection herewith. The provisions of this
paragraph shall survive delivery of the deed, but the provisions hereof shall
not be deemed or construed as a covenant for the benefit of any third party.
SECTION 16: CONDITIONS PRECEDENT TO CLOSING
Section 16.01. (a) Purchaser's obligations to close title under this
Agreement on the Closing Date shall be subject to the satisfaction of the
following conditions precedent on or prior to the Closing Date:
(i) all of the Seller's representations and warranties made in
this Agreement shall be true and correct in all material respects as
of the Closing Date as if they were made on that date;
(ii) the Seller shall have performed all material obligations
and agreements undertaken by it herein to be performed at or prior to
the Closing Date;
(iii) the Seller shall have no actual knowledge of any material
default under the Lease and the Estoppel Certificate shall not
indicate the existence of an uncured default under the Lease;
(iv) Purchaser shall have received the Estoppel Certificate
substantially in the form of Exhibit F, executed by the Tenant, and
without any material modifications thereto; and
(v) The Title Company shall be prepared to issue the title
policy pursuant to Section 6.01.
(b) The Seller's obligations to close title under this Agreement on
the Closing Date shall be subject to the satisfaction of the following
conditions precedent on the Closing Date:
(i) all of Purchaser's representations and warranties made in
this Agreement shall be true and correct in all material respects as
of the Closing Date as if they were made on that date; and
(ii) Purchaser shall have performed all material obligations and
agreements undertaken by it herein to be performed at or prior to the
Closing Date. CLOSING7:
Section 17.01. The closing of title to the Property (the "CLOSING")
shall take place at the offices of Commonwealth Land Title Insurance, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on or before July 30, 1999 (time being of the
essence).
SECTION 18: EXPENSES:
Section 18.01. Each party will bear its own legal expenses in
connection with this transaction. Seller shall pay any deed recording fees and
the cost of the standard title insurance policy. Purchaser shall pay the cost
of any extended title insurance policy and all other costs and expenses of
preparing for and concluding this transaction, including the cost of surveys,
engineering reports, environmental reports, legal use opinions and the like.
In the event that the Closing does not take place, this paragraph 18 will
survive and will be binding on both Purchaser and Seller.
SECTION 19: NOTICES
Section 19.01. All notices, requests and demands to be made hereunder
to the parties hereto shall be in writing (at the addresses set forth below)
and shall be given by any of the following means: (a) personal delivery
(including, without limitation, overnight delivery, courier or messenger
services); (b) telecopying (if electronically confirmed in writing and with a
copy delivered by one of the other means) or (c) registered or certified,
first-class United States mail, postage prepaid, return receipt requested.
Notice by a party's counsel shall be deemed to be notice by such party. All
notices to the Seller shall be sent to the address set forth below. Such
addresses may be changed by notice to the other parties given in the same
manner as provided above. Any notice, demand or request sent (x) pursuant to
subsection (a) shall be deemed received upon such personal delivery, (y)
pursuant to subsection (b) shall be deemed received on the day it is
dispatched by telecopier and (z) pursuant to subsection (c) shall be deemed
received upon delivery or the date on which delivery was refused.
If to Purchaser:
HUB Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To Seller c/o Metropolitan Partners, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Metropolitan Partners, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇ & Wood LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 20: DEFAULT
Section 20.01. Purchaser's Default. If Purchaser shall be in default
of any obligations imposed upon Purchaser by this Agreement and the Closing
shall not timely occur as a result thereof, and the Seller has performed or
has offered to perform its obligations hereunder or if there is a material
breach of any of Purchaser's representations and warranties, then the Seller
shall have the right to treat this Agreement as having been breached by
Purchaser and the Seller's sole remedy on account of such breach shall be the
right to terminate this Agreement by written notice to Purchaser or
Purchaser's attorney. Upon such termination (a) Purchaser shall forfeit all
rights and claims with respect to the Property pursuant to this Agreement and
to the Deposit; and (b) Escrow Agent shall remit the Deposit to the Seller.
The Seller and Purchaser hereby agree that payment of the Deposit to the
Seller shall be deemed to be fair and adequate, but not excessive, liquidated
damages based upon the following considerations which the Seller and Purchaser
agree would constitute damages to the Seller for any default by Purchaser but
which are impossible to quantify, to wit: (i) the removal of the Property from
the real estate market together with the uncertainty of obtaining a new
purchaser at the same or greater purchase price; (ii) the expenses incurred by
the Seller, including (but not by way of limitation) attorneys' fees, taxes,
mortgage interest, and other items incidental to the maintenance of the
Property until it is eventually sold; and (iii) all other expenses incurred by
the Seller as a result of Purchaser's default.
In the event of such termination, Purchaser shall immediately return all due
diligence material, reports and studies delivered to Purchaser by the Seller
(without Purchaser retaining copies thereof).
Section 20.02. The Seller's Default. In the event the Seller is in
default by reason of a material breach of the Seller's representations and
warranties and the same cannot be cured within thirty (30) days without harm
to Purchaser, Purchaser's sole remedy shall be to demand the immediate return
of the Deposit and the cancellation of this Agreement. In the event the Seller
is in default by reason of Seller's failure or refusal to deliver title in
accordance with the terms of this Agreement for more than ten (10) calendar
days after receipt of written notice thereof has been given to the Seller,
Purchaser remedies shall include the right to (a) immediate return of the
Deposit and the cancellation of this Agreement or (b) an action to
specifically enforce this Agreement. Purchaser shall have no other rights or
remedies against the Seller on account of a default. Nothing contained herein
shall limit Purchaser's rights and remedies after Closing with respect to a
breach of Seller's representations and warranties as set forth in Section 10.
SECTION 21: ASSIGNMENT
Section 21.01. This Agreement and Purchaser's rights hereunder may not be
assigned by Purchaser without the prior written consent of the Seller except
that Purchaser may designate, no later than ten (10) days prior to Closing, a
wholly owned subsidiary or Affiliate as the entity to take title to the
Property but such designation shall not relieve Purchaser with respect to any
liability hereunder.
SECTION 22: ESTOPPEL CERTIFICATE
Section 22.01. Seller shall use reasonable efforts to obtain from
Tenant an estoppel certificate in the form attached hereto as Exhibit F (the
"Tenant Estoppel").
SECTION 23: COUNTERPARTS
Section 23.01. This Agreement may be executed in counterparts. The
signatures of the parties who sign different counterparts of this Agreement or
any of the instruments executed to effectuate the purposes of this Agreement
shall have the same effect as if those parties had signed the same
counterparts of this Agreement or of any such instrument.
SECTION 24: INTENTIONALLY DELETED
SECTION 25: MISCELLANEOUS
Section 25.01. Subject to Section 21 hereof, this Agreement shall be
binding upon and shall inure to the benefit of the Seller and Purchaser and
their respective successors and assigns.
Section 25.02. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona. This Agreement shall be
construed without regard to any presumption or other rule requiring
construction against the party causing this Agreement to be drafted. If any
words or phrases in this Agreement shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Agreement shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Agreement and no implication
or inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. Section 25.03. The headings of the several Sections contained in this
Agreement are inserted only as a matter of convenience and for reference and
in no way define, limit or describe the scope of this Agreement or the intent
of any provision thereof. Section 25.04. The invalidity or unenforceability of
any provision of this Agreement shall not affect or impair any other provision
of this Agreement. Section 25.05. This Agreement contains the entire agreement
between the Seller and Purchaser, and any and all prior understandings and
dealings heretofore had are merged herein and any agreement hereafter made
shall be ineffective to change, modify or discharge this Agreement in whole or
in part unless such agreement hereafter made is in writing and signed by the
Seller and Purchaser. Section 25.06. Purchaser shall have no right to record
this Agreement or a memorandum hereof. If Purchaser shall so record this
Agreement or a memorandum, Purchaser shall be in default of the terms and
conditions of this Agreement. Section 25.07. Nonliability of Trustees. THE
DECLARATION OF TRUST ESTABLISHING PURCHASER, A COPY OF WHICH, TOGETHER WITH
ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT
OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME
"HUB PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF PURCHASER SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, PURCHASER. ALL PERSONS DEALING WITH PURCHASER, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF PURCHASER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE
OF ANY OBLIGATION. THE PROVISIONS OF THIS SECTION 25.10 SHALL SURVIVE THE
CLOSING.
SECTION 26: ESCROW AGENT
Section 26.01. The Seller and Purchaser hereby designate as "ESCROW
AGENT" to receive and hold the Deposit delivered herewith by Purchaser in
accordance with Section 3 hereof, and Escrow Agent agrees to act as such
Escrow Agent subject to the provisions of this Section 26.
Section 26.02. The Deposit shall be deposited in an interest bearing
money market account at any federally insured banking institution. Section
26.03. On receipt by Escrow Agent of a statement executed by the Seller and
Purchaser that title to the Property has closed under this Agreement, Escrow
Agent shall promptly deliver such Deposit to Purchaser. Section 26.04. On
receipt by Escrow Agent of a statement executed by Purchaser prior to, on or
after the Closing Date that title to the Property has not closed under this
Agreement because of a default by Seller under this Agreement or because of
Seller's inability to convey title to the Property in accordance with the
provisions of this Agreement or because any contingency contained in this
Agreement has not been satisfied or waived, Escrow Agent shall, within ten
(10) Business Days, deliver a copy of said statement to the Seller and return
such Deposit to Purchaser on the tenth (10th) Business Day after receipt by
the Seller of said statement unless Escrow Agent, prior to such return,
receives from the Seller a statement contesting the accuracy of Purchaser's
statement and demanding retention of said Deposit by Escrow Agent. Section
26.05. On receipt by Escrow Agent of a statement executed by the Seller prior
to, on or after the Closing Date that title to the Property has not closed
under this Agreement because of a default by Purchaser under this Agreement,
Escrow Agent shall within ten (10) Business Days deliver said statement to
Purchaser and deliver such Deposit to the Seller on the tenth (10th) Business
Day after receipt by Purchaser of such statement unless Escrow Agent, prior to
such delivery, receives from Purchaser a statement contesting the accuracy of
the Seller's statement and demanding retention of said Deposit by Escrow
Agent. Section 26.06. On receipt by Escrow Agent of a statement from the
Seller or Purchaser, as the case may be, under subparagraph 26.04 or 26.05
above, Escrow Agent shall retain the Deposit and thereafter deliver the same
to either the Seller or Purchaser as the Seller or Purchaser may direct by a
statement executed by them both, provided if there is any dispute with respect
to the Deposit, Escrow Agent may immediately and with notice to the Seller and
Purchaser, surrender said Deposit to a court of competent jurisdiction for
such disposition as may be directed by such court. Section 26.07. Upon
delivery of the Deposit to either Purchaser, the Seller or a court of
competent jurisdiction under and pursuant to the provisions of this Section,
Escrow Agent shall be relieved of all liability, responsibility or obligation
with respect to or arising out of the Deposit and any and all of its
obligations arising therefrom. Section 26.08. The Escrow Agent shall not be
liable for any error of judgment or for any act done or omitted by it in good
faith or for anything which it may in good faith do or refrain from doing in
connection herewith or for any negligence other than its gross negligence, nor
shall the Escrow Agent be answerable for the default or misconduct of its
agents, attorneys or employees if they be selected with reasonable care. The
Escrow Agent is authorized to act upon any document believed by it to be
genuine and to be signed by the proper party or parties and will incur no
liability in so acting.
Section 26.09. Seller and Purchaser acknowledge that Escrow Agent is
acting solely as a stakeholder. Seller and Purchaser shall jointly and
severally indemnify and hold the Escrow Agent harmless from and against any
cost, expenses, claims or liabilities arising in connection with its
performance hereunder as Escrow Agent, except to the extent caused by Escrow
Agent's gross negligence and willful misconduct.
Section 26. 10. The Escrow Agent has executed this Agreement for the
sole purpose of agreeing to act as such in accordance with the terms of this
Agreement.
SECTION 27: CONFIDENTIALITY/PUBLICATION
Section 27.01. Except as may be required by law or as may be
necessary to effectuate the contemplated transaction or except as set forth
below, both the Seller and Purchaser, individually and on behalf of their
representatives (including lenders, principals, affiliates or clients) agree
that they and their respective representatives shall hold both the terms and
conditions of this Agreement and its existence as confidential information and
will not disclose such terms, conditions or existence or the fact that the
negotiations are taking place, to any third party without first obtaining the
prior written consent of the other to such statements. Seller shall not trade
in any public securities of Purchaser while the closing of this transaction is
pending unless and until a public pronouncement concerning the transaction
contemplated by this Agreement is made. This Section shall survive for one (1)
year after the termination of this Agreement if the Closing does not occur.
This Section shall constitute a binding and enforceable agreement under
applicable law.
IN WITNESS WHEREOF, the Seller and Purchaser have executed this Agreement as
of the day and year first above written.
SELLER
METROPOLITAN OPERATING PARTNERSHIP, L.P.
By: Metropolitan Partners LLC, its general
partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name:
Title:
PURCHASER:
HUB PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name:
Title:
ESCROW AGENT
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name:
Title:
SCHEDULE 1
List of Personal Property
NONE
SCHEDULE 2
Brokerage Agreements
NONE
SCHEDULE 3
Litigation
NONE
SCHEDULE 4
Permitted Encumbrances
[To be attached]
Schedule 5
Marked Title Commitment
[To be attached]
Exhibit A: Description of the Land
Exhibit B:
LEASE
Exhibit C
When recorded, return to:
___________________________
___________________________
___________________________
___________________________
_______________________________________________________________________________
(Space above this line for Recorder's use)
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars and other valuable
consideration, the receipt and sufficiency of which are acknowledged,
Metropolitan Operating Partnership, L.P., a ______________ limited partnership
("Grantor"), conveys to HUB Properties Trust, a Maryland real estate
investment trust, the following described real property situated in Maricopa
County, Arizona, together with all buildings, structures, improvements and
fixtures thereon and all rights and privileges appurtenant thereto:
See the legal description set forth in Exhibit "A" attached
and incorporated by this reference (the "Property").
SUBJECT TO only those matters set forth in Exhibit "B" attached and
incorporated by this reference.
Grantor binds itself and its successors to warrant and defend the
title to the Property against all acts of Grantor and no other, subject to
only the matters set forth above.
Dated this _____ day of July, 1999.
Grantor:
By ________________________________, its general partner
By___________________________________________________
Name:
Title:
STATE OF_______________ )
) ss.
County of ________________ )
The foregoing instrument was acknowledged before me this ____ day of
July, 1999, by ________________________________ as _________________________
of Metropolitan Operating Partnership, L.P., on behalf of the partnership.
Notary Public
My Commission Expires:
Exhibit D
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT (this "Assignment"), dated this ____ day of
_________, 199_, is made by and among _________________________ (the
"Assignor") and _______ ___________________________ (the "Assignee").
WHEREAS, Assignee has this day purchased Assignor's interest in the
real property legally described on the attached Exhibit A (the "Property");
and
WHEREAS, the execution and delivery of this Assignment is a condition
precedent to the purchase by the Assignee of the Property;
NOW, THEREFORE, in consideration of the purchase and sale of the
Property, and for other good and valuable consideration, Assignor agrees as
follows (unless otherwise defined, all capitalized terms shall have the
meanings set forth in the Purchase and Sale Agreement dated as of
_______________, 199_ between Assignor and Assignee (the "Purchase and Sale
Agreement"));
1. Assignor hereby grants, transfers and assigns to Assignee and
Assignee accepts from Assignor all the right, title and interest of Assignor
in and to the following (the "Assigned Assets"):
(i) all permits and licenses, certificates of occupancy,
approvals, dedications, subdivision maps or plats and entitlements
issued, approved or granted by federal, state or municipal
authorities or otherwise in connection with the Property and its
renovation, construction, use, maintenance, repair, leasing and
operation; and all licenses, consents, easements, rights of way
and approvals required from private parties to make use of
utilities, to insure pedestrian ingress and egress to the Property
and to insure continued use of any vaults under public
rights-of-way presently used in the operation of the Property;
(ii) the use of any names by which any of the Property is commonly
known, and all goodwill, if any related to said names;
(iii) all Security Deposits, the Lease, and all correspondence
with the Tenant under the Lease, all booklets and manuals relating
to the maintenance and operation of the Property; and
(iv) the Books and Records, Warranties, Brokerage Agreements and
Personal Property.
The foregoing are collectively referred to herein as the "Assigned
Assets". The foregoing assignment is made without recourse, and on an "as-is,
where-is, with all faults" basis, without any representation or warranty by
Assignor except as may be expressly set forth in the Purchase and Sale
Agreement.
2. Assignor shall retain full responsibility for all the obligations
under the Assigned Assets accruing prior to the date hereof and Assignor
agrees to indemnify and hold Assignee harmless from any claims, liabilities or
costs arising therefrom.
3. Assignee agrees to assume full responsibility for all the
obligations under the Lease accruing on or after the date hereof and Assignee
agrees to indemnify and hold Assignor harmless from any claims, liabilities or
costs arising therefrom.
4. This instrument may be executed in counterparts, each of which
shall constitute an original and all of which, taken together, shall
constitute one and the same instrument.
5. This Assignment shall be governed by and construed in accordance
with the laws of the State of Arizona. This Assignment shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Agreement to be drafted.
6. Nonliability of Trustees. THE DECLARATION OF TRUST ESTATE
ESTABLISHING ASSIGNEE, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENT AND
TAXATION TO THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HUB PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEE,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF ASSIGNEE SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY FOR ANY OBLIGATION OF, OR CLAIM AGAINST, ASSIGNEE. ALL PERSONS
DEALING WITH ASSIGNEE, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF ASSIGNEE
FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have executed this Assignment as of
the date first written above.
ASSIGNOR: ASSIGNEE:
_________________________ _________________________________________
By: _________________________________
By:_______________________________ By: _____________________________
Name: Name:
Title:
Exhibit E
FIRPTA CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by ("Seller"),
Seller hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is (_________________) and
3. Seller's principal place of business is (_______________________________).
Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct
and complete, and I further declare that I have authority to sign this
document on behalf of Seller.
By: ________________________________
By: _______________________________
Name:
Title:
Subscribed and sworn to
before me this ____ day of
___________, 199_.
____________________________
Notary Public
Exhibit F
BLUE CROSS AND BLUE SHIELD OF ARIZONA
TENANT ESTOPPEL CERTIFICATE
Building: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Lease Date: June 25, 1999 between:
Lessor: Metropolitan Operating Partnership, L.P.
Lessee: Blue Cross and Blue Shield of Arizona
(said lease, together with any modifications or amendments or guarantees
described below, the "Lease").
The undersigned, Lessee under the Lease, certifies the following
to Lessor, Hub Properties Trust and their respective subsidiaries, affiliates,
successors and assigns, and any transferee or lender of any of the foregoing
who are relying thereon:
Attached hereto as Exhibit A is a true, correct and complete
copy of the Lease, and that the Lease has not been modified, changed, altered
or amended in any respect except as expressly set forth below and attached to
Exhibit A; the base rent payable under the Lease is set forth at Schedule I
attached hereto. The Lease is presently valid and binding, in full force and
effect, without default and has not been assigned, modified, supplemented, or
amended in any way except as indicated at the end of this Certificate; that
the same represents the entire agreement between the parties as to this
leasing and this property; the term thereof has commenced; Lessee has accepted
possession and fully occupies the premises; full rental is now accruing
thereunder (and all rent and charges are current and not prepaid more than one
month in advance); Lessor has performed all obligations required to be
performed to date under the Lease; that any work and all other improvements to
the leased premises required to be furnished or constructed by the Lessor have
been completed; that the only tenant improvement allowance, credit or payment
to which Lessee is entitled is $500,000 which is payable in accordance with
the terms of the First Addendum to Lease; Lessee has no options to purchase or
lease the premises and no rights of first offer or rights of first refusal;
that, to the knowledge of Lessee, there exists no default nor state of facts
which with notice and/or the passage of time would constitute a default
thereunder on the part of Lessee or, to the knowledge of Lessee, on the part
of the Lessor thereunder; on this date there are no existing defenses or
offsets which the undersigned has against the enforcement of the Lease by the
Lessor; and no security has been deposited with Lessor; there are no actions,
voluntary or otherwise, pending or, to the best knowledge of Lessee,
threatened against Lessee under the bankruptcy, reorganization, moratorium or
similar laws of the United States, any state thereof or any other
jurisdiction, that Lessee has no right to free rent or any other concession or
abatement (except as set forth in the Lease).
BLUE CROSS AND BLUE SHIELD OF ARIZONA
By: _______________________________
Name:
Title:
Date:
Lease Modifications, Guarantees and Amendments,
If any, are listed as follows: First Addendum to Lease, dated June 25, 1999.
