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SALE-PURCHASE AGREEMENT
between
Acadia Realty Limited Partnership
and
Xxxx Northwood Associates Limited Partnership,
Seller
and
UrbanAmerica, L.P.,
Purchaser
Dated as of June 14, 2000
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LIST OF EXHIBITS
Exhibit
A Description of the Land
B Escrow Agreement
C Permitted Encumbrances
D Leases
E Actions
F Free Rent, Concessions, Allowances, Rebates Or Refunds
G Deed
H Assignment and Assumption of Leases and Security Deposits
I Assignment and Assumption of Contracts and Licenses
J Contracts
K Intangible Property/Assignment and Assumption of Intangible Property
L Notice to Tenants
M Seller's FIRPTA Affidavit
N Major Tenants
O Tenant Estoppel Certificate
P Insurance Policies
Q Collection Account; Reimbursement Amount Adjustment
SALE PURCHASE AGREEMENT (this "Agreement"), dated as of the 14th day of
June, 2000 by and between Acadia Realty Limited Partnership ("Acadia"), a
Delaware limited partnership, and Xxxx Northwood Associates Limited Partnership
("Borrower"), a Florida limited partnership, both having an office at 00
Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (Acadia and Borrower are
sometimes hereinafter collectively referred to as "Seller"), and UrbanAmerica,
L.P., a Delaware limited partnership, having an office at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, ("Purchaser").
WITNESSETH
WHEREAS, Acadia is the fee owner of the Premises commonly known as
Northwood Centre which is located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
00000 ("Premises"); and
WHEREAS, pursuant to that certain lease dated March 1, 1997 ("Ground
Lease"), Acadia let and demised the Premises to Borrower; and
WHEREAS, Seller and Purchaser now desire to enter into an agreement
whereby, subject to the terms and conditions contained herein, Seller shall sell
the Premises and the Ground Lease to Purchaser and Purchaser shall purchase the
Premises and the Ground Lease from Seller; and
WHEREAS, Purchaser acknowledges that, except as set forth herein,
Seller has made no representations or warranties to Purchaser regarding the
Premises or the operation thereof.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, it is hereby agreed as follows:
1. Sale of Premises
Seller agrees to sell and convey to Purchaser, and Purchaser agrees to
purchase from Seller, at the price and upon the terms and conditions set forth
in this Agreement, all those certain plots, pieces and parcels of land located
in the City of Tallahassee, County of Xxxx and State of Florida, as more
particularly described in Exhibit "A" annexed hereto and made a part hereof (the
"Land") and all of its interest in the Ground Lease, together with (i) all
buildings and other improvements situated on the Land (collectively, the
"Buildings"), (ii) all easements, rights of way, reservations, privileges,
appurtenances, and other estates and rights of Seller pertaining to the Land and
the Buildings, (iii) all right, title and interest of Seller in and to all
fixtures, pumps, machinery, generators, equipment, supplies and other articles
of personal property attached or appurtenant to the Land or the Buildings, or
located thereon or used in connection therewith (collectively, the "Personal
Property"), (iv) all oil, gas and mineral rights of Seller, if any, in and to
the Land, (v) all right, title and interest of Seller, if any, in and to the
trade names of the Buildings, and (vi) all right, title and interest of Seller,
if any, in and to all strips and gores, all alleys adjoining the Land, and the
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land to the center line thereof, and all right, title
and interest of Seller, if any, in and to any award made or to be made in lieu
thereof and in and to any unpaid award for any taking by condemnation or any
damages to the Land or the Buildings by reason of a change of grade of any
street, road or avenue (the Land, together with all of the foregoing items
listed in clauses (i) - (vi) above being herein sometimes collectively referred
to as the "Premises").
2. Purchase Price
The purchase price to be paid by Purchaser to Seller for the Premises
(the "Purchase Price") is Thirty-One Million and 00/100ths ($31,000,000.00)
Dollars (subject to adjustment as hereinafter described) payable as follows:
(a) Three Hundred Thousand and 00/100ths ($300,000.00) Dollars due
upon execution of this Agreement ("Initial Deposit") simultaneously with the
execution and delivery of this Agreement, by a bank wire transfer of immediately
available funds to Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx ("Escrow Agent") and One
Million Seven Hundred Thousand and 00/100ths ($1,700,000.00) Dollars
("Additional Deposit") payable to the Escrow Agent prior to the expiration of
the Due Diligence Period (as defined in Section 4(a) of this Agreement) time
being of the essence, (the Initial Deposit and Additional Deposit shall be
collectively referred to herein as the "Downpayment"). The Downpayment shall be
held by Escrow Agent in an interest-bearing account in accordance with the terms
of the escrow agreement to be entered into between the parties and Escrow Agent
in the form annexed hereto as Exhibit "B" ("Escrow Agreement") of this
Agreement. The Downpayment and any interest accrued thereon while held by the
Escrow Agent shall hereinafter collectively be referred to as the "Fund"; and
(b) By Purchaser assuming, at Closing, all of the obligations
contained in that certain note dated March 4, 1997 from Xxxx Northwood
Associates, Limited Partnership to Nomura Capital Asset Corporation ("Lender"),
in the original principal sum of $23,000,000.00 (the "Note") secured by that
certain Mortgage of even date and recorded on March 5, 1997 in the Official
Records Book 1989 at Page 2016 of the Public Records of Xxxx County, Florida
(the "Mortgage") which Purchaser shall assume. As of the date hereof, Purchaser
represents that the unpaid principal balance of the Loan is approximately
$22,242,000.00. Purchaser agrees that prior to Closing, there will be no payment
of principal on the Note beyond the regular monthly payments required in the
Loan Agreement (as hereafter defined) and Seller shall continue to pay when due
all obligations due thereunder; and
(c) An amount equal to the Purchase Price (reduced by the
Downpayment, if any) plus any amounts due Seller pursuant to Section 8(a) less
the outstanding balance of the Note as of the Closing Date shall be due and
payable at the Closing by bank wire transfer of immediately available federal
funds to Seller's account or to the account or accounts of such other party or
parties as may be designated by Seller on or before the Closing Date (as defined
in Section 6).
3. Assumption of Loan; Mezzanine Financing
(a) Pursuant to that certain Loan Agreement dated as of March 4,
1997 ("Loan Agreement"), Borrower, and Lender, completed a transaction wherein
and whereby Lender agreed to advance up to $23 Million to Borrower upon the
terms and conditions contained in the Loan Agreement and other agreements
referred to therein, (the Loan Agreement and the other documents are sometimes
hereinafter collectively referred to as the "Loan Documents"). As security for
the Note, Borrower executed and delivered the Mortgage to Lender wherein
Borrower granted and conveyed to Lender a lien and security interest in all of
Borrower's right, title and interest in the Ground Lease and Acadia joined in
the execution of the Mortgage to evidence that its interest in the Premises
would be subject and subordinate to the lien created thereby together with all
of the terms and conditions of all of the Loan Documents.
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Seller has advised Purchaser that, among other things, the sale of
the Premises without the consent of the Lender would constitute a default under
the Loan Documents thereby allowing the Lender to accelerate the Note and
obligate Borrower to prepay same together with the Yield Maintenance Premium (as
defined in the Loan Agreement). Seller's obligation to convey the Premises to
Purchaser pursuant to this Agreement is specifically conditioned upon Seller
being able to obtain Lender's consent to the sale of the Property subject to the
Loan Agreement and all of the Loan Documents without the necessity of the
payment of the Yield Maintenance Premium by Seller. Such consent shall be
contained in the estoppel certificate referred to in Section 3(e) herein and
must be obtained not more than ninety (90) days from the expiration of the Due
Diligence Period or either party may terminate this Agreement.
(b) Upon notice from Purchaser, Seller and Purchaser will jointly
use their collective good faith efforts to attempt to obtain Lender's consent to
the sale of the Premises to Purchaser subject to the outstanding balance then
due under the Note as well as all of the terms of the Loan Documents. Under no
circumstances shall Seller be obligated to pay any fee to Lender to obtain such
consent. Purchaser agrees to reasonably cooperate with Seller in its efforts to
obtain such consent and to pay all costs or fees imposed by the Lender to obtain
such consent. Such cooperation shall include, but not be limited to, Purchaser
(i) having its organizational documents conform to the reasonable requirements
of the Loan Agreement; (ii) providing Lender and the Rating Agencies with all
available background material on Purchaser and its principals as Lender or the
Rating Agencies may reasonably request; and (iii) agreeing to be bound by all of
the terms and conditions contained in the Loan Documents as well as such
reasonable modifications thereto as Lender or the Rating Agencies may reasonably
request, provided that such modifications do not adversely affect the economic
terms of the Note or Loan Agreement, do not increase the obligations or reduce
the rights of the borrower thereunder or require the expenditure of any sums by
Purchaser. Seller agrees to not modify any of the Loan Documents prior to
Closing without Purchaser's consent.
Seller and Purchaser shall keep each other fully apprised of its
discussions with Lender related to this Agreement. Subject to Section 6(b),
Seller shall have the right to extend the Closing Date for up to sixty (60) days
in order to obtain the consent of Lender to the transfer of the Premises to
Purchaser unless either party shall terminate this Agreement pursuant to the
immediately succeeding sentence. In the event that Lender fails or refuses to
give its consent within sixty (60) days from the expiration of the Due Diligence
Period, either party to this Agreement may terminate the Agreement, the Fund
shall be returned to Purchaser, and the parties hereto shall have no further
rights, duties, obligations or liabilities to one another hereunder except as
specifically provided herein to the contrary.
(c) The parties acknowledge that pursuant to Section 2.12 of the
Loan Agreement all revenue from the Premises is deposited into either the
Collection Account or the Security Deposit Account (as those terms are defined
in the Loan Agreement).
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(i) The Security Deposit Account. At the Closing, Seller will
assign to Purchaser all of its interest in the Security Deposit
Account.
(ii) The Collection Account. Pursuant to the Collection Account
Agreement all funds deposited in the Collection Account are
transferred on a daily basis into a Cash Collateral Account which
is composed of the following: (a) a Ground Rents Sub-Account; (b) a
Debt Service Payment Sub-Account; (c) a Basic Carrying Cost
Sub-Account; (d) a Capital Reserve Sub-Account; (e) a State of
Florida Lease Sub-Account; (f) an Emergency Holdback Sub-Account;
and (g) an Operating Expense Sub-Account. As of the date hereof,
the amounts in each of the foregoing Accounts is set forth on
Exhibit "Q". At the Closing, Seller will assign to Purchaser all of
its interest in all of the foregoing accounts and Purchaser shall
pay to Seller, in addition to the Purchase Price, the sum of One
Million Eight Hundred Thousand ($1,800,000) Dollars ("Reimbursement
Amount"). Until Closing, Seller shall have the right to access the
funds in the foregoing accounts in accordance with the terms of the
Loan Agreement except that Seller agrees not to access any of the
funds in the State of Florida Lease Sub-Account. In the event the
total of the funds in such Accounts is more or less than
$3,250,000, the Reimbursement Amount shall be adjusted in
accordance with the formula set forth on Exhibit "Q".
(d) Purchaser shall be in compliance with all of Lender's
reasonable requirements for the transfer of the Premises and the assumption of
the Note in accordance with the Loan Agreement, including but not limited to,
the requirement that Purchaser be a single purpose entity that does not engage
in any business or activity other than the ownership, operation and maintenance
of the Premises and activities incidental thereto. If Purchaser does not satisfy
Lender's reasonable requirements to be considered a single purpose entity,
Purchaser shall take all necessary steps to ensure compliance with such
requirements including, but not limited to, executing an assignment of its
rights and obligations under this Agreement (in accordance with the terms set
forth in Section 2) to an affiliated entity that does meet Lender's
requirements.
(e) As a condition of Closing, Seller shall obtain and deliver to
Purchaser an estoppel certificate executed by Lender dated not more than thirty
(30) days prior to Closing that indicates (i) its consent to the transfer of the
Premises to Purchaser and to the Purchaser's assumption of all of the
obligations under the Loan Documents; (ii) the outstanding balance due under the
Note; (iii) that the Loan Agreement is in full force and effect and has not been
modified (or if modified, setting forth all modifications); (iv) that there are
not any existing defaults by Seller and Borrower in the performance of their
obligations under the Loan Agreement; (v) the date through which interest has
been paid; (vi) the amount held in each of the sub-accounts referred to in
Section 3 of this Agreement; (vii) the capacity of the person executing such
certificate, and that such person is duly authorized to execute the same on
behalf of Lender; and (viii) that attached thereto is a true copy of each of the
Loan Documents and all amendments and modifications thereto ("Lender Estoppel").
In the event that the Lender Estoppel shall not state that attached thereto is a
true copy of each of the Loan Documents and all amendments and modifications
thereto, as a condition of Closing Seller shall execute and deliver to Purchaser
an estoppel certificate at Closing that indicates that attached thereto is a
true copy of each of the Loan Documents and all amendments and modifications
thereto.
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(f) During the Due Diligence Period (as defined hereinafter),
Purchaser shall seek to obtain a commitment for mezzanine financing from an
institution or other entity (the "Mezzanine Lender") in an amount such that,
when combined with the amount being assumed by Purchaser pursuant to the Loan
Agreement, it will constitute at least 75% of all of Purchaser's costs in
connection with purchasing the Premises, including without limitation, the
Purchase Price, the Reimbursement Amount, tenant improvement costs and other
closing costs, on terms and conditions satisfactory to Purchaser in its sole
discretion ("Mezzanine Financing"). If Purchaser shall obtain a commitment for
Mezzanine Financing (the "Commitment"), Purchaser shall provide Seller with a
copy of the Commitment at least five (5) business days prior to the expiration
of the Due Diligence Period. Prior to the expiration of the Due Diligence
Period, Seller shall provide Purchaser with written notice either approving the
terms of the Commitment, or disapproving the terms of the Commitment and
specifying the reasons therefor. In the event that Purchaser shall notify Seller
at or prior to Closing that the Commitment is no longer effective or that the
Mezzanine Lender has failed to provide the Mezzanine Financing, then Purchaser
shall not be obligated under this Agreement to purchase the Premises, unless
either (i) Seller shall have disapproved the terms of the Commitment prior to
the expiration of the Due Diligence Period, or (ii) Seller, upon its election,
shall provide Mezzanine Financing on substantially the same terms and conditions
as contained in the Commitment, except that (A) the interest rate shall be 18%
per annum, (B) Seller shall charge no points or financing fees to Purchaser, (C)
the loan may be prepaid by Purchaser at any time without penalty or charge, and
(D) the term of the loan shall be three (3) years with an option exercisable by
Purchaser in its sole discretion without charge to extend the term until the
expiration of the Loan Agreement.
4. Due Diligence Period
(a) The parties hereto acknowledge that Purchaser, as of the date
of the execution of this Agreement, has not yet had an opportunity to review,
examine, evaluate or otherwise satisfy itself with respect to the financial or
economic viability of the transaction contemplated hereby, the soil condition,
environmental condition, engineering inspections of the Premises, the terms and
provisions of the Leases, Contracts, Loan Documents or other aspects of the
Premises. In that regard, Purchaser shall have until July 24, 2000 (the "Due
Diligence Period"), in which to conduct such inspections and otherwise examine
same. In the event Purchaser fails to deliver the Additional Deposit to the
Escrow Agent prior to 5:00 p.m. on July 24, 2000 (the "Due Diligence Date"), or
prior thereto provides written notice to Seller of its election to cancel the
Agreement, which Purchaser may do in its sole discretion, this Agreement shall
be null and void and the Fund shall be returned to Purchaser, whereupon the
parties hereto shall have no further rights, duties, obligations or liabilities
to one another hereunder except as specifically provided herein to the contrary.
Purchaser's timely delivery of the Additional Deposit shall confirm its election
to proceed with the transaction in accordance with this Agreement.
(b) Immediately after executing this Agreement and until Closing,
Seller will furnish, or cause to be furnished, to Purchaser any documents and
other information requested by Purchaser with respect to the Premises and the
Loan Documents which Seller has in its possession (without payment of additional
fees therefor), including, but not limited to, the Premises Information (as
defined in Section 22(e)).
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(c) Seller agrees to promptly furnish Purchaser with all necessary
authorizations to make searches of records of applicable governmental and
quasi-governmental authorities, if required.
(d) Purchaser, its agents, employees and representatives shall have
access to the Premises at all times during regular business hours and subsequent
to the date of execution of this Agreement with full right to: (i) inspect the
Premises; (ii) review, inspect, copy and analyze all books, records and other
financial information and data of Seller with respect to the Premises and the
operation thereof; and (iii) subject to the conditions hereinafter set forth, to
conduct all tests thereon including, but not limited to, soil borings,
engineering investigations and hazardous waste studies, and to make such other
examinations with respect thereto as Purchaser, its counsel, licensed engineers,
surveyors or other representative may deem necessary or desirable (collectively
"Investigations").
Prior to its entry upon the Premises to conduct Investigations, (i)
Purchaser shall give Seller not less than two (2)-days prior notice before the
first such entry and one (1)-day prior notice before each subsequent entry, (ii)
the first such notice shall include sufficient information to permit Seller to
review the scope of the proposed Investigations, and (iii) neither Purchaser nor
Purchaser's Representatives shall permit any borings, drillings or samplings to
be done on the Premises without Seller's prior written consent which shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, Seller
hereby consents to such borings, drillings, or samplings which are reasonable
and customary in connection with the performance of a Phase I Environmental
Assessment. Any entry upon the Premises and all Investigations shall be during
Seller's normal business hours and at the sole risk and expense of Purchaser and
Purchaser's Representatives, and shall not interfere with the activities on or
about the Premises of Seller, its tenants and their employees and invitees.
Purchaser shall:
(i) promptly repair any damage to the Premises resulting from any
such Investigations and replace, refill and regrade any holes made in,
or excavations of, any portion of the Premises used for such
Investigations so that the Premises shall be in substantially the same
condition that it existed in prior to such Investigations;
(ii) fully comply with all laws applicable to the Investigations
and all other activities undertaken in connection therewith;
(iii) permit Seller to have a representative present during all
Investigations undertaken hereunder;
(iv) take all actions and implement all protections necessary to
ensure that all actions taken in connection with the Investigations,
and the equipment, materials, and substances generated, used or brought
onto the Premises pose no threat to the safety or health of persons or
the environment, and cause no damage to the Premises or other property
of Seller or other persons;
(v) Purchaser may speak with tenants of the Premises on the
following conditions: (A) Purchaser must provide Seller with a minimum
of two (2)-days notice; and (B) Seller must be present during any
conversations between Purchaser and tenants;
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(vi) maintain or cause any contractor to maintain, at Purchaser's
or its contractor's expense, a policy of comprehensive general public
liability insurance, with a broad form contractual liability
endorsement covering Purchaser's indemnification obligations contained
in Section 4(h) and Section 22(c), and with a combined single limit of
not less than $1,000,000 per occurrence for bodily injury and property
damage, automobile liability coverage including owned and hired
vehicles with a combined single limit of $1,000,000 per occurrence for
bodily injury and property damage, and an excess umbrella liability
policy for bodily injury and property damage in the amount of
$5,000,000, insuring Purchaser and Seller and Seller's Affiliates, as
additional insureds, against any injuries or damages to persons or
property that may result from or are related to (A) Purchaser's and/or
Purchaser's Representatives' entry upon the Premises, (B) any
Investigations or other activities conducted thereon, and (C) any and
all other activities undertaken by Purchaser and/or Purchaser's
Representatives, all of which insurance shall be on an "occurrence
form" and otherwise in such forms and with an insurance company
reasonably acceptable to Seller, and deliver a copy of such insurance
policy or certificate evidencing such insurance to Seller prior to the
first entry on the Premises;
(vii) not allow the Investigations or any and all other activities
undertaken by Purchaser or Purchaser's Representatives to result in any
liens, judgments or other encumbrances being filed or recorded against
the Premises, and Purchaser shall, at its sole cost and expense,
promptly discharge of record any such liens or encumbrances that are so
filed or recorded (including, without limitation, liens for services,
labor or materials furnished); and
(viii) indemnify Seller and Seller's Affiliates (as defined herein)
and hold Seller and Seller's Affiliates harmless from and against any
and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements), suffered or incurred by Seller or
any of Seller's Affiliates and arising out of or in connection with (A)
Purchaser's and/or Purchaser's Representatives' entry upon the
Premises, (B) any Investigations or other activities conducted thereon
by Purchaser or Purchaser's Representatives, and/or (C) any liens or
encumbrances filed or recorded against the Premises as a consequence of
the Investigations or any and all other activities undertaken by
Purchaser or Purchaser's Representatives.
The provisions of this Section 4 shall survive the termination of this Agreement
and the Closing.
5. Title
(a) (i) Seller shall convey and Purchaser shall accept good,
insurable and marketable title to the Premises subject to those matters
set forth on Exhibit "C" annexed hereto and made a part hereof
(collectively the "Permitted Encumbrances"). Purchaser shall promptly
order, at its sole cost and expense, a commitment for an owner's fee
title insurance policy or policies with respect to the Premises (the
"Title Commitment") from a reputable title insurance company licensed
to sell title insurance in the State of Florida (the "Title Company")
and shall request that the Title Company to deliver a copy of the Title
Commitment, together with true and complete copies of all instruments
giving rise to any defects or exceptions to title to the Premises, to
Seller's attorneys at the same time as the Purchaser receives the Title
Commitment. If the Title Commitment indicates the existence of any
liens, encumbrances or other defects or exceptions in or to title to
the Premises other than the Permitted Encumbrances (collectively, the
"Unacceptable Encumbrances") subject to which
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Purchaser is unwilling to accept title and Purchaser gives Seller
notice of the same within twenty (20) days after receipt of the
Title Commitment, Seller shall undertake to eliminate the same
subject to Section 5(b). Purchaser may raise such additional
Unacceptable Encumbrance which Purchaser does not notify Seller of
within such twenty (20)-day period only if (i) such Unacceptable
Encumbrances is first raised by the Title Company subsequent to the
date of the Title Commitment or Purchaser shall otherwise first
discover same or be advised of same subsequent to the date of the
Title Commitment, and (ii) Purchaser shall promptly notify Seller
of the same promptly after Purchaser first becomes aware of such
Unacceptable Encumbrance. Subject to Section 6(b), Seller, in its
sole discretion, may adjourn the Closing one or more times for up
to sixty (60) days in the aggregate in order to eliminate
Unacceptable Encumbrances, provided that such Unacceptable
Encumbrance is reasonably susceptible to being eliminated within
such sixty (60)-day period and Seller diligently proceeds to
eliminate such Unacceptable Encumbrances.
(ii) If Seller is unable (subject to Section 5(b)) to eliminate all
Unacceptable Encumbrances not waived by Purchaser, or to arrange for
title insurance reasonably acceptable to Purchaser, and to convey title
in accordance with the terms of this Agreement on or before the Closing
Date (whether or not the Closing is adjourned as provided in Section
5(a)(i)), Purchaser shall elect on the Closing Date, as its sole remedy
for such inability of Seller, either (A) to terminate this Agreement by
notice given to Seller pursuant to Section 18(a), in which event the
provisions of Section 18(a) shall apply and, in addition, Seller shall
reimburse Purchaser for all of its reasonable out-of-pocket costs and
expenses incurred in connection with obtaining surveys and title
reports, or (B) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the
Purchase Price. Seller's obligation to reimburse Purchaser's costs
pursuant to the immediately preceding sentence shall survive the
termination of this Agreement.
(b) Notwithstanding anything to the contrary set forth in this
Section 5 or elsewhere in this Agreement, Seller shall not be obligated to bring
any action or proceeding, to make any payments or otherwise to incur any expense
in order to eliminate Unacceptable Encumbrances not waived by Purchaser or to
arrange for title insurance insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same out of, the Premises; except
that Seller shall satisfy mortgages, real estate taxes, assessments, judgments
against Seller or other exceptions voluntarily created by Seller (collectively,
"Liens") secured by or affecting the Premises; and all other Unacceptable
Encumbrances which can be eliminated by payment of amounts not to exceed
$500,000.00 in the aggregate. Without limiting the generality of the preceding
provisions of this Section 5(b), for the purposes of this Agreement (including,
without limitation, Sections 5(a) and 18(a)), Seller's failure or refusal to
bring any action or proceeding, to make any payments or to otherwise incur any
expense (except for Seller's obligation to eliminate Unacceptable Encumbrances
which can be satisfied by payment of liquidated amounts not to exceed
$500,000.00 in the aggregate as aforesaid) in order to eliminate Unacceptable
Encumbrances not waived by Purchaser or to arrange for such title insurance
shall be deemed an inability of Seller to eliminate such Unacceptable
Encumbrances or to arrange for such title insurance and shall not be a default
by Seller hereunder (willful or otherwise).
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(c) If on the Closing Date there may be any Liens or other
encumbrances which Seller must pay or discharge in order to convey to Purchaser
such title as is herein provided to be conveyed, Seller may use any portion of
the Purchase Price to satisfy the same, provided:
(i) Seller shall deliver to Purchaser or the Title Company, at
the Closing, instruments in recordable form and sufficient to
satisfy such Liens or other encumbrances of record together with
the cost of recording or filing said instruments; or
(ii) Seller, having made arrangements with the Title Company,
shall deposit with said company sufficient monies acceptable to
said company to insure the obtaining and the recording of such
satisfactions, if such Unacceptable Encumbrances can be removed by
the payment of a liquidated amount of money.
The existence of any such Liens or other encumbrances shall not be
deemed objections to title if Seller shall comply with the foregoing
requirements.
(d) Purchaser agrees to provide, by a wire transfer at Closing, the
outstanding amount of the Purchase Price payable pursuant to Section 2(c), in
order to facilitate the satisfaction or release of any Liens or other
encumbrances. Similarly, at Seller's election, unpaid liens for taxes, water and
sewer charges and assessments, which are the obligation of Seller to satisfy and
discharge, shall not be objections to title, but the amount thereof, plus
interest and penalties thereon, if any, computed to the third (3rd) business day
after the Closing Date, shall be deducted from the Purchase Price payable
pursuant to Section 2(c) and shall be allowed to Purchaser, subject to the
provisions for apportionment of taxes, water and sewer charges and assessments
contained herein.
(e) Any franchise or corporate tax open, levied or imposed against
Seller or other owners in the chain of title that may be a Lien on the Closing
Date, shall not be an objection to title if the Title Company omits same from
the title policy issued pursuant to the Title Commitment or excepts same but
insures Purchaser against collection thereof out of the Premises. If Lender
requires an updated title policy, then Seller shall cause, at its sole cost and
expense, the franchise or corporate tax open, levied or imposed against Seller
or other owners in the chain of title that may be a Lien on the Closing Date to
be omitted from the title policy issued to Lender.
(f) If a search of title discloses judgments, bankruptcies or other
returns against other persons or entities having names the same as or similar to
that of Seller, Seller will deliver to Purchaser and the Title Company an
affidavit stating that such judgments, bankruptcies or other returns are not
against Seller, whereupon, provided the Title Company omits such returns as
exceptions to title or provides affirmative coverage with respect thereto, such
returns shall not be deemed an objection to title.
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6. Closing
(a) The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the "Closing") shall take place at
Seller's offices or the office of the Title Company on the date that is the
later of (i) thirty (30) days after the end of the Due Diligence Period; or (ii)
ten (10) days after Lender's approval of the sale of the Premises to Purchaser.
(the "Closing Date"). Purchaser shall be entitled to one adjournment of up to
forty-five (45) days, but time shall be of the essence against Purchaser on such
adjourned date. In the event that Seller exercises its right under this
Agreement to qualify the transaction contemplated herein as a like-kind exchange
under Section 1031 of the Internal Revenue Code, subject to Section 6(b), Seller
may extend Closing for an additional period of time not to exceed sixty (60)
days.
(b) In each instance in which Seller shall be entitled to extend or
adjourn the Closing Date pursuant to this Agreement, Seller's extension or
adjournment shall be concurrent with, rather than in addition to, any other
extension or adjournment to which Seller may be entitled so that the maximum
extension or adjournment by Seller of the Closing Date shall not exceed sixty
(60) days in the aggregate. Time shall be of the essence against Seller on such
adjourned date.
7. Representations and Warranties
(a) (i) Seller represents and warrants to Purchaser as follows:
(A) Acadia is a duly formed and validly existing limited
partnership organized under the laws of the State of Delaware and
Borrower is a duly formed and validly existing limited partnership
organized under the laws of the State of Florida and is qualified
under the laws of the State of Florida to conduct business therein.
Borrower is in good standing under the laws of the State of Florida.
(B) Subject to obtaining the consent of the Lender, Seller
has the full legal right, power and authority to execute and deliver
this Agreement and all documents now or hereafter to be executed by
Seller pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated hereby, and
to perform its obligations hereunder and under Seller's Documents.
No party has any option to purchase or right of first refusal to
acquire the Premises.
(C) This Agreement and Seller's Documents do not and will
not contravene any provision of the partnership agreement of Seller,
any judgment, order, decree, writ or injunction issued against
Seller, or any provision of any laws or governmental ordinances,
rules, regulations, orders or requirements (collectively, "Laws")
applicable to Seller. Subject to obtaining the consent of the
Lender, the consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or event of
default by Seller under any agreement to which Seller or any of its
assets are subject or bound and will not result in a violation of
any Laws applicable to Seller.
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(D) There are no leases, licenses or other occupancy
agreements, or amendments or modifications thereto, affecting any
portion of the Premises on the date hereof, except for those listed
in Exhibit "D" annexed hereto and made a part hereof (collectively,
the "Leases"). Seller shall deliver to Purchaser true and complete
copies of all of the Leases.
(E) There are no pending actions, suits, proceedings or
investigations to which Seller is a party before any court or other
governmental authority with respect to the Premises except as set
forth on Exhibit "E" annexed hereto and made a part hereof, and to
the best of Seller's knowledge, no such actions, suits, proceedings,
or investigations have been threatened.
(F) Except as set forth on Exhibit "F" or otherwise set
forth in this Agreement, (i) no tenant, licensee or occupant under
any of the Leases is entitled to any free rent, abatement,
concessions, construction allowances, construction to be performed
by the landlord, rebates or refunds, (ii) no tenant, licensee or
occupant under any of the Leases has prepaid any rents or other
charges for more than one (1) month or is in arrears with respect to
any rents or other charges, (iii) Seller has not delivered a notice
of default to any tenant, licensee or other occupant under any of
the Leases during the twelve (12) month period immediately preceding
the date of this Agreement, and (iv) Seller has not received a
notice from any tenant stating that Seller is in default under any
of the Leases. Seller agrees that all such prepayments and security
deposits, if any, shall be for the benefit of Purchaser. No tenant
has any option, right of first refusal or occupancy claim against
any Premises or any part thereof except to occupy the Premises as a
tenant.
(G) All brokerage commissions, leasing commissions and other
compensations which have been contracted prior to or at the Closing
and which are due or payable at any time to any person, firm,
corporation or other entity with respect to or on account of the
Premises with respect to the present tenants listed on Exhibit "D"
in connection with this sale, (including but not limited to any of
the Leases or any extensions or renewals thereof) shall be payable
at the sole cost and expense of Seller prior to Closing, and Seller
hereby covenants and agrees to indemnify and hold Purchaser harmless
from and against any and all such commissions and compensation and
all reasonable expenses and costs (including but not limited to
Purchaser's court costs and reasonable attorneys fees) connected
with the defense and/or payment of any and all such claims and
suits. Seller's obligation to indemnify Purchaser pursuant to this
Paragraph (G) shall survive Closing for a period of nine (9) months.
(H) It has no knowledge of any request by any insurance
carrier or Board of Fire Underwriters for any alterations to the
Premises.
(I) To the best of Seller's knowledge, there is no pending
condemnation, assessment or similar proceeding affecting the
Premises or any part or portion thereof, except as disclosed in the
Title Commitment.
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(J) There is not any action, suit or proceeding pending or
to the best of Seller's knowledge, threatened (in any court or
before or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental
instrumentality) against or in any way affecting: (1) the Premises
or any part or portion thereof; or (2) any of the Leases, and
relating to or arising out of the ownership, maintenance,
management, leasing, operation or use of the Premises, or (3)
Seller's ability to perform its obligations under this Agreement.
(K) Seller is not a "foreign person" as such term is defined
in Section 1445 of the Internal Revenue Code of 1986, as amended
(the "Code"), nor will the sale transaction herein contemplated be
subject to Section 897 of the Code or the withholding requirements
of Section 1445 of the Code.
(L) There are no labor contracts, union contracts,
collective bargaining agreements, or any other employee agreements
affecting any portion of the Premises.
(M) Except as set forth on Exhibit "J", there are no
management, service, supply or maintenance agreements with respect
to the Premises or any part or portion thereof which cannot be
cancelled (without penalty) within thirty (30) days of any notice to
cancel.
(N) There are not any persons employed in connection with
the management, operation or maintenance of the Premises that cannot
be terminated as of the Closing Date without any liability to
Purchaser.
(O) No zoning, building or similar law, ordinance, order or
regulation is or will be violated by the continued maintenance,
operation or use of any building or other improvement presently
comprising the Premises, and there are not and will not be any
violations of any federal, state or municipal laws, ordinances,
orders, regulations or requirements affecting any part or portion of
the Premises as now maintained, operated and used, and no notice of
any such violation has been issued by any governmental authority
having jurisdiction.
(P) Seller shall, between the date hereof and the Closing,
continue to operate the Premises in the ordinary course,
substantially in accordance with the practices and procedures
previously followed, and in compliance with Section 9 of this
Agreement.
Copies of the Leases in Seller's possession and certain other
Premises Information (as defined in Section 22(e)) have been or will
be delivered or otherwise made available to Purchaser during the Due
Diligence Period. Seller shall deliver the original Leases and all
amendments, if available, to Purchaser on the Closing Date. If the
original Leases are unavailable, Seller shall deliver certified
copies of the Leases on the Closing Date.
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(ii) If prior to the Closing, (A) Purchaser shall become aware
(whether through its own efforts, by notice from Seller or otherwise)
that any of the representations or warranties made herein by Seller are
untrue, inaccurate or incorrect and shall give Seller notice thereof at
or prior to the Closing, or (B) Seller shall notify Purchaser that a
representation or warranty made herein by Seller is untrue, inaccurate
or incorrect, then, subject to Section 6(b), Seller may, in its sole
discretion, elect by notice to Purchaser to adjourn the Closing one or
more times for up to sixty (60) days in the aggregate in order to cure
or correct such untrue, inaccurate or incorrect representation or
warranty. If any such representation or warranty is either (1)
immaterial or (2) material but not materially untrue, inaccurate or
incorrect, and is not cured or corrected by Seller on or before the
Closing Date (whether or not the Closing is adjourned as provided
above), Purchaser shall nevertheless be deemed to, and shall, waive
such misrepresentation or breach of warranty and shall consummate the
transactions contemplated hereby without any reduction of or credit
against the Purchase Price. If any such representation or warranty is
both (1) material and (2) materially untrue, inaccurate or incorrect,
and is not cured or corrected by Seller on or before the Closing Date
(whether or not the Closing is adjourned as provided above), then
Purchaser, as its sole remedy for any and all such materially untrue,
inaccurate or incorrect material representations or warranties, shall
elect either (x) to waive such misrepresentations or breaches of
warranties and consummate the transactions contemplated hereby without
any reduction of or credit against the Purchase Price, or (y) to
terminate this Agreement by notice given to Seller on the Closing Date,
in which event, this Agreement shall be terminated and neither party
shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations, and except that Purchaser shall
be entitled to a return of the Fund.
(iii) The representations and warranties of Seller set forth in
Section 7(a)(i) and elsewhere in this Agreement shall be true, accurate
and correct in all material respects upon the execution of this
Agreement and shall be deemed to be restated on and as of the Closing
Date (except with respect to the representations contained in
Paragraphs D, E, F and I of Section 7(a)(i) (the "To Be Updated
Representations")). At Closing, Seller shall restate the To Be Updated
Representations as set forth in Section 12(a)(i). As of the Closing,
the representations and warranties (whether express or implied) of
Seller set forth in, or required to be made by Seller, in Section
7(a)(i) and elsewhere in this Agreement (including, without limitation,
the Updated Representations (as defined in Section 12(a)(i)(B))),
and/or the Seller's Documents (including, without limitation, the Deed
and the A & A Agreements as defined in Section 13) shall remain
operative and shall survive the Closing and the execution and delivery
of the Deed for a period of nine (9) months following the Closing, and
no action or claim based thereon shall be commenced after such period.
(b) (i) Purchaser represents and warrants to Seller as follows:
(A) Purchaser is a duly formed and validly existing limited
partnership, organized under the laws of the State of Delaware, and
is qualified under the laws of the State of Delaware to conduct
business therein on the Closing Date.
15
(B) Purchaser has the full legal right, power, and authority
to execute and deliver this Agreement and all documents now or
hereafter to be executed by it pursuant to this Agreement
(collectively, the "Purchaser's Documents"), to consummate the
transactions contemplated hereby, and to perform its obligations
hereunder and under Purchaser's Documents.
(C) This Agreement and Purchaser's Documents do not and will
not contravene any provision of the limited partnership agreement of
Purchaser, any judgment, order, decree, writ or injunction issued
against Purchaser, or any provision of any laws applicable to
Purchaser. The consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or event of
default by Purchaser under any agreement to which Purchaser or any
of its assets are subject or bound and will not result in a
violation of any laws applicable to Purchaser.
(D) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or
other governmental authority which may have an adverse impact on the
transactions contemplated hereby.
(ii) The representations and warranties of Purchaser set forth in
Section 7(b)(i) and elsewhere in this Agreement shall be true, accurate
and correct in all material respects upon the execution of this
Agreement, shall be deemed to be repeated on and as of the Closing Date
(except as they relate only to an earlier date) and shall survive the
Closing for nine (9) months.
8. Operation of the Premises prior to the Closing Date
Between the date hereof and the Closing Date, Seller shall continue to
operate and maintain the Premises in accordance with past practices. In
connection therewith:
(a) (i) Except as hereinafter provided in this Section 8(a), prior
to the expiration of the Due Diligence Period, Seller may modify, extend, renew,
cancel or permit the expiration of any Lease or enter into any proposed Lease of
all or any portion of the Premises without Purchaser's consent, but Seller will
promptly, but in any event prior to the expiration of the Due Diligence Period,
notify Purchaser of any such event. After the expiration of the Due Diligence
Period, Seller shall not modify, extend, renew or cancel (subject to Section
8(b)) any Lease or enter into any proposed Lease of all or any portion of the
Premises without Purchaser's prior consent in each instance, which consent shall
not be unreasonably withheld and shall be given or denied, with the reasons for
any such denial, within the applicable period specified in Section 8(a)(iv).
(ii) If, after the date of this Agreement, Seller enters into
any Leases with a tenant not already occupying space in the Premises or
any modification of an existing Lease pursuant to which the tenant
shall increase the space occupied thereunder, subject to the last
sentence of this Paragraph (each, a "New Lease"), Seller shall keep
accurate records of all expenses (collectively, "New Lease Expenses")
incurred in connection with each New Lease, including, without
limitation, the following: (A) third party out-of-pocket brokerage
commissions and fees relating to such leasing transaction, (B) expenses
incurred for repairs, improvements, equipment, painting, decorating,
partitioning and other items to satisfy the tenant's requirements with
16
regard to such leasing transaction, (C) the third party out-of-pocket
costs of removal and/or abatement of asbestos or other hazardous or
toxic substances located in the demised space, (D) reimbursements to
the tenant for the cost of any of the items described in the preceding
clauses (B) and (C), (E) third party out-of-pocket legal fees for
services in connection with the preparation of documents and other
services rendered in connection with the effectuation of the leasing
transaction, (F) rent concessions relating to the demised space
provided the tenant has the right to take possession of such demised
space during the period of such rent concessions, and (G) third party
out-of-pocket expenses incurred for the purpose of satisfying or
terminating the obligations of a tenant under a New Lease to the
landlord under another lease (whether or not such other lease covers
space in the Premises). For purposes of this Agreement, the
transactions contemplated under Section 8(a)(iv) shall not be treated
as "New Leases".
(iii) The New Lease Expenses for each New Lease allocable to
and payable by Seller shall be determined by multiplying the amount of
such New Lease Expenses by a fraction, the numerator of which shall be
the number of days contained in that portion, if any, of the term of
such New Lease commencing on the date on which the tenant thereunder
shall have commenced to pay fixed rent ("Rent Commencement Date") and
expiring on the date immediately preceding the Closing Date, and the
denominator of which shall be the total number of days contained in the
period commencing on the Rent Commencement Date and expiring on the
date of the scheduled expiration of the term of such New Lease, and the
remaining balance of the New Lease Expenses for each New Lease shall be
allocable to and payable by Purchaser. At the Closing, upon delivery to
Purchaser of documentation supporting same, Purchaser shall reimburse
Seller for all reasonable New Lease Expenses theretofore paid by
Seller, if any, in excess of the portion of the New Lease Expenses
allocated to Seller pursuant to the provisions of the preceding
sentence, provided that the New Lease was permitted pursuant to Section
8(a)(i). The provisions of this Section 8(a)(iii) shall survive the
Closing for a period of nine (9) months.
(iv) With respect to any proposed action by Seller to be
submitted to Purchaser for its consent pursuant to Section 8(a)(i),
Purchaser shall consent or deny its consent, with the reasons for any
such denial, within ten (10) business days of the date that Seller
sends notice of the proposed action or else Purchaser's consent shall
be deemed to have been granted.
(v) (A) Existing Business and Professional Regulation Lease.
Supplementing Section 8(a)(ii) and (iii) above, Purchaser has been
advised by Seller that Exhibit "D" reflects a lease to the Florida
Department of Business and Professional Regulation ("BPR") for 123,387
square feet but that BPR only currently occupies approximately 93,000
square feet of this space. The remainder is occupied by the Florida
Department of Health ("DOH") with BPR's permission and with rent paid
by BPR. DOH has notified Seller that it will vacate these premises and
upon doing so the remaining 30,000 square feet of this space for BPR
will become available for Seller to renovate in accordance with the BPR
lease, after which the rent shall increase pursuant to the BPR lease.
Seller will perform all work necessary to renovate this space at
Seller's sole cost and expense in a first class, workmanlike, prompt
and diligent manner in accordance with the BPR lease and in compliance
with all Laws. If not completed by Closing, Seller will continue to
complete such work at Seller's sole cost and expense. Seller shall
indemnify and hold Purchaser harmless from and against any and all
losses, costs or expenses of Purchaser incurred as a result of Seller's
performance of or failure to perform this work, including without
limitation, any claim by BPR.
17
(B) New Department of Education Lease. It is anticipated
that Seller will consent to an assignment of a portion of the
existing DOH lease shown on Exhibit "D" as DOH 64 ("Assignment") to
the Florida Department of Education ("DOE") for approximately
46,784 square feet of the space currently occupied by DOH and enter
into a new lease with DOE substantially in the same form of the
existing DOH lease for an additional 5,000 square feet "(DOE New
Lease") at a gross rent of not less than $13.98 per square foot and
the landlord thereunder performing renovations costing not more
than $701,760 (collectively the Assignment and the DOE New Lease
are hereinafter referred to as the "DOE Lease"). Upon execution and
delivery of the DOE Lease, the Purchase Price shall be increased by
$500,000. If, at Closing, only the Assignment has occurred, then
this $500,000 shall be proportionately adjusted based on the square
footage and the balance paid to Seller post-closing at such time as
the New Lease is executed and delivered, but in no event shall the
balance be paid to Seller if the New Lease is not executed and
delivered on or before December 1, 2000. Should DOH vacate these
premises prior to Closing and the Due Diligence Period shall have
expired, Seller shall notify Purchaser when Seller reasonably
anticipates that the renovation work for the DOE space can
reasonably be commenced. If it is not reasonably anticipated that
the Closing will occur within fifteen (15) days of such notice,
subject to the immediately following sentence, Seller shall have
the option, but not the obligation, to commence such work, but if
Seller does commence such work it shall be obligated to complete
such work notwithstanding an intervening Closing. Notwithstanding
the immediately preceding sentence, Seller shall be required to
commence such work at a date reasonably in advance of the date that
the work must be completed pursuant to the DOE Lease to enable such
work to be completed by such date. Any work performed by Seller
pursuant to this Paragraph shall be performed in a first class,
workmanlike, prompt and diligent manner in accordance with the DOE
Lease and in compliance with all Laws. At Closing, Purchaser shall
reimburse Seller for all reasonable, third-party costs incurred by
Seller to date in performing such work and after Closing shall fund
any remaining costs to complete such work.
(C) New Business and Professional Regulation Lease. Seller
has recently consented to an assignment of a portion of the DOH
Lease to the Florida Department of Business and Professional
Regulation for approximately 24,000 square feet ("New BPR
Premises") which is currently occupied by the Division of Children
and Families ("DCF"). In the event DCF vacates the premises prior
to Closing, Seller will commence the tenant improvement work on the
New BPR Premises and, at Closing, Purchaser will reimburse Seller
for all reasonable, third-party costs incurred in performing the
tenant work for the New BPR Premises and thereafter fund the
balance necessary for Seller to complete such work up to a maximum
of $680,000. Any work performed by Seller pursuant to this
Paragraph shall be performed in a first class, workmanlike, prompt
and diligent manner in accordance with its obligations to BPR and
in compliance with all Laws.
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(b) Notwithstanding anything to the contrary contained in this
Agreement, Seller reserves the right, but is not obligated, to institute summary
proceedings against any tenant or terminate any Lease as a result of a default
by the tenant thereunder prior to the Closing Date, but after the expiration of
the Due Diligence Period, Seller will not take any such action without first
obtaining Purchaser's consent which shall not be unreasonably withheld or
delayed. During the Due Diligence Period, Seller shall notify Purchaser prior to
commencing any such action and shall keep Purchaser current on all information
with respect to any defaults by any tenants, subject to Section 8. Seller makes
no representations and assumes no responsibility with respect to the continued
occupancy of the Premises or any part thereof by any tenant.
(c) Except as hereinafter provided in this Section 8(c), Seller may
cancel, modify, extend, renew or permit the expiration of Contracts or enter
into any new Contract without Purchaser's prior consent, provided that Seller
shall advise Purchaser thereof promptly and in any event prior to the expiration
of the Due Diligence Period After the expiration of the Due Diligence Period,
Seller shall not modify, extend, renew or cancel (except as a result of a
default by the other party thereunder) any Contracts or Labor Contracts, or
enter into any new Contract without Purchaser's prior consent in each instance
where the term of the Contract extends beyond Closing, which consent shall not
be unreasonably withheld or delayed, and if withheld, Purchaser shall promptly
give Seller a notice stating the reasons therefor; provided, however, that
Purchaser's consent shall not be unreasonably withheld to the aforestated
actions if such Contract may be terminated at any time on not more than thirty
(30)-days prior notice by Seller, or its successor, without the payment of a
penalty.
(d) Seller will keep in force and effect with respect to the
Premises the insurance policies currently carried by Seller and listed on
Exhibit "P" annexed hereto and made a part hereof or policies providing similar
coverage.
(e) Seller will not commence any tax reduction proceeding without
Purchaser's consent which consent shall not be unreasonably withheld or delayed.
(f) Seller shall timely pay all taxes and assessments with respect
to the Premises.
(g) Seller shall perform and not otherwise be in breach of its
obligations under the Leases and any New Leases.
(h) Seller shall neither cause nor permit the occurrence of an
Environmental Condition at or on the Premises. For purposes of this Agreement,
"Environmental Condition" shall mean the generation, treatment, recycling,
transportation or disposal of any solid wastes, pollutants or other hazardous
substances (as such terms are defined under any federal, state or local
environmental protection laws, regulations, orders or ordinances (collectively,
"Environmental Laws") in violation of any Environmental Laws or in a manner
resulting in liability under any Environmental Laws.
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9. Apportionments
(a) The following shall be apportioned between Seller and Purchaser
at the Closing as of midnight of the day preceding the Closing Date:
(i) prepaid rents and Additional Rents (as defined in Section
9(c)(ii) below) and other amounts payable by tenants, if, as and when
received;
(ii) real estate taxes, water charges, sewer rents and vault
charges, if any, on the basis of the fiscal years, respectively, for
which same have been assessed;
(iii) value of fuel stored on the Premises, at Seller's cost,
including any taxes, on the basis of a statement from Seller's
supplier;
(iv) charges and payments under Contracts assigned to Purchaser
at Closing or permitted renewals or replacements
thereof;
(v) utilities, including, without limitation, steam,
electricity and gas to the extent that such utilities are not paid
directly by tenants, on the basis of the most recently issued bills
therefor, subject to adjustment after the Closing when the next bills
are available, or if current meter readings are available, on the basis
of such readings. Seller shall attempt to obtain the readings as close
to the Closing as reasonably practicable;
(vi) Seller's share, if any, of all revenues from the operation
of the telephone booths located on the Premises if, as and when
received;
(vii) any interest under the Note relating to the month in
which Closing occurs;
(viii) any interest on the Collection Account payable to the
Borrower under the Loan Agreement;
(ix) premium payments made on any insurance policy that insures
against loss or damage as the result of an environmental condition on
the Premises, if such policy is assigned to Purchaser at Closing
pursuant to Purchaser's request.
(b) If the Closing shall occur before a new real estate or personal
property tax rate is fixed, the apportionment of taxes at the Closing shall be
upon the basis of the old tax rate for the preceding fiscal year applied to the
latest assessed valuation. Promptly after the new tax rate is fixed, the
apportionment of taxes shall be recomputed and any discrepancy resulting from
such recomputation and any errors or omissions in computing apportionments at
Closing shall be promptly corrected and the proper party reimbursed, which
obligations shall survive the Closing in accordance with Section 9(f).
20
(c) (i) If on the Closing Date any tenant is in arrears in the
payment of rent or has not paid the rent payable by it for the month in
which the Closing occurs (whether or not it is in arrears for such
month on the Closing Date), any rents received by Purchaser or Seller
from such tenant after the Closing shall be applied to amounts due and
payable by such tenant during the following periods in the following
order of priority: (A) first, to payment of rent for the month in which
the Closing occurred, (B) second, to payment of rent for the period, if
any, after the month in which the Closing occurs where such rent is due
and payable; (C) third, after all rent for all current periods have
been paid in full, then in payment of rent for the period prior to the
month in which the Closing occurs. If rents or any portion thereof
received by Seller or Purchaser after the Closing are due and payable
to the other party by reason of this allocation, the appropriate sum,
less a proportionate share of any reasonable attorneys fees and costs
and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. For purposes of this Section
9(c)(i), rent shall include any regular monthly payment due from a
tenant including, but not limited to, real estate taxes, common area
maintenance charges or insurance reimbursements, but specifically
excluding percentage rent payments.
(ii) If any tenants are required to pay percentage rent, real
estate taxes, common area charges, insurance charges or other charges
of a similar nature ("Additional Rents") and any Additional Rents are
collected by Purchaser from a tenant after the Closing Date and
specifically identified by such tenant as being a payment applicable to
a time period occurring prior to Closing, then Purchaser shall promptly
pay to Seller out of such sums received from such tenant such
identified amount that is due and payable by such tenant with respect
to any period prior to the Closing Date (whether or not such Additional
Rents first became due and payable on or after the Closing Date), less
a proportionate share of any reasonable attorneys fees and costs and
expenses of collection thereof.
(iii) The provisions of this Section 9(c) shall survive the
Closing for nine (9) months.
(d) After the Closing, Seller shall continue to have the right, in
its own name, to demand payment of and to collect rent and Additional Rent
arrearages owed to Seller by any tenant, which right shall include, without
limitation, the right to continue or commence non-possessory legal actions or
proceedings against any tenant with respect to any period prior to Closing, and
delivery of the Lease Assignment (as hereinafter defined) shall not constitute a
waiver by Seller of such right. Purchaser agrees to reasonably cooperate with
Seller, at no cost to Purchaser, in connection with Seller's efforts to collect
such rents, including without limitation, the delivery to Seller of any relevant
books and records in Purchaser's possession (including any rent or Additional
Rent statements, receipted bills and copies of tenant checks used in payment of
such rent or Additional Rent), provided that such cooperation would not impair
Purchaser's interests with respect to any tenants or Leases.. In no event shall
Purchaser be required to commence any summary proceeding to enforce such rights
of Seller. The provisions of this Section 9(d) shall survive the Closing for
nine (9) months.
21
(e) If there is a water meter on the Premises which is the
obligation of Seller, Seller shall furnish a reading to a date not more than
twenty (20) days prior to the Closing Date, and the unfixed water charges and
sewer rent, if any, based thereon for the intervening time shall be apportioned
on the basis of such last reading. As soon as possible after Closing, the
parties will have an actual meter reading and adjust if necessary.
(f) If any of the items subject to apportionment under the
foregoing provisions of this Section 9 cannot be apportioned at the Closing
because of the unavailability of the information necessary to compute such
apportionment, or if any errors or omissions in computing apportionments at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period of nine (9) months after the Closing Date as
hereinafter provided. Neither party hereto shall have the right to require a
recomputation of a Closing apportionment or a correction of an error or omission
in a Closing apportionment unless within the aforestated nine (9) month period
one of the parties hereto (i) has obtained the previously unavailable
information or has discovered the error or omission, and (ii) has given notice
thereof to the other party together with a copy of its good faith recomputation
of the apportionment and copies of all substantiating information used in such
recomputation. Unless due to fraud, the failure of a party to obtain any
previously unavailable information or discover an error or omission with respect
to an item subject to apportionment hereunder and to give notice thereof as
provided above within nine (9) months after the Closing Date shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date. Notwithstanding any
of the foregoing provisions of this Section 9(f) to the contrary, Purchaser and
Seller agree that the nine (9) month limitation set forth in this Section 9(f)
shall not apply to the parties' obligations under Section 9(b) and that such
obligations shall survive the Closing forever.
(g) If, on the Closing Date, the Premises or any part thereof shall
be or shall have been affected by an assessment or assessments which are or may
become payable in annual installments, of which the first installment is then a
charge or lien, or has been paid, then for the purposes of this Agreement all
the unpaid installments of any such assessment, including those which are to
become due and payable after Closing, shall be deemed to be due and payable and
to be liens upon the Property and shall be paid and discharged by Seller upon
the Closing.
(h) Purchaser shall be responsible for paying all expenses and
closing costs incurred in connection with the assumption of the Mortgage by
Purchaser including, without limitation and expenses and fees of the Lender and
Seller in connection therewith.
10. Section 1031 Exchange
Purchaser hereby acknowledges that Seller may intend to qualify
the transaction contemplated herein as a like-kind exchange under Section 1031
of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that
Seller exercises its right under this Agreement to qualify the transaction
contemplated herein as a like-kind exchange under Section 1031, Purchaser agrees
to cooperate in the exchange, at Seller's sole cost and expense (whether before
or after Closing), and execute any additional agreements which Seller reasonably
determines to be necessary for the transaction represented by this Agreement to
qualify as part of a like-kind exchange under Code Section 1031 either prior to
or after Closing provided that (i) Purchaser incurs no liability, cost or
expense; and (ii) Purchaser shall not be required to take title to any property
other than the property which is the subject of this Agreement. Furthermore,
22
Purchaser expressly acknowledges and agrees that Seller's rights under this
Agreement are assignable by Seller to permit Seller to qualify this transaction
as part of a like-kind exchange under the Code provided, however, that any such
assignment shall not release Seller from its obligations hereunder. Seller
hereby agrees to indemnify and hold Purchaser harmless against any cost, loss or
expense incurred by Purchaser as a result of Seller seeking to qualify the
transaction contemplated herein as a like-kind exchange under Code Section 1031.
Seller's obligations pursuant to the immediately preceding sentence shall
survive Closing.
11. Transfer Taxes
All documentary stamps and recording taxes ("Seller's Transfer Tax
Payments") that are imposed pursuant to the laws of the State of Florida or any
other governmental authority in connection with the Deed shall be paid by
Seller. All documentary stamps and recording charges ("Purchaser's Transfer Tax
Payments") that are imposed as a result of the assumption of the Mortgage
contemplated herein shall be paid by Purchaser. A Florida Documentary Stamp Tax
Return (the "Transfer Tax Return") required under the laws of the State of
Florida shall be duly executed by both Seller and Purchaser. Purchaser shall not
be entitled to receive a credit against or abatement of the Purchase Price
payable to Seller at the Closing as a result of Purchaser's Transfer Tax
Payments. Notwithstanding the foregoing, if, under applicable Laws, Seller is
required to actually make Purchaser's Transfer Tax Payment to the taxing
authority, then, at the Closing, Seller shall make such Purchaser's Transfer Tax
Payment and the portion of the Purchase Price payable by Purchaser pursuant to
Section 2(c) shall be increased by the amount thereof.
12. Conditions Precedent to Closing
(a) Purchaser's obligation under this Agreement to purchase the
Premises is subject to the fulfillment of each of the following conditions:
(i) (A) All of the representations and warranties of Seller
contained in this Agreement, other than the To Be Updated
Representations, shall be true, accurate and correct as if restated on
and as of the Closing Date.
(B) Seller shall update the To Be Updated Representations
as of the Closing Date to reflect the then present state of facts
underlying the To Be Updated Representations (as updated, the "Updated
Representations"). A difference between the To Be Updated
Representations and the Updated Representations shall not in and of
itself constitute a breach of a representation by Seller.
Notwithstanding the immediately preceding sentence, it shall be a
condition of Purchaser's obligation under this Agreement to purchase
the Premises that the Updated Representations do not differ from the To
Be Updated Representations, except that the facts underlying the
representations contained in Paragraphs D and F of Section 7(a)(i) may
be updated as of the Closing Date, respectively, to reflect (I) any New
Leases or Lease amendments or modifications permitted pursuant to
Section 9, and (II) any defaults by any tenants under the Leases
(subject to the provisions of Section 7(a)(ii));
23
(ii) Seller shall be ready, willing and able to deliver title
to the Premises in accordance with the terms and conditions of this
Agreement; and
(iii) Seller shall have delivered all the documents and other
items required pursuant to Section 3, and shall have performed all
other covenants, undertakings and obligations, and complied with all
conditions required by this Agreement to be performed or complied with
by the Seller at or prior to the Closing.
(iv) The Title Company is willing to insure, without
conditions, fee simple title subject only to the Permitted Exceptions
at filed or promulgated rates without additional premiums or
endorsements.
(v) In accordance with Section 3(f), either (A) the Mezzanine
Lender or Seller shall be ready, willing and able to provide Mezzanine
Financing to Purchaser, or (B) Seller shall have disapproved the terms
of the Commitment.
13. Documents to be Delivered by Seller at Closing
At the Closing, Seller shall execute, acknowledge and/or deliver, as
applicable, the following to Purchaser or the Title Company:
(a) A deed (the "Deed") conveying title to the Premises in the form
of Exhibit "G" annexed hereto and made a part hereof and an assignment of the
Ground Lease in a form reasonably acceptable to Purchaser.
(b) The Assignment and Assumption of Leases, Security Deposits,
Security Deposit Account and Collection Account in the form of Exhibit "H"
annexed hereto and made a part hereof assigning all of Seller's right, title and
interest, if any, in and to the Leases, all guarantees thereof and the security
deposits thereunder in Seller's possession, if any (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and Licenses in the
form of Exhibit "I" annexed hereto and made a part hereof (the "Contract and
License Assignment") assigning without warranty or representation all of
Seller's right, title and interest, if any, in and to (i) all of the assignable
licenses, permits, certificates, approvals, authorizations and variances issued
for or with respect to the Premises by any governmental authority (collectively,
the "Licenses"), and (ii) all assignable service contracts relating to the
operation of the Premises as set forth in Exhibit "J" which Purchaser elects to
have assigned to it (collectively, the "Contracts).
(d) The Assignment and Assumption of Intangible Property in the
form of Exhibit "K" annexed hereto and made part hereof assigning without
warranty or representation all of Seller's right, title and interest, if any, in
and to all intangible property owned by Seller with respect to the operation of
the Premises listed on Exhibit "K" annexed hereto and made a part hereof,
including, without limitation, the trade name Northwood Center (the "Intangible
Property Assignment") (the Lease Assignment, the Contract and License Assignment
and the Intangible Property Assignment are herein referred to collectively as
the "A & A Agreements").
24
(e) To the extent in Seller's possession, executed counterparts of
all Leases and New Leases and any amendments, guarantees and other documents
relating thereto, or, if unavailable, certified copies thereof, together with a
schedule of all tenant security deposits thereunder and the accrued interest on
such security deposits payable to tenants which are in the Security Sub-Account
which shall be assigned to Purchaser.
(f) Notices to the tenants of the Premises in the form of Exhibit
"L" annexed hereto and made a part hereof advising the tenants of the sale of
the Premises to Purchaser and directing that rents and other payments thereafter
be sent to Purchaser or as Purchaser may direct.
(g) To the extent in Seller's possession and not already located at
the Premises, keys to all entrance doors to, and equipment and utility rooms
located in, the Premises.
(h) The Transfer Tax Return, and Seller's Transfer Tax Payment.
(i) A "FIRPTA" affidavit sworn to by Seller in the form of Exhibit
"M" annexed hereto and made a part hereof. Purchaser acknowledges and agrees
that upon Seller's delivery of such affidavit, Purchaser shall not withhold any
portion of the Purchase Price pursuant to Section 1445 of the Internal Revenue
Code of 1986, as amended, and the regulations promulgated thereunder.
(j) An Estoppel Certificate from each tenant listed on Exhibit "N"
("Major Tenants") and 50% of the balance of the tenants (collectively, the
"Minimum Estoppel Requirements"). The Estoppel Certificates shall be in the form
annexed hereto as Exhibit "O" and made a part hereof. In the event that the
Minimum Estoppel Requirements shall not be satisfied at least five (5) business
days prior to the Closing Date, Purchaser shall be entitled to elect to
terminate this Agreement, whereby the Agreement would be null and void, and the
Fund shall be returned to Purchaser together with any interest, whereupon the
parties hereto shall have no further rights, duties, obligations or liabilities
to one another hereunder except as specifically provided herein to the contrary.
In the event that the Minimum Estoppel Requirements shall not have been
satisfied at least five (5) business days prior to the Closing Date and
Purchaser shall not have terminated this Agreement, Seller shall execute and
deliver to Purchaser an estoppel certificate setting forth to the best of
Seller's knowledge all of the matters required to be set forth in the Estoppel
Certificate with respect to each tenant necessary to satisfy the Minimum
Estoppel Requirements.
(k) All other documents Seller is required to deliver pursuant to
the provisions of this Agreement including all documents required by the Lender
in order for Purchaser to assume the loan in accordance with the terms of this
Agreement.
(l) All evidence of authority as may be requested by Title Company
as well as all affidavits and documents reasonably required by Title Company to
issue the Title Commitment and any subsequently issued title policy.
25
(m) The Lender Estoppel.
14. Documents to be Delivered by Purchaser at Closing
At the Closing, Purchaser shall execute, acknowledge and/or
deliver, as applicable, the following to Seller:
(a) The portion of the Purchase Price payable by wire transfer at
the Closing pursuant to Section 2(c) subject to apportionments, credits and
adjustments as provided in this Agreement.
(b) The A & A Agreements.
(c) Purchaser's Transfer Tax Payments together with the Transfer
Tax Return, if any.
(d) All other documents Purchaser is required to deliver pursuant
to the provisions of this Agreement.
15. As Is
(a) Purchaser expressly acknowledges that the Premises is being
sold and accepted "AS-IS, WHERE-IS, WITH ALL FAULTS" except as may otherwise be
specifically provided herein.
(b) This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the date hereof, and Purchaser
acknowledges that neither Seller nor any of Seller's Affiliates, nor any of
their agents or representatives, nor Broker has made any representations or held
out any inducements to Purchaser, and Seller hereby specifically disclaims any
representation, oral or written, past, present or future, other than those
specifically set forth in this Agreement. Without limiting the generality of the
foregoing, Purchaser has not relied on any representations or warranties, and
neither Seller nor any of Seller's Affiliates, nor any of their agents or
representatives has or is willing to make any representations or warranties,
express or implied, other than as may be expressly set forth herein, as to (i)
the status of title to the Premises, (ii) the Leases, (iii) the Contracts, (iv)
the Licenses, (v) the current or future real estate tax liability, assessment or
valuation of the Premises; (vi) the potential qualification of the Premises for
any and all benefits conferred by any laws whether for subsidies, special real
estate tax treatment, insurance, mortgages or any other benefits, whether
similar or dissimilar to those enumerated; (vii) the compliance of the Premises
in its current or any future state with applicable laws or any violations
thereof, including, without limitation, those relating to access for the
handicapped, environmental or zoning matters, and the ability to obtain a change
in the zoning or a variance in respect to the Premises' non-compliance, if any,
with zoning laws; (viii) the nature and extent of any right-of-way, lease,
possession, lien, encumbrance, license, reservation, condition or otherwise;
(ix) the availability of any financing for the purchase, alteration,
rehabilitation or operation of the Premises from any source, including, without
limitation, any government authority or any lender; (x) the current or future
use of the Premises, including, without limitation, the Premises use for
26
commercial, manufacturing or general office purposes; (xi) the present and
future condition and operating state of any Personal Property and the present or
future structural and physical condition of the Buildings, their suitability for
rehabilitation or renovation, or the need for expenditures for capital
improvements, repairs or replacements thereto; (xii) the viability or financial
condition of any tenant; (xiii) the status of the leasing market in which the
Premises is located; or (xv) the actual or projected income or operating
expenses of the Premises.
(c) In the event this Agreement is not terminated pursuant to
Section 4(a)(iii), then, it shall be deemed an acknowledgment by Purchaser that
Purchaser has inspected the Premises, is thoroughly acquainted with and accepts
its condition, and has reviewed, to the extent necessary in its discretion, all
the Premises Information. Seller shall not be liable or bound in any manner by
any oral or written "setups" furnished by any real estate broker, including,
without limitation, the Broker.
(d) Nothing contained in this Section 15 or elsewhere in this
Agreement shall preclude Purchaser from making a claim against Seller for
Seller's fraud.
(e) The provisions of this Section 15 shall survive the termination
of this Agreement and the Closing.
16. Broker
Purchaser and Seller represent and warrant to each other that Eastdil
Realty (the "Broker") is the sole broker with whom it has dealt in connection
with the Property and the transactions described herein. Seller shall be liable
for, and shall indemnify Purchaser against, all brokerage commissions or other
compensation due to the Broker arising out of the transaction contemplated in
this Agreement, which compensation shall be paid subject and pursuant to a
separate agreement between Seller and the Broker. Each party hereto agrees to
indemnify, defend and hold the other harmless from and against any and all
claims, causes of action, losses, costs, expenses, damages or liabilities,
including reasonable attorneys fees and disbursements, which the other may
sustain, incur or be exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of Purchaser as indemnitor
hereunder) the Broker, for fees, commissions or other compensation arising out
of the transactions contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the indemnifying party.
The obligations and representations and warranties contained in this Section 16
shall survive the termination of this Agreement and the Closing.
17. Casualty & Condemnation
(a) Damage or Destruction: If a "material" part (as hereinafter
defined) of the Premises is damaged or destroyed by fire or other casualty,
Seller shall notify Purchaser of such fact and, except as hereinafter provided,
Purchaser shall have the option to terminate this Agreement upon notice to
Seller given not later than ten (10) business days after receipt of Seller's
notice. If this Agreement is so terminated, the provisions of Section 17(c)
shall apply. If (i) Purchaser does not elect to terminate this Agreement, or
(ii) there is damage to or destruction of an "immaterial" part ("immaterial" is
herein deemed to be any damage or destruction which is not "material", as such
term is hereinafter defined) of the Premises and as a result thereof no Major
Tenant is entitled to cancel or terminate its Lease, Purchaser shall close title
as provided in this Agreement and, at the Closing, Seller shall, unless Seller
has repaired such damage or destruction prior to the Closing, (x) pay over to
Purchaser the proceeds of any insurance collected by Seller less the amount of
all reasonable out-of-pocket third party costs incurred by Seller in connection
with the repair of such damage or destruction, and (y) either, (A) if the
insurance policies are in full force and effect and the insurer has no defenses
thereunder, assign and transfer to Purchaser all right, title and interest of
Seller in and to any uncollected insurance proceeds which Seller may be entitled
to receive from such damage or destruction and Purchaser shall receive a credit
27
against the Purchase Price in the amount of any deductible or self-insured
amounts, or (B) if the insurance policies are not in full force and effect or
the insurer has defenses thereunder, Purchaser shall have the option to
terminate this Agreement upon notice to Seller given not later than the Closing
Date, in which event the provisions of Section 17(c) shall apply . A "material"
part of the Premises shall be deemed to have been damaged or destroyed if the
cost of repair or replacement shall be $500,000.00 or more as reasonably as
estimated by Seller.
(b) Condemnation: If, prior to the Closing Date, all or any portion
of the Premises is taken by eminent domain or condemnation (or is the subject of
a pending taking which has not been consummated), Seller shall notify Purchaser
of such fact and the Purchaser shall have the option to terminate this Agreement
upon notice to the Seller given not later than ten (10) business days after
receipt of the Seller's notice. If this Agreement is so terminated, the
provisions of Section 17(c) shall apply. If Purchaser does not elect to
terminate this Agreement, at the Closing Seller shall assign and turnover, and
Purchaser shall be entitled to receive and keep, all awards or other proceeds
for such taking by eminent domain or condemnation.
(c) If Purchaser elects to terminate this Agreement pursuant to
Section 17(a) or 17(b), this Agreement shall be terminated and neither party
shall have any further rights, obligations or liabilities hereunder, except for
the Surviving Obligations, and except that Purchaser shall be entitled to a
return of the Fund subject to Section 22(d) and provided Purchaser is not
otherwise in default hereunder.
18. Remedies
(a) If the Closing fails to occur by reason of Seller's inability
(as opposed to Purchaser's or Seller's default or Seller's refusal to perform)
(subject to Section 5(b)) to perform its obligations under this Agreement, then
Purchaser, as its sole remedy for such inability of Seller, may terminate this
Agreement by notice to Seller. If Purchaser elects to terminate this Agreement,
then this Agreement shall be terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except for the Surviving
Obligations, and except that Purchaser shall be entitled to a return of the Fund
subject to Section 22(d) and provided Purchaser is not otherwise in default
hereunder. Except as set forth in this Section 18(a), Purchaser hereby expressly
waives, relinquishes and releases any other right or remedy available to it at
law, in equity or otherwise by reason of Seller's inability to perform its
obligations hereunder.
28
(b) In the event of a default hereunder by Purchaser or, if the
Closing fails to occur by reason of Purchaser's failure or refusal to perform
its obligations hereunder, then Seller may terminate this Agreement by notice to
Purchaser. If Seller elects to terminate this Agreement, then this Agreement
shall be terminated and Seller may retain the Fund as liquidated damages as its
sole and exclusive remedy for all loss, damage and expenses suffered by Seller,
it being agreed that Seller's damages are impossible to ascertain, and neither
party shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations. Nothing contained herein shall limit or
restrict Seller's ability to pursue any rights or remedies it may have against
Purchaser with respect to the Surviving Obligations. Except as set forth in this
Section 18(b) and Section 22(f), Seller hereby expressly waives, relinquishes
and releases any other right or remedy available to it at law, in equity or
otherwise by reason of Purchaser's default hereunder or Purchaser's failure or
refusal to perform its obligations hereunder.
(c) If the Closing fails to occur by reason of Seller's failure or
refusal to perform its obligations hereunder or its default, then Purchaser, may
either (i) terminate this Agreement by notice to Seller and obtain a return of
the Deposit or (ii) seek specific performance from Seller or any other remedy at
law or in equity. As a condition precedent to Purchaser exercising any right it
may have to bring an action for specific performance as the result of Seller's
failure or refusal to perform its obligations hereunder, Purchaser must commence
such an action within ninety (90) days after the occurrence of such default.
Purchaser agrees that its failure to timely commence such an action for specific
performance within such ninety (90)-day period shall be deemed a waiver by it of
its right to commence such an action.
(d) After Closing, Purchaser shall retain all rights and remedies
at law or in equity that it may have against Seller except as expressly limited
pursuant to this Agreement.
19. Assignment
This Agreement may not be assigned by Purchaser without the express
written consent of Lender. Any assignment or attempted assignment by Purchaser
without the express written consent of Lender shall constitute a default by
Purchaser hereunder and shall be null and void.
20. Access to Records
For a period of three (3) years subsequent to the Closing Date, Seller,
Seller's Affiliates and their employees, agents and representatives shall be
entitled to access during business hours to all documents, books and records
given to Purchaser by Seller at the Closing for tax and audit purposes,
regulatory compliance, and cooperation with governmental investigations upon
reasonable prior notice to Purchaser, and shall have the right, at its sole cost
and expense, to make copies of such documents, books and records.
21. Notices
(a) All notices, elections, consents, approvals, demands,
objections, requests or other communications which Seller, Purchaser or Escrow
Agent may be required or desire to give pursuant to, under or by virtue of this
Agreement must be in writing and sent by (i) hand-delivery, (ii) first class
U.S. certified or registered mail, return receipt requested, with postage
prepaid, or (iii) express mail or courier (for next business day delivery),
addressed as follows:
29
If to Seller:
Acadia Realty Limited Partnership
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
with copies to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx
00000 XXX Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Purchaser:
UrbanAmerica, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
with a copy to:
Xxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
If to Escrow Agent:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx
00000 XXX Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
(b) Seller, Purchaser or Escrow Agent may designate another
addressee or change its address for notices and other communications hereunder
by a notice given to the other parties in the manner provided in this Section
21. A notice or other communication sent in compliance with the provisions of
this Section 21 shall be deemed given and received on (i) the third (3rd) day
following the date it is deposited in the U.S. mail, or (ii) the date it is
delivered to the other party if sent by express mail, courier or hand.
30
22. Premises Information and Confidentiality
(a) Purchaser agrees that, prior to the Closing, all Premises
Information shall be kept strictly confidential and shall not, without the prior
consent of Seller, be disclosed by Purchaser or Purchaser's Representatives, in
any manner whatsoever, in whole or in part, and will not be used by Purchaser or
Purchaser's Representatives, directly or indirectly, for any purpose other than
evaluating the Premises. Moreover, Purchaser agrees that, prior to the Closing,
the Premises Information will be transmitted only to Purchaser's Representatives
who need to know the Premises Information for the purpose of evaluating the
Premises, and who are informed by the Purchaser of the confidential nature of
the Premises Information. The provisions of this Section 22(a) shall in no event
apply to Premises Information which is a matter of public record and shall not
prevent Purchaser from complying with laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting requirements.
(b) Purchaser and Seller, for the benefit of each other, hereby
agree that between the date hereof and the Closing Date, they will not release
or cause or permit to be released any press notices, publicity (oral or written)
or advertising promotion relating to, or otherwise announce or disclose or cause
or permit to be announced or disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the transactions contemplated
herein, without first obtaining the written consent of the other party hereto.
It is understood that the foregoing shall not preclude either party from
discussing the substance or any relevant details of the transactions
contemplated in this Agreement, subject to the terms of Section 22(a), with any
of its attorneys, accountants, professional consultants or potential lenders, as
the case may be, or prevent either party hereto from complying with Laws,
including, without limitation, governmental regulatory, disclosure, tax and
reporting requirements.
(c) Purchaser and Seller shall indemnify and hold each other
harmless from and against any and all claims, demands, causes of action, losses,
damages, liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements) suffered or incurred by either party and
arising out of or in connection with a breach by the other of the provisions of
this Section 22.
(d) In the event this Agreement is terminated, Purchaser and
Purchaser's Representatives shall promptly deliver to Seller all originals and
copies of the Premises Information referred to in Section 22(e) in the
possession of Purchaser and Purchaser's Representatives.
(e) As used in this Agreement, the term "Premises Information"
shall mean all information and documents in any way relating to the Premises
provided by Seller, the operation thereof or the sale thereof (including,
without limitation, Leases, Contracts, Labor Contracts and Licenses) furnished
to, or otherwise made available for review by, Purchaser or its directors,
officers, employees, affiliates, partners, brokers, agents or other
representatives, including, without limitation, attorneys, accountants,
contractors, consultants, engineers and financial advisors (collectively,
"Purchaser's Representatives"), by Seller or any of Seller's Affiliates, or
their agents or representatives, including, without limitation, their
contractors, engineers, attorneys, accountants, consultants, brokers or
advisors.
31
(f) In addition to any other remedies available to Seller, Seller
shall have the right to seek equitable relief, including, without limitation,
injunctive relief or specific performance, against Purchaser or Purchaser's
Representatives in order to enforce the provisions of this Section 22 and
4(e)(i).
(g) The provisions of this Section 22 shall survive the termination
of this Agreement and the Closing for nine (9) months.
23. Miscellaneous
(a) This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no consent or
approval required pursuant to this Agreement shall be effective, unless the same
shall be in writing and signed by or on behalf of the party to be charged.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns.
(c) All prior statements, understandings, representations and
agreements between the parties, oral or written, are superseded by and merged in
this Agreement, which alone fully and completely expresses the agreement between
them in connection with this transaction and which is entered into after full
investigation, neither party relying upon any statement, understanding,
representation or agreement made by the other not embodied in this Agreement.
This Agreement shall be given a fair and reasonable construction in accordance
with the intentions of the parties hereto, and without regard to or aid of
canons requiring construction against Seller or the party drafting this
Agreement.
(d) Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed officer,
director, employee, trustee, shareholder, partner, principal, parent, subsidiary
or other affiliate of Seller, or any officer, director, employee, trustee,
shareholder, partner or principal of any such parent, subsidiary or other
affiliate (collectively, "Seller's Affiliates"), arising out of or in connection
with this Agreement or the transactions contemplated hereby. Purchaser agrees to
look solely to Seller and its assets for the satisfaction of any liability or
obligation arising under this Agreement or the transactions contemplated hereby,
or for the performance of any of the covenants, warranties or other agreements
contained herein, and further agrees not to xxx or otherwise seek to enforce any
personal obligation against any of Seller's Affiliates with respect to any
matters arising out of or in connection with this Agreement or the transactions
contemplated hereby. Without limiting the generality of the foregoing provisions
of this Section 23(d), Purchaser hereby unconditionally and irrevocably waives
any and all claims and causes of action of any nature whatsoever it may now or
hereafter have against Seller's Affiliates, and hereby unconditionally and
irrevocably releases and discharges Seller's Affiliates from any and all
liability whatsoever which may now or hereafter accrue in favor of Purchaser
against Seller's Affiliates, in connection with or arising out of this Agreement
or the transactions contemplated hereby. Seller agrees that it does not have and
will not have any claims or causes of action against any disclosed or
undisclosed officer, director, employee, trustee, shareholder, partner,
principal, parent, subsidiary or other affiliate of Purchaser, or any officer,
32
director, employee, trustee, shareholder, partner or principal of any such
parent, subsidiary or other affiliate (collectively, "Purchaser's Affiliates"),
arising out of or in connection with this Agreement or the transactions
contemplated hereby. Seller agrees to look solely to Purchaser and its assets
for the satisfaction of any liability or obligation arising under this Agreement
or the transactions contemplated hereby, or for the performance of any of the
covenants, warranties or other agreements contained herein, and further agrees
not to xxx or otherwise seek to enforce any personal obligation against any of
Purchaser's Affiliates with respect to any matters arising out of or in
connection with this Agreement or the transactions contemplated hereby. Without
limiting the generality of the foregoing provisions of this Section 23(d),
Seller hereby unconditionally and irrevocably waives any and all claims and
causes of action of any nature whatsoever it may now or hereafter have against
Purchaser's Affiliates, and hereby unconditionally and irrevocably releases and
discharges Purchaser's Affiliates from any and all liability whatsoever which
may now or hereafter accrue in favor of Seller against Purchaser's Affiliates,
in connection with or arising out of this Agreement or the transactions
contemplated hereby. The provisions of this Section 23(d) shall survive the
termination of this Agreement and the Closing.
(e) No failure or delay of either party in the exercise of any
right or remedy given to such party hereunder or the waiver by any party of any
condition hereunder for its benefit (unless the time specified herein for
exercise of such right or remedy has expired) shall constitute a waiver of any
other or further right or remedy nor shall any single or partial exercise of any
right or remedy preclude other or further exercise thereof or any other right or
remedy. No waiver by either party of any breach hereunder or failure or refusal
by the other party to comply with its obligations shall be deemed a waiver of
any other or subsequent breach, failure or refusal to so comply.
(f) Neither this Agreement nor any memorandum thereof shall be
recorded and any attempted recordation hereof shall be void and shall constitute
a default.
(g) This Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument.
(h) Each of the Exhibits and Schedules referred to herein and is
incorporated herein by this reference.
(i) The caption headings in this Agreement are for convenience only
and are not intended to be a part of this Agreement and shall not be construed
to modify, explain or alter any of the terms, covenants or conditions herein
contained.
(j) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of New York.
33
(k) If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this Agreement
and to this end the provisions of this Agreement are intended to be and shall be
severable. Notwithstanding the foregoing sentence, if (i) any provision of this
Agreement is finally determined by a court of competent jurisdiction to be
unenforceable or invalid in whole or in part, (ii) the opportunity for all
appeals of such determination have expired, and (iii) such unenforceability or
invalidity alters the substance of this Agreement (taken as a whole) so as to
deny either party, in a material way, the realization of the intended benefit of
its bargain, such party may terminate this Agreement within thirty (30) days
after the final determination by notice to the other. If such party so elects to
terminate this Agreement, then this Agreement shall be terminated and neither
party shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations, and except that Purchaser shall be
entitled to a return of the Fund subject to Section 22(d) and provided Purchaser
is not otherwise in default hereunder.
34
(l) SELLER AND PURCHASER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT) BROUGHT BY
EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Acadia Realty Limited Partnership, Seller
By: Acadia Realty Trust, General Partner
By: _____________________________________
Xxxxxxx X. Xxxxxxxxx, President
Xxxx Northwood Associates
By: Xxxx Northwood Realty, Inc., General Partner
By: _____________________________________
Xxxxxxx X. Xxxxxxxxx, President
UrbanAmerica, L. P., Purchaser
By: _____________________________________
Name: ____________________________________
Title: _________________________________
35
EXHIBIT "A"
Legal Description
Parcel No. 1:
Commence at the Southeast corner of the Southwest Quarter of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx Xxxxxx, Xxxxxxx, and run North 02 degrees
40 minutes West 40.04 feet to a point on the North right-of-way boundary of
Xxxxxx Street as shown on the plat of Parkview Estates Unit No. 1 as recorded in
Plat Book 3, page 10 of the Public Records of Xxxx County, Florida, thence South
89 degrees 54 minutes West 647.08 feet to an iron pin, thence North 00 degrees
06 minutes West 0.62 feet to an iron pin, thence North 89 degrees 54 minutes
East 2.0 feet to an iron pin, thence North 00 degrees 00 minutes 22 seconds East
29.38 feet to an iron pin for the Point of Beginning. From said Point of
Beginning continue North 00 degrees 00 minutes 22 seconds East 444.38 feet to a
point in a concrete power pole, thence South 89 degrees 58 minutes 26 seconds
West 352.75 feet to a concrete monument, thence North 02 degrees 35 minutes 36
seconds West 408.39 feet to a concrete monument, thence North 10 degrees 55
minutes 48 seconds East 413.33 feet to a concrete monument, thence North 70
degrees 39 minutes 36 seconds East 639.44 feet to a nail and cap, thence North
46 degrees 49 minutes 36 seconds East 162.60 feet to a concrete monument lying
on a curve concave to the Southwesterly on the Southwesterly right of way
boundary of North Monroe Street (State Road No. 63), thence from a tangent
bearing of South 45 degrees 12 minutes 49 seconds East run Southeasterly along
said right of way curve with a radius of 5708.21 feet, through a central angle
of 03 degrees 32 minutes 27 seconds, for an arc distance of 352.77 feet to a
concrete monument marking the Southeast corner of property described in Official
Records Book 363, pages 276 and 277 of the Public Records of Xxxx County,
Florida, thence North 89 degrees 31 minutes 25 seconds West along the South
boundary of said property 107.15 feet to a concrete monument on the
Northwesterly boundary of Xxx 0, Xxxxx "X" xx xxxx Xxxxxxxx Xxxxxxx Unit No. 1,
thence South 49 degrees 08 minutes 11 seconds West along the Northwesterly
boundary of said Lot 6 and a projection thereof a distance of 171.52 feet to a
concrete monument, thence South 40 degrees 51 minutes 49 seconds East 559.57
feet to an iron pin, thence South 56 degrees 50 minutes 42 seconds West 10.08
feet to a concrete monument, thence South 41 degrees 08 minutes 37 seconds East
51.05 feet to a concrete monument on the Northwesterly right of way boundary of
Xxxxxx Xxxxxx Xxxx, Xx. Boulevard (formerly Boulevard Street) (80 foot right of
way), thence South 56 degrees 50 minutes 42 seconds West along said right of way
boundary 79.88 feet to a concrete monument lying on a curve concave to the
Southeasterly, thence from a tangent bearing of South 56 degrees 36 minutes 58
seconds West run Southwesterly along said right of way curve with a radius of
340.00 feet, through a central angle of 56 degrees 16 minutes 32 seconds, for an
arc distance of 333.94 feet to a concrete monument, thence South 00 degrees 02
minutes 00 seconds East (bearing base) along said right of way boundary 420.55
feet to a concrete monument on the North right of way boundary of said Xxxxxx
Street as described in Official Records Book 333, pages 238-240 of the Public
Records of Xxxx County, Florida, thence South 89 degrees 54 minutes 00 seconds
West along said North right of way boundary 606.52 feet to the Point of
Beginning.
A-1
Exhibit "A" Legal Description - Page Two
Less and Except right of way described in Official Records Book 264, page 477 of
the Public Records of Xxxx County, Florida.
Also Less and Excepting that part thereof described in Official Records Book
1644, page 1613 of the Public Records of Xxxx County, Florida.
Also Less and Excepting that part thereof described in Official Records Book
1344, page 737 of the Public Records of Xxxx County, Florida.
Parcel No. 2:
Commence at the Southeast corner of the Southwest Quarter of the Southwest
Quarter of the Southeast Quarter of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx Xxxxxx, Xxxxxxx, and run North 00 41 minutes West 40.0 feet, thence South
89 degrees 54 minutes West 621.48 feet to a point on the South boundary of
Parkview Estates Unit No. 1 as recorded in Plat Book 3, page 10 of the Public
Records of Xxxx County, Florida, thence North 00 degrees 06 minutes West 3.29
feet to the intersection of the North right of way boundary of Xxxxxx Street
with the East right of way boundary of the old right of way of Boulevard Street,
said intersection being 36.7 feet West of the West boundary of Xxx 00, Xxxxx "X"
xx xxxx Xxxxxxxx Xxxxxxx Unit No. 1, thence North 00 degrees 02 minutes 00
seconds West (bearing base) along the Easterly right of way boundary of
Boulevard Street 24.00 feet to the existing North right of way boundary of
Xxxxxx Street as described in Official Records Book 351, pages 16 and 17 of the
Public Records of Xxxx County, Florida, thence continue North 00 degrees 02
minutes 00 seconds West along the East right of way boundary of Xxxxxx Xxxxxx
Xxxx, Xx., Boulevard (formerly Boulevard Street) (80 foot right of way) a
distance of 175.00 feet to a concrete monument marking the Northwest corner of
property deeded to Standard Oil Company and recorded in Official Records Book
356, pages 287 and 288 of the Public Records of Xxxx County, Florida, for the
Point of Beginning.
From said Point of Beginning continue thence North 00 degrees 02 minutes 00
seconds West along said East right of way boundary 50.93 feet to a concrete
monument, thence South 89 degrees 58 minutes 14 seconds East 350.16 feet to a
concrete monument (formerly a 1/2" rebar), thence North 00 degrees 03 minutes 27
seconds East 200.00 feet to a concrete monument, thence North 89 degrees 58
minutes 14 seconds West 350.48 feet to a concrete monument on the Easterly right
of way boundary of said Xxxxxx Xxxxxx Xxxx, Xx., Boulevard (formerly Boulevard
Street) (80 foot right of way), said point lying on a curve concave to the
Easterly, thence from a tangent bearing of North 00 degrees 18 minutes 57
seconds East run Northerly along said right of way curve with a radius of 260.00
feet, through a central angle of 11 degrees 11 minutes 46 seconds, for an arc
distance of 50.81 feet to a nail and cap set in an iron pipe marking the
Southwest corner of property described in Official Records Book 506, page 748
and 750 of the Public Records of Xxxx County, Florida, thence South 89 degrees
53 minutes 38 seconds East along the South boundary of said property 345.31 feet
to a concrete monument marking the Southeast corner of said property, thence
North 00 degrees 02 minutes 00 seconds West along
A-2
Exhibit "A" Legal Description - Page Three
the East boundary of said property 87.08 feet to a concrete monument on the
Southwesterly boundary of a 30 foot driveway adjacent to Block "E" of said
Parkview Estates Unit No. 1, thence South 39 degrees 21 minutes 30 seconds East
along the Southwesterly boundary of said drive 161.37 feet to a concrete
monument, thence North 56 degrees 22 minutes 21 seconds East along the
Southeasterly boundary of a 15 foot drive adjacent to said Block "E" a distance
of 157.63 feet to an iron pin lying on a curve concave to the Southwesterly on
the Southwesterly right of way boundary of North Monroe Street (State Road No.
63), thence from a tangent bearing of South 31 degrees 35 minutes 18 seconds
East run Southeasterly along said right of way curve with a radius of 5708.21
feet, through a central angle of 00 degrees 03 minutes 01 seconds, for an arc
distance of 5.00 feet to an iron pin on the Southeasterly boundary of said
Parkview Estates Unit No. 1, thence South 56 degrees 22 minutes 21 seconds West
along said Southeasterly boundary 166.93 feet to a concrete monument, thence
South 00 degrees 08 minutes 21 seconds West along the Easterly boundary of said
Parkview Estates Unit No. 1 a distance of 432.24 feet to a concrete monument on
the Northerly right of way boundary of Xxxxxx Street as described in Official
Records Book 351, pages 16 and 17, thence North 89 degrees 07 minutes 11 seconds
West along said Northerly right of way boundary 271.42 feet to a concrete
monument marking the Southeast corner of said property deeded to Standard Oil
Company, thence North 00 degrees 02 minutes 00 seconds West along the East
boundary of said property 175.00 feet to a concrete monument, thence South 89
degrees 48 minutes 40 seconds West along the North boundary of said property
175.00 feet to the Point of Beginning.
LESS AND EXCEPT that portion of the above described property set forth in that
Special Warranty Deed recorded in Official Records Book 1784, Page 2368.
Parcel No. 3:
Begin at the Westerly corner of Xxx 0, Xxxxx "X" xx Xxxxxxxx Xxxxxxx Xxxx Xx. 0
as per plat recorded in Plat Book 3, page 10 of the Public Records of Xxxx
County, Florida, thence South 50 degrees 50 minutes 46 seconds West 50.00 feet
to the most Westerly corner of that parcel of property described in Official
Records Book 359, pages 288-289 of the Public Records of Xxxx County, Florida,
thence South 39 degrees 10 minutes 54 seconds East along the Southwesterly
boundary of said parcel 252.62 feet to the Westerly right of way boundary of the
proposed Xxxxxx Xxxxxx Xxxx Boulevard Extension (100 foot right of way), said
point also being a point on a curve concave to the Southeasterly with a radius
of 425.00 feet, thence Northeasterly along said curve an arc distance of 240.63
feet, through a central angle of 32 degrees 26 minutes 25 seconds (the chord of
said arc bears North 24 degrees 26 minutes 27 seconds East with a length of
237.43 feet) to a point of reverse curve concave to the West having a radius of
30.00 feet, thence Northerly along said curve an arc distance of 41.99 feet,
through a central angle of 80 degrees 11 minutes 13 seconds (the chord of said
arc bears North 00 degrees 34 minutes 03 seconds East with a length of 38.64
feet) to a point on a curve concave to the Southwesterly with a radius of
5693.21 feet, said point also being on the proposed South boundary of State Road
No. 63 (U.S. 00, Xxxxx Xxxxxx Xxxxxx), thence Northwesterly along said curve an
arc distance of 59.94 feet, through a central angle of 00 degrees 36 minutes 12
seconds (the chord of said curve bears North 39 degrees 49 minutes 40 seconds
West with a length of 59.94 feet) to a point on the
A-3
Exhibit "A" Legal Description - Page Four
Southerly boundary of that parcel of property recorded in Official Records Book
363, page 276 of said Public Records, thence North 87 degrees 51 minutes 08
seconds West along said Southerly boundary 86.94 feet to the Northwesterly
boundary of said Lot 6, thence South 50 degrees 50 minutes 46 seconds West along
said Northerly boundary 121.52 feet to the Point of Beginning.
The above parcel is also described as:
Begin at a concrete monument #1254 marking the most Westerly corner of that
parcel of land described in Official Records Book 1210, page 1457 of the Public
Records of Xxxx County, Florida, and run thence North 49 degrees 08 minutes 11
seconds East along the Northerly boundary of Lot 6 and the projection thereof
Block "F" of Parkview Estates Unit No. 1, a subdivision as per map or plat
thereof recorded in Plat Book 3, page 10 of the Public Records of Xxxx County,
Florida, a distance of 171.52 feet to a concrete monument, thence South 89
degrees 31 minutes 25 seconds East 86.90 feet to a City of Tallahassee iron pin
on the proposed Southwesterly right of way boundary of State Road No. 63 (North
Monroe Street - U.S. Highway No. 27), said iron pin lying on a curve concave to
the Southwesterly, thence Southeasterly along said proposed right of way
boundary and said curve with a radius of 5693.21 feet, through a central angle
of 00 degrees 36 minutes 13 seconds, for an arc distance of 59.97 feet (the
chord of said arc being South 41 degrees 47 minutes 57 seconds East 59.97 feet)
to a City of Tallahassee iron pin marking a point of compound curve on the
Northwesterly right of way boundary of the proposed relocation of Xxxxxx Xxxxxx
Xxxx Boulevard, thence Southerly and Southwesterly along said right of way
boundary and said curve with a radius of 30.00 feet, through a central angle of
80 degrees 11 minutes 17 seconds, for an arc distance of 41.99 feet (the chord
of said arc being South 01 degree 06 minutes 45 seconds East 38.64 feet) to a
City of Tallahassee iron pin marking a point of reverse curve, thence
Southwesterly along said right of way boundary and said curve with a radius of
425.00 feet, through a central angle of 32 degrees 26 minutes 33 seconds, for an
arc distance of 240.65 feet to a City of Tallahassee iron pin, thence North 40
degrees 51 minutes 49 seconds West along the Southwesterly boundary of property
described in Official Records Book 1210, page 1457 of said Public Records of
Xxxx County, Florida, a distance of 252.50 feet to the Point of Beginning.
Less and Excepting the following parcel:
Commence at the Westerly corner of Xxx 0, Xxxxx "X" xx Xxxxxxxx Xxxxxxx Xxxx Xx.
0 as per plat recorded in Plat Book 3, page 10 of the Public Records of Xxxx
County, Florida, thence South 50 degrees 50 minutes 46 seconds West 50.00 feet
to the most Northwesterly corner, also the most Westerly corner of that parcel
of property described in Official Records Book 359, pages 288-289 of said Public
Records, thence leaving said Northwesterly corner South 39 degrees 10 minutes 54
seconds East along the Southwesterly boundary of said parcel 252.62 feet to the
Point of Beginning; said point also being on the Westerly right of way boundary
of the proposed Xxxxxx Xxxxxx Xxxx Boulevard Extension (100 foot right of way).
From said Point of Beginning continue South 39 degrees 10 minutes 54 seconds
East along the Southwesterly boundary of said parcel 306.95 feet, thence South
58 degrees 45 minutes 18 seconds West 10.08 feet; thence
A-4
Exhibit "A" Legal Description - Page Five
South 39 degrees 10 minutes 56 seconds East 51.05 feet to a point on the
Northwesterly right of way boundary of the existing Xxxxxx Xxxxxx Xxxx
Boulevard, thence along the Northwesterly right of way boundary of the existing
Xxxxxx Xxxxxx Xxxx Boulevard, South 58 degrees 44 minutes 27 seconds West 80.82
feet to the beginning of a curve concave to the Southeasterly with a radius of
340.00 feet, thence Southwesterly 334.22 feet along said curve, through a
central angle of 56 degrees 10 minutes 18 seconds (the chord of said arc bears
South 29 degrees 50 minutes 45 seconds West with a length of 320.92 feet),
thence leaving said Northwesterly right of way boundary North 88 degrees 18
minutes 54 seconds West 9.72 feet to a point on the Westerly right of way
boundary of said proposed right of way boundary, thence North 01 degrees 43
minutes 18 seconds East along said proposed right of way boundary 554.91 feet to
a point on a curve concave to the Southeasterly with a radius of 425.00 feet,
thence Northeasterly 48.21 feet along said curve, through a central angle of 06
degrees 29 minutes 56 seconds (the chord of said arc being North 04 degrees 48
minutes 17 seconds East with a length of 48.18 feet) to the Point of Beginning.
The above parcel is also described as follows:
Commence at a concrete monument #1254 marking the most Westerly corner of that
parcel of property described in Official Records Book 1210, page 1457 of the
Public Records of Xxxx County, Florida, and run thence South 40 degrees 51
minutes 49 seconds East 252.50 feet to a City of Tallahassee iron pin for the
Point of Beginning. From said Point of Beginning continue South 40 degrees 51
minutes 49 seconds East 307.07 feet to an iron pin with a cap, thence South 56
degrees 50 minutes 42 seconds West 10.08 feet to a concrete monument, thence
South 41 degrees 08 minutes 37 seconds East 51.05 feet to a concrete monument on
the Northwesterly right of way boundary of the existing 80 foot right of way
boundary of Xxxxxx Xxxxxx Xxxx Boulevard, thence South 56 degrees 50 minutes 42
seconds West along said Northwesterly right of way boundary 79.88 feet to a
concrete monument on a curve concave to the Southeasterly, thence Southwesterly
along said right of way boundary and said curve with a radius of 340.00 feet,
through a central angle of 56 degrees 16 minutes 32 seconds, for an arc distance
of 333.94 feet (the chord of said arc being South 28 degrees, 28 minutes 42
seconds West 320.68 feet) to a concrete monument, thence South 82 degrees 13
minutes 06 seconds West 9.58 to a City of Tallahassee iron pin on the Westerly
right of way boundary of a proposed 80 foot right of way of a proposed relocated
Xxxxxx Xxxxxx Xxxx Boulevard, thence North 00 degrees 02 minutes 50 seconds East
along said Westerly right of way boundary 554.92 feet to a City of Tallahassee
iron pin with a cap and a point of curve to the right, thence Northeasterly
along said right of way boundary and said curve with a radius of 425.00 feet,
through a central angle of 06 degrees 30 minutes 10 seconds, for an arc distance
of 48.23 feet (the chord of said arc being North 03 degrees 17 minutes 16
seconds East 48.21 feet) to the Point of Beginning.
A-5
Exhibit "A" Legal Description - Page Six
Parcel No. 4:
A tract of land located in Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx
Xxxxxx, Xxxxxxx, more particularly described as follows:
Commence at the Northwest corner of Xxx 00, Xxxxx "X" xx Xxxxxxxx Xxxx Xx. 0, a
subdivision recorded in Plat Book 3, page 126 of the Public Records of Xxxx
County, Florida, and run South 35 degrees 21 minutes 20 seconds East 452.39
feet, thence run North 40 degrees 14 minutes 40 seconds East 260.69 feet to a
concrete monument on the Northeasterly right of way of Xxxxx Boulevard, thence
run along said right of way Southeasterly along a curve concave to the Southwest
with a radius of 1728.26 feet, through a central angle of 06 degrees 24 minutes
20 seconds, for an arc distance of 193.22 feet (the chord bears South 37 degrees
54 minutes 10 seconds East 193.12 feet), thence continue along said right of way
South 34 degrees 42 minutes 00 seconds East 630.19 feet, thence Southeasterly
along a curve concave to the Northeasterly with a radius of 108.60 feet, through
a central angle of 44 degrees 32 minutes 00 seconds, for an arc distance of
84.41 feet (the chord bearing South 56 degrees 58 minutes 00 seconds East 82.30
feet), thence South 79 degrees 14 minutes 00 seconds East 157.14 feet, thence
leaving said right xx xxx xxx Xxxxx 00 degrees 55 minutes 40 seconds East 50.00
feet, thence run North 70 degrees 02 minutes 45 seconds East 49.25 feet to the
Point of Beginning. From said Point of Beginning continue North 70 degrees 02
minutes 45 seconds East 566.30 feet, thence run North 47 degrees 08 minutes 37
seconds West 170.79 feet, thence run South 39 degrees 03 minutes 46 seconds West
202.18 feet, thence run North 49 degrees 42 minutes 20 seconds West 632.12 feet
to the Southeasterly right of way of Universal Drive, thence run along said
right of way Southwesterly along a curve concave to the Northwest with a radius
of 530.96 feet, through a central angle of 15 degrees 00 minutes 20 seconds, for
an arc distance of 139.06 feet (the chord bears South 47 degrees 47 minutes 50
seconds West 138.66 feet), thence continue along said right of way South 55
degrees 18 minutes 00 seconds West 15.60 feet, thence leaving said right xx xxx
xxx Xxxxx 00 degrees 42 minutes 00 seconds East along the Northeasterly boundary
of the property recorded in Official Records Book 1344, pages 737-740 of the
Public Records of Xxxx County, Florida, for 558.56 feet to the Point of
Beginning.
A-6
EXHIBIT "B"
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of this ______ day of May, 2000, by and
among Acadia Realty Limited Partnership, a Delaware limited partnership, and
Xxxx Northwood Associates Limited Partnership, a Florida limited partnership,
(collectively, the "Seller"); UrbanAmerica, L.P., a Delaware limited partnership
("Purchaser"); and Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx ("Escrow Agent").
WHEREAS, Seller is the owner of the property commonly known as
Northwood Centre which is located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
00000 ("Premises"); and
WHEREAS, contemporaneously herewith, Seller and Purchaser have entered
into an agreement whereby, subject to the terms and conditions contained
therein, Seller shall sell the Premises to Purchaser and Purchaser shall
purchase the Premises from Seller (the "Agreement"); and
WHEREAS, Seller and Purchaser desire that Escrow Agent act as escrow
agent, and Escrow Agent is willing to do so, all upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Escrow Agent shall hold the Downpayment and all interest accrued
thereon, if any (collectively, the "Fund") in an attorney escrow account and
shall dispose of the Fund only in accordance with the following provisions:
(a) Escrow Agent shall deliver the Fund to Seller or Purchaser, as
the case may be, as follows:
(i) to Seller, upon completion of the Closing; or
(ii) to Seller, after receipt of Seller's demand in which
Seller certifies either that (A) Purchaser has defaulted
under the Agreement, or (B) the Agreement has been
otherwise terminated or cancelled, and Seller is thereby
entitled to receive the Fund; Escrow Agent shall not
honor Seller's demand until more than ten (10) days
after Escrow Agent has given a copy of Seller's demand
to Purchaser in accordance with this Escrow Agreement
nor thereafter if Escrow Agent receives a Notice of
Objection from Purchaser within such ten (10)-day
period; or
(iii) to Purchaser, after receipt of Purchaser's demand in
which Purchaser certifies either that (A) Seller has
defaulted under the Agreement, or (B) the Agreement has
been otherwise terminated or cancelled, and Purchaser is
thereby entitled to receive the Fund; but Escrow Agent
shall not honor Purchaser's demand until more than ten
(10) days after Escrow Agent has given a copy of
Purchaser's demand to Seller in accordance with this
Escrow Agreement, nor thereafter if Escrow Agent
receives a Notice of Objection from Seller within such
ten (10)-day period.
B-1
(b) (i) Upon receipt of a written demand from Seller or Purchaser
under this Escrow Agreement, Escrow Agent shall send a copy of such demand to
the other party. Within ten (10) days after the date of receiving same, but not
thereafter, the other party may object to delivery of the Fund to the party
making such demand by giving a notice of objection (a "Notice of Objection") to
Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a
copy of such Notice of Objection to the party who made the demand; and
thereafter, in its sole and absolute discretion, Escrow Agent may elect either
(A) to continue to hold the Fund until Escrow Agent receives a written agreement
of Purchaser and Seller directing the disbursement of the Fund, in which event
Escrow Agent shall disburse the Fund in accordance with such agreement; and/or
(B) to take any and all actions as Escrow Agent deems necessary or desirable
(except to disburse all or any portion of the Fund to any party), in its sole
and absolute discretion, to discharge and terminate its duties under this
Agreement, including, without limitation, depositing the Fund into any court of
competent jurisdiction and bringing any action of interpleader or any other
proceeding; and/or (C) in the event of any litigation between Seller and
Purchaser, to deposit the Fund with the clerk of the court in which such
litigation is pending.
(ii) If Escrow Agent is uncertain for any reason whatsoever as
to its duties or rights hereunder, and whether or not Escrow Agent has received
any written demand or Notice of Objection under this Escrow Agreement,
notwithstanding anything to the contrary herein, Escrow Agent may hold the Fund
and may decline to take any other action whatsoever. In the event the Fund is
deposited in a court by Escrow Agent, Escrow Agent shall be entitled to rely
upon the decision of such court. In the event of any dispute whatsoever among
the parties with respect to disposition of the Fund, Purchaser and Seller shall
pay the attorney's fees and costs incurred by Escrow Agent (which said parties
shall share equally, but for which said parties shall be jointly and severally
liable) for any litigation in which Escrow Agent is named as, or becomes, a
party.
(c) Notwithstanding anything to the contrary in this Agreement,
within two (2) business days after the date of this Agreement, Escrow Agent
shall place the Downpayment in an Approved Investment (as defined hereinafter).
The interest, if any, which accrues on such Approved Investment shall be deemed
part of the Fund; and Escrow Agent shall dispose of such interest as and with
the Fund pursuant to this Agreement. Escrow Agent may not commingle the Fund
with any other funds held by Escrow Agent. Escrow Agent may convert the Fund
from the Approved Investment into cash or a non-interest-bearing demand account
at an Approved Institution as follows:
B-2
(i) at any time within two (2) business days prior to the
Closing Date; or
(ii) if the Closing Date is accelerated or extended, at any
time within two (2) business days prior to the accelerated or extended Closing
Date (provided, however, that Escrow Agent shall hold the Fund in an Approved
Investment upon notice from Seller and Purchaser of any adjournment of the
accelerated or extended Closing Date).
(d) As used herein, the term, "Approved Investment" means (i) any
interest-bearing demand account or money market fund in a financial institution
having a net worth in excess of $50,000,000 or in any other institution
otherwise approved by both Seller and Purchaser (collectively, an "Approved
Institution"), or (ii) any other investment approved by both Seller and
Purchaser. The rate of interest or yield need not be the maximum available and
deposits, withdrawals, purchases, reinvestment of any matured investment and
sales shall be made in the sole discretion of Escrow Agent, which shall have no
liability whatsoever therefor. Discounts earned shall be deemed interest for the
purpose hereof.
(e) Escrow Agent shall have no duties or responsibilities except
those set forth herein, which the parties hereto agree are ministerial in
nature. Seller and Purchaser acknowledge that Escrow Agent shall have no
liability of any kind whatsoever arising out of or in connection with its
activity as Escrow Agent. Seller and Purchaser jointly and severally agree to
and do hereby indemnify and hold harmless Escrow Agent from all loss, cost,
claim, damage, liability, and expense (including, without limitation, attorney's
fees and disbursements whether paid to retained attorneys or representing the
fair value of legal services rendered to itself) which may be incurred by reason
of its acting as Escrow Agent provided the same is not the result of Escrow
Agent's willful default, misconduct or gross negligence.
(f) Any Notice of Objection, demand or other notice or
communication which may or must be sent, given or made under this Escrow
Agreement to or by Escrow Agent shall be sent in accordance with the provisions
of the Agreement
(g) Simultaneously with their execution and delivery of this
Agreement, Purchaser and Seller shall furnish Escrow Agent with their true
Federal Taxpayer Identification Numbers so that Escrow Agent may file
appropriate income tax information returns with respect to any interest in the
Fund or other income from the Approved Investment. The party ultimately entitled
to any accrued interest in the Fund shall be the party responsible for the
payment of any tax due thereon.
(h) Any amendment of the Agreement which could alter or otherwise
affect Escrow Agent's obligations hereunder will not be effective against or
binding upon Escrow Agent without Escrow Agent's prior consent, which consent
may not be unreasonably withheld.
B-3
2. Upon delivery of the Fund in accordance with the terms of this
Agreement, Escrow Agent shall be relieved of all liability hereunder and with
respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the
party entitled to receive the same, by (i) a good, unendorsed check of Escrow
Agent payable to the order of such party, (ii) an unendorsed official bank or
cashier's check payable to the order of such party, or (iii) a bank wire
transfer of immediately available funds to an account designated by such party.
3. Capitalized Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Contract.
Notwithstanding the foregoing, it is expressly understood and agreed by the
parties hereto that all references to the Contract are for the convenience of
the parties hereto and that Escrow Agent shall have no obligation or duties with
respect thereto.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
5. Successors. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto;
provided, however, that this Agreement may not be assigned by any party without
the prior written consent of the other parties hereto, which consent may be
withheld for any or no reason.
6. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
7. Amendments. No amendment, modification, termination, cancellation,
recision or supersession to this Agreement shall be effective unless it shall be
in writing and signed by each of the parties hereto.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which,
taken together, shall be considered one and the same agreement.
9. Severability. If any provision of this Agreement or the application
of any such provision to any person or circumstance shall be, held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
B-4
IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement as of the date and year first above written.
ACADIA REALTY LIMITED PARTNERSHIP, Seller
By: Acadia Realty Trust, General Partner
By: ____________________________________________
_____________________________, Trustee
XXXX NORTHWOOD ASSOCIATES LIMITED
PARTNERSHIP, Seller
By: Xxxx Northwood Realty, Inc., General Partner
By:_______________________________________
Xxxxxxx X. Xxxxxxxxx, President
URBANAMERICA, L.P., Purchaser
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
ESCROW AGENT:
(m) XXXXXXXXX XXXXXXX XXXXX XXXXXX
(n)
(o) By: _______________________________
B-5
EXHIBIT "C"
PERMITTED ENCUMBRANCES
Purchaser shall take title to the Premises subject to:
1. Final Judgment upon Stipulation in Case No. 67-82 creating right of way
and drainage easement, recorded April 21, 1967 in Official Records Book
264, Page 477.
2. Easement for purpose of placing and maintaining pay station phone booths
in favor of Southeastern Telephone Company, recorded in Official Records
Book 392, Page 616. (AFFECTS PARCELS 1 AND 2)
3. Thirty (30) foot easement from Xxxx X. Xxxxxxx to Xxxxx-Xxxxxxx,
Incorporated contained in Deed dated December 1, 1977 and recorded
December 2, 1977 in Official Records Book 883, Page 954.
4. Easement in favor of City of Tallahassee by instrument recorded in
Official Records Book 965, Page 2172.
5. Easement in favor of City of Tallahassee by instrument recorded in
Official Records Book 965, Page 2180.
6. Slope Easement Agreement in favor of General Xxxxx Restaurant Group, Inc.,
recorded in Official Records Book 1043, Page 556.
7. Drainage Easement in favor of City of Tallahassee, recorded in Official
Records Book 1344, Page 741.
8. Drainage Easement in favor of City of Tallahassee, recorded in Official
Records Book 1384, Page 1242.
9. Right of Way Easement in favor of City of Tallahassee, recorded in
Official Records Book 1384, Page 1258.
10. Traffic Maintenance and Control Easement in favor of City of Tallahassee,
recorded in Official Records Book 1384, Page 1265.
11. Easement in favor of City of Tallahassee, recorded in Official Records
Book 1154, Page 341.
12. Terms and Conditions of existing recorded and un-recorded Leases that are
listed on Exhibit D and all rights thereunder of the Lessee(s) and any
person claiming by, through or under the Lessee(s).
C-1
13. Thirty foot (30') easement set forth in that Warranty Deed, recorded in
Official Records Book 1091, Page 2291. (AS TO PARCEL 4)
14. Twelve and a half foot (12.5') drainage easement set forth in that
Warranty Deed, recorded in Official Records Book 883, page 941. (AS TO
PARCEL 4)
15. Assignment of Leases and Rents by and between Xxxx Northwood Associates,
Limited Partnership (Assignor) and Nomura Asset Capital Corporation
(Assignee) dated March 4, 1997 and recorded March 5, 1997 in Official
Records Book 1989, Page 2086.
16. Leasehold Mortgage from Xxxx Northwood Associates, Limited Partnership, to
Nomura Capital Asset Corporation, given to secure the original principal
sum of $23,000,000.00, joined by Xxxx Centers Limited Partnership ("fee
owner") for the purpose of and subordinating the fee simple title to the
lien, encumbrance and effect of the mortgage as if said fee owner executed
and delivered the mortgage to the mortgagee; said mortgage having been
dated March 4, 1997, and recorded on March 5, 1997 in Official Records
Book 1989, at Page 2016, of the Public Records of Xxxx County, Florida.
17. Assignment of Management Agreement and Agreements Affecting Real Estate by
and between Xxxx Northwood Associates, Limited Partnership (Assignor) and
Nomura Asset Capital Corporation (Assignee), dated March 4, 1997 and
recorded March 5, 1997 in Official Records Book 1989, Page 2105.
18. Manager's Consent and Subordination of Management Agreement by and between
Xxxx Northwood Associates, Limited Partnership (Borrower), Xxxx Centers
Limited Partnership (Manager), and Nomura Asset Capital Corporation
(Lender), dated March 4, 1997 and recorded March 5, 1997 in Official
Records Book 1989, Page 2121.
19. UCC-1 Financing Statement by and between Xxxx Northwood Associates,
Limited Partnership (Debtor) and Nomura Asset Capital Corporation (Secured
Party), recorded March 5, 1997 in Official Records Book 1989, Page 2166.
20. UCC-1 Financing Statement by and between Xxxx Northwood Associates,
Limited Partnership d/b/a Northwood Mall (Debtor) and Nomura Asset Capital
Corporation (Secured Party), recorded March 5, 1997 in Official Records
Book 1989, Page 2185.
C-2
21. Present and future zoning laws, ordinances, resolutions, orders and
regulations of all municipal, county, state or federal governments having
jurisdiction over the Premises and the use of improvements thereof,
provided that they do not restrict the continued use, or affect the
maintenance, of the Premises.
22. Such state of facts as shown on that survey dated January 29, 1993, and
most recently revised and recertified on January 29, 1997, by Broward
Xxxxx & Associates, Inc.
C-3
EXHIBIT "D"
LEASES
(see attached Rent Roll)
D-1
EXHIBIT "E"
ACTIONS, SUITS, PROCEEDINGS OR INVESTIGATIONS
None.
E-1
EXHIBIT "F"
FREE RENT, CONCESSIONS, ALLOWANCES,
REBATES AND REFUNDS
None.
F-1
EXHIBIT "G"
SPECIAL WARRANTY DEED
Acadia Realty Limited Partnership, a Delaware limited partnership
("GRANTOR"), in consideration of Ten and 00/100th Dollars ($10.00) and other
valuable consideration, received from UrbanAmerica, L.P., a Delaware limited
partnership ("GRANTEE"), the receipt and sufficiency whereof are hereby
acknowledged, grants, bargains, sells, and conveys to GRANTEE the following
described real estate:
See Exhibit "A" attached hereto and incorporated herein
The above described real estate is conveyed by GRANTOR and accepted by GRANTEE.
GRANTOR covenants with GRANTEE that GRANTOR:
(1) is lawfully seized of such real estate and that it is free from
encumbrances except as set forth on Exhibit "B " attached hereto;
(2) has legal power and lawful authority to convey the same;
(3) warrants and will forever defend title to the real estate against
the lawful claims of all persons claiming the same or any part thereof through,
by or under Grantor.
Executed ________________________, 2000.
Acadia Realty Limited Partnership, Grantor
By: Acadia Realty Trust, General Partner
By:
-------------------------------------
Xxxxxxx X. Xxxxxxxxx, President
STATE OF ___________ )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me on
_________________, 2000 by _____________ , ______________ of Acadia Realty
Trust, which is the general partner of Acadia Realty Limited Partnership, a
Delaware limited partnership, on behalf of said partnership.
---------------------------
Notary Public
My commission expires: _________________
G-1
EXHIBIT "H"
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS, dated
__________, 2000, between Acadia Realty Limited Partnership, a Delaware limited
partnership, and Xxxx Northwood Associates Limited Partnership, a Florida
limited partnership, both having an office at 00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000 (collectively herein, the "Assignor"), and,
UrbanAmerica, L.P., a Delaware limited partnership having an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has this day sold and conveyed to Assignee the real
property more particularly described in Schedule "1" annexed hereto and made a
part hereof (the "Premises").
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration paid by Assignee to Assignor, the receipt
and sufficiency of which are hereby acknowledged, Assignor hereby assigns,
transfers and conveys to Assignee all of Assignor's right, title and interest as
landlord in and to (i) the leases, licenses and other occupancy agreements
affecting the Premises and all guarantees thereof set forth on Schedule "2"
annexed hereto and made a part hereof (collectively, the "Leases"); (ii) the
security deposits made under the Schedule "3" annexed hereto and made a part
hereof (collectively, the "Security Deposits"); and any and all guarantees
thereof.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
forever, from and after the date hereof, subject to the terms covenants,
conditions and provisions of the Leases.
ASSIGNEE HEREBY ACCEPTS the foregoing assignment, acknowledges receipt
of the Security Deposits, assumes and agrees to perform all of the obligations
of Assignor under the Leases, accruing from and after the date hereof; and
agrees to hold or apply all of the Security Deposits in accordance with terms of
the Leases under which the Security Deposits were made; and
ASSIGNEE FURTHER AGREES to defend and indemnify assignor and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated with
Assignor and any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner or principal of any such parent, subsidiary or other
affiliate (collectively, "Assignor's Affiliates") against, and to hold Assignor
and Assignor's Affiliates harmless from, any and all claims, demands, causes of
action, losses, damages, liabilities, and costs and expenses (including, without
limitation, attorney's fees and disbursements), whether foreseen or unforeseen,
asserted against or incurred by Assignor or any of Assignor's Affiliates in
connection with or arising out of acts or omissions of Assignee or its
H-1
directors, officers, employees, affiliates, partners, brokers, agents,
contractors, consultants and/or representatives, or other matters or occurrences
that take place, from and after the date hereof relating to the Leases and
Security Deposits.
ASSIGNOR FURTHER AGREES to defend and indemnify assignee and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated with
Assignee and any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner or principal of any such parent, subsidiary or other
affiliate (collectively, "Assignee's Affiliates") against, and to hold Assignee
and Assignee's Affiliates harmless from, any and all claims, demands, causes of
action, losses, damages, liabilities, and costs and expenses (including, without
limitation, attorney's fees and disbursements), whether foreseen or unforeseen,
asserted against or incurred by Assignee or any of Assignee's Affiliates in
connection with or arising out of acts or omissions of Assignor or its
directors, officers, employees, affiliates, partners, brokers, agents,
contractors, consultants and/or representatives, or other matters or occurrences
that take place, prior to the date hereof relating to the Leases and Security
Deposits.
This Assignment and Assumption of Leases and Security Deposits is made
without any covenant, warranty or representation by, or recourse against,
Assignor or Assignor's Affiliates of any kind whatsoever, except as set forth in
that certain Sale-Purchase Agreement between Acadia Realty Limited Partnership
and Xxxx Northwood Associates Limited Partnership, as Seller and
H-2
UrbanAmerica, L.P., as Purchaser, dated as of June ___, 2000.
IN WITNESS WHEREOF, this Assignment and Assumption of Leases and
Security Deposits has been executed on the date and year first above written.
ASSIGNOR:
Acadia Realty Limited Partnership
By: Acadia Realty Trust, General Partner
By: ___________________________________
________________ , Trustee
Xxxx Northwood Associates Limited Partneship
By: Xxxx Northwood Realty, Inc.,
General Partner
By: ______________________________
Xxxxxxx X. Xxxxxxxxx, President
ASSIGNEE:
UrbanAmerica, L.P., a Delaware limited partnership
By: ___________________________________
Name: _________________________________
Title: ________________________________
H-3
EXHIBIT "I"
ASSIGNMENT AND ASSUMPTION
OF CONTRACTS AND LICENSES
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND LICENSES, dated __________,
2000, between Acadia Realty Limited Partnership, a Delaware limited partnership,
and Xxxx Northwood Associates Limited Partnership, a Florida limited
partnership, both having an office at 00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxx Xxxx 00000 (collectively, the "Assignor"), and UrbanAmerica, L.P., a
Delaware limited partnership, having an office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has this day sold and conveyed to assignee the real
property more particularly described in Schedule "1" annexed hereto and made a
part hereof (the "Premises").
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration paid by Assignee to Assignor, the receipt
and sufficiency of which are hereby acknowledged, Assignor hereby assigns,
transfers and conveys to Assignee all of Assignor's right, title and interest in
and to (i) all of the licenses, permits, certificates, approvals, authorizations
and variances issued for or with respect to the Premises by any governmental
authority set forth on Schedule "2" annexed hereto and made a part hereof
(collectively, the "Licenses") and (ii) all purchase orders, equipment leases,
advertising agreements, franchise agreements, license agreements, management
agreements, leasing and brokerage agreements and other service contracts
relating to the operation of the Premises set forth on Schedule "3" annexed
hereto and made a part hereof (collectively, the "Contracts").
TO HAVE AND TO HOLD the same unto Assignee, is successors and assigns,
forever, from and after the date hereof, subject to the terms, covenants,
conditions and provisions of the Licenses and the Contracts.
ASSIGNEE HEREBY ACCEPTS the foregoing assignment and assumes and agrees
to perform all of the obligations of Assignor under the Licenses and the
Contracts accruing from and after the date hereof; and
ASSIGNEE FURTHER AGREES to defend and indemnify Assignor and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated with
Assignor and any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner or principal of any such parent, subsidiary or other
affiliate (collectively, "Assignor's Affiliates") against, and to hold Assignor
and Assignor's Affiliates harmless from, any and all claims, demands, causes of
action, losses,
I-1
damages, liabilities, and costs and expenses (including, without limitation,
attorney's fees and disbursements), whether foreseen or unforeseen, asserted
against or incurred by Assignor or any of Assignor's Affiliates in connection
with or arising out of acts or omissions of Assignee or its directors, officers,
employees, affiliates, partners, brokers, agents, contractors, consultants
and/or representatives, or other matters or occurrences that take place, from
and after the date hereof relating to the Licenses and the Contracts.
ASSIGNOR FURTHER AGREES to defend and indemnify Assignee and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated with
Assignee and any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner or principal of any such parent, subsidiary or other
affiliate (collectively, "Assignee's Affiliates") against, and to hold Assignee
and Assignee's Affiliates harmless from, any and all claims, demands, causes of
action, losses, damages, liabilities, and costs and expenses (including, without
limitation, attorney's fees and disbursements), whether foreseen or unforeseen,
asserted against or incurred by Assignee or any of Assignee's Affiliates in
connection with or arising out of acts or omissions of Assignor or its
directors, officers, employees, affiliates, partners, brokers, agents,
contractors, consultants and/or representatives, or other matters or occurrences
that take place prior to the date hereof relating to the Licenses and the
Contracts.
This Assignment and Assumption of Contracts and Licenses is made
without any covenant, warranty or representation by, or recourse against,
Assignor or Assignor's Affiliates of any kind whatsoever, except as set forth in
that certain Sale-Purchase Agreement between Acadia Realty Limited Partnership
and Xxxx Northwood Associates Limited Partnership, as Seller and
I-2
UrbanAmerica, L.P., as Purchaser, dated as of June ___, 2000.
IN WITNESS WHEREOF, this Assignment and Assumption of Contracts and
Licenses has been executed on the date and year first above written.
ASSIGNOR:
Acadia Realty Limited Partnership
By: Acadia Realty Trust, General Partner
By: ___________________________________
________________ , Trustee
Xxxx Northwood Associates Limited Partneship
By: Xxxx Northwood Realty, Inc.,
General Partner
By: ______________________________
Xxxxxxx X. Xxxxxxxxx, President
ASSIGNEE:
UrbanAmerica, L.P., a Delaware limited partnership
By: ___________________________________
Name: _________________________________
Title: ________________________________
I-3
EXHIBIT "J"
CONTRACTS
1. Service Contract between Seller and United States Service Industries for the
performance of janitorial services, dated December 1, 1999.
2. Agreement between Seller and May Day Outdoor Services, Inc., for the
performance of horticultural services dated February 14, 1999.
3. Service Contract between Seller and Southwest Security, for the performance
of security services, dated September 1, 1999.
4. Service Agreement between Seller and Southern Message Centers dated July 5,
1994.
5. Contract between Seller and Liebert Global Services, dated June 16, 1998.
6. Service Agreement between Seller and Quality Sound, Inc., dated April 7,
1994.
7. Battery Maintenance Agreement between Seller and Stationary Power Services
dated May 20, 1998.
8. Fire Alarm Testing and Inspection Service Agreement between Seller and
Siemens Building Technologies, Inc. dated August 19, 1999.
9. Contract between Seller and May Day Outdoor Services, Inc. dated April 5,
1999.
10. Contract between Seller and May Day Outdoor Services, Inc. dated July 31,
1998.
11. Service Contract between Seller and Xxxxxxxx Fire Protection Systems Company
dated September 1, 1999.
J-1
EXHIBIT "K"
INTANGIBLE PROPERTY
1. The trade name "Northwood Center".
K-1
EXHIBIT "L"
NOTICE TO TENANTS
[JOINT LETTERHEAD OF SELLER AND PURCHASER]
____________, 2000
[Tenant's Name and Address]
__________________________
__________________________
__________________________
Re: [Building Address]
__________________
__________________
(the "Building")
Gentlemen:
With reference to your lease of space in the ____________ Building,
please be advised that Acadia Realty Limited Partnership and Xxxx Northwood
Associates Limited Partnership have this day sold, transferred and assigned the
Building and your lease to UrbanAmerica, L.P. ("Purchaser").
[Insert the following if there is a security deposit being transferred:
Please be further advised that the security deposit under your lease and the
accrued interest thereon, if any, have been turned over to the Purchaser, whose
address is 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10004.]
Finally, until you receive further notice form Purchaser, all rent
checks and other payments under your lease should henceforth be made payable to
[, the managing agent for the Building or as otherwise required by the Loan
Documents,] and mailed or delivered to their office at
__________________________________, and all notices to the landlord under your
lease should also be addressed to the Purchaser at the foregoing address.
SELLER:
Acadia Realty Limited Partnership
By: Acadia Realty Trust, General Partner
By: _______________________________
Xxxxxxx X. Xxxxxxxxx, President
L-1
Xxxx Northwood Associates Limited Partnership
By: Xxxx Northwood Realty, Inc.,
General Partner
By: ______________________________
Xxxxxxx X. Xxxxxxxxx, President
PURCHASER:
UrbanAmerica, L.P., a Delaware limited partnership
By: ___________________________________
Name: _________________________________
Title: ________________________________
[REMINDER: This notice should be mailed or otherwise
sent in the manner required by each tenant's
lease and any applicable local law.]
L-2
EXHIBIT "M"
NON-FOREIGN AFFIDAVIT UNDER
INTERNAL REVENUE CODE
SECTION 1445(b)(2)
STATE OF ________________ )
) ss:
COUNTY OF ________________ )
_________________________ being first duly sworn deposes and states
under penalty of perjury:
1. That he/she is the _________________of Acadia Realty Limited
Partnership, the transferor of the property located at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000 and known as Northwood
Centre.
2. That the transferor's office address is 00 Xxxxxxxxx Xxxxxxxxxxx,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000.
3. That the United States taxpayer identification number for the
transferor is ________________________.
4. That the transferor is not a "foreign person" as that term is
defined in Section 1445(f) of the United States Internal Revenue
Code of 1986, as amended (the "Code").
This affidavit is given to UrbanAmerica, L.P., the transferee of the
property described in paragraph 1 above., for the purpose of establishing and
documenting the nonforeign affidavit exemption to the withholding requirement of
Section 1445 of the Code. The transferor understands that this affidavit may be
disclosed to the Internal Revenue Service by the transferee and that any false
statement contained herein could be punished by fine, imprisonment, or both.
Acadia Realty Limited Partnership
By: Acadia Realty Trust, General Partner
By: ________________________________
Xxxxxxx X. Xxxxxxxxx, President
Subscribed and sworn to before me this _____ day of ___________, 2000.
___________________________
Notary Public
M-1
EXHIBIT "N"
MAJOR TENANTS
1. DPR (790-0070): Lease of 123,387 square feet to DPR (790-0070) commencing on
May 1, 1999.
2. Florida Department of Health: Lease of 59,150 square feet to the Florida
Department of Health commencing on May 1, 1999.
3. Xxxx Xxxxxx Corporation: Lease of 9.750 square feet to Xxxx Xxxxxx
Corporation commencing on August 22, 1998.
4. DCF #590:2664: Lease of 9,855 square feet to DCF #590:2664 commencing on
November 21, 1997.
5. DCF #590:2348: Lease of 14,331 square feet to DCF #590:2348 commencing on
April 16, 1993.
6. DCF #590:2523: Lease of 19,984 square feet to DCF #590:2523 commencing on
March 26, 1995.
7. DCF #590:2570: Lease of 15,368 square feet to DCF #590:2570 commencing on
May 1, 1995.
8. DCF #590L1998: Lease of 119,054 square feet to DCF #590L1998 commencing on
August 1, 1989.
9. DOR #730:0209: Lease of 5,913 square feet to DOR #730:0209 commencing on May
15, 1997.
10. Florida Department of Revenue: Lease of 7,948 square feet to the Florida
Department of Revenue commencing on July 1, 1994.
11. Hooter's of America, Inc.: Lease of 4,500 square feet to Hooter's of
America, Inc. commencing on September 26, 1989.
12. Publix Supermarket: Lease of 51,950 square feet to Publix Supermarket
commencing on June 1, 1985.
13. Florida Department of Health: Lease of 6,635 square feet to the Florida
Department of Health commencing on November 1, 1998.
*Note: The above-listed tenants are only considered to be "Major Tenants" with
respect to the Leases referred to on this Schedule 11.
N-1
EXHIBIT "O"
FORM OF
TENANT ESTOPPEL CERTIFICATE,
__________, 2000
To: UrbanAmerica, L.P.
_________________________________________
_________________________________________ ("Purchaser")
Re: Lease dated ____________ (the "Lease") between ______________________
as landlord ("Landlord"), and ________________________________ as
tenant ("Tenant"), regarding certain space described in the Lease
located in the building known as ____________________ (the "Premises").
Ladies/Gentlemen:
At the request of Landlord, and knowing that you are relying on the
accuracy of the information contained herein, the undersigned hereby certifies
that, to the undersigned's knowledge:
I. Tenant is the tenant under the Lease covering the Premises.
II. Tenant is in full and complete possession of the Premises, such
possession having been delivered by Landlord, or its predecessor in title,
pursuant to the Lease and having been accepted by Tenant. If the landlord named
in the Lease is other than Landlord, Tenant recognizes Landlord as the landlord
under the Lease.
III. The improvements and space required to be furnished by the terms
of the Lease have been completed in all respects and to the satisfaction of
Tenant, and are open for the use of Tenant, its employees, patients (or
customers) and invitees.
IV. All duties of an inducement nature required of Landlord in the
Lease have been fulfilled.
V. The Lease is in full force and effect; and has not been modified or,
if the Lease has been modified, the following is a list of all modifications to
the Lease and, as modified, the Lease is in full force and effect (if there are
no modifications, please state "none"):
______________________________________________________________________________;
VI. The rent and all other amounts payable by Tenant under the Lease
have been paid through __________________; no rent or other amounts payable by
Tenant have been prepaid more than thirty (30) days in advance of the due date,
except as provided by the Lease; and Tenant has not asserted, and has no
knowledge of, any claim against Landlord under the Lease that might be set-or
credited against future accruing rents;
O-1
VII. The undersigned has not given Landlord any written notice claiming
that Landlord is in default under the Lease, which default remains uncured.
Tenant has not received from Landlord any written notice claiming that Tenant is
in default under the Lease other than the following (if none, please state
"none"):
_____________________________________________________________________________;
VIII. The term of the lease commenced on __________, The termination
date of the present term of the Lease, excluding renewals, is __________;
IX. The address for notices to be sent to Tenant under the Lease is as
follows:
_____________________________________________________________________________;
X. There are no actions, whether voluntary or otherwise, pending
against Tenant under the bankruptcy laws of the United States or any state
thereof.
This letter is being furnished to Purchaser in connection with its
acquisition of the Premises and may be relied upon by Purchaser, Landlord,
Purchaser's lender and any assignee of Purchaser, if any, in connection with any
loan Purchaser may obtain with respect to the Premises, and by their respective
successors and assigns.
Very truly yours,
TENANT
[__________________________________]
By: _______________________________
Name:
Title:
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EXHIBIT "P"
INSURANCE POLICIES
Coverage Amount of Insurance Deductibles
Blanket Building & Personal Property Business
Interruption $592,581,084 $ 5,000
Extra Expense $ 5,000,000 $ 5,000
Special Form Including Theft
Valuation: Agreed Amount/Replacement
Flood $ 50,000,000 $25,000
Demolition/Increased Cost of Construction $ 10,000,000 $ 5,000
Earthquake $ 50,000,000 $25,000
P-1
EXHIBIT "Q"
COLLECTION ACCOUNT; REIMBURSEMENT AMOUNT ADJUSTMENT
A. [List account amounts]
B. The Reimbursement Amount shall be adjusted as follows:
1. In the event the amount in the Accounts is greater than
$3,250,000.00, then the Reimbursement Amount shall be increased by 40%
of the difference between the amount in the Accounts and $3,250,000.00.
2. In the event the amount in the Accounts is less than $3,250,000.00,
then the Reimbursement Amount shall be decreased by 40% of the
difference between $3,250,000.00 and the amount in the Accounts.
Q-1
