REAL ESTATE SALE AGREEMENT
FOR SIX COMMERCIAL RETAIL PROPERTIES LOCATED IN
ANDERSON, CALIFORNIA, known as PRIME OUTLETS AT ANDERSON
CALHOUN, GEORGIA, known as PRIME OUTLETS AT XXXXXXX,
GAFFNEY, SOUTH CAROLINA, known as PRIME OUTLETS AT GAFFNEY,
LATHAM, NEW YORK, known as PRIME OUTLETS AT LATHAM,
LEE, MASSACHUSETTS, known as PRIME OUTLETS AT LEE, and
LODI, OHIO, known as PRIME OUTLETS AT LODI,
BY AND BETWEEN
SHASTA OUTLET CENTER LIMITED PARTNERSHIP, a Delaware limited partnership
(doing business in California as Anderson Outlet Center Limited Partnership)
THE PRIME OUTLETS AT CALHOUN LIMITED PARTNERSHIP, a Delaware limited
partnership,
CAROLINA FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware limited partnership
LATHAM FACTORY STORES LIMITED PARTNERSHIP, a Delaware limited partnership
THE PRIME OUTLETS AT XXX LIMITED PARTNERSHIP, a Delaware limited partnership,
PRIME XXX DEVELOPMENT LIMITED PARTNERSHIP, a Delaware limited partnership
BUCKEYE FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware limited partnership,
COLLECTIVELY, AS SELLERS
AND
PWG CAPITAL, LLC,
a Delaware limited liability company,
AS PURCHASER
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT ("Agreement") is made and entered into as
of the 9th day of January, 2002 (the "Effective Date"), by and between Shasta
Outlet Center Limited Partnership, a Delaware limited partnership doing business
in the State of California as Anderson Outlet Center Limited Partnership (the
"Anderson Seller"), The Prime Outlets at Calhoun Limited Partnership, a Delaware
limited partnership, (the "Calhoun Seller"), Carolina Factory Shops Limited
Partnership, a Delaware limited partnership(the "Gaffney Seller"), Latham
Factory Stores Limited Partnership, a Delaware limited partnership (the "Xxxxxx
Seller"), The Prime Outlets at Xxx Limited Partnership, and Prime Xxx
Development Limited Partnership, both Delaware limited partnerships, (together,
the "Xxx Seller") and Buckeye Factory Shops Limited Partnership, a Delaware
limited partnership, "Lodi Seller") (the Xxxxxxxx Seller, the Calhoun Seller,
the Gaffney Seller, the Xxxxxx Seller, the Xxx Seller and the Lodi Seller are
collectively referred to herein as "Seller") and PWG Capital, LLC, a Delaware
limited liability company (the "Purchaser").
RECITALS:
A. The Xxxxxxxx Seller owns legal title in fee simple real property
consisting of approximately 18.9 acres of land legally described in Exhibit A-1
hereto (the "Anderson Site") located at 0000 Xxxxx Xxxxxxx 000 in the City of
Xxxxxxxx, County of Shasta, State of California.
B. The Calhoun Seller owns legal title in fee simple real property
consisting of approximately 37.8 acres of land legally described in Exhibit A-2
(the "Calhoun Site") located at 000 Xxxxxx Xxxx (Interstate 75 and Route 53) in
the City of Xxxxxxx, County of Xxxxxx, State of Georgia.
C. The Gaffney Seller is the ground lessee under that certain Lease
Agreement dated December 19, 1996 by and between Cherokee County, South
Carolina, as ground lessor, and Gaffney Seller, as ground lessee, as amended by
First Amendment to that Certain Lease Agreement between Cherokee County, South
Carolina and Carolina Factory Shops Limited Partnership dated December 19, 1996
(as amended, the "Gaffney Ground Lease"), which pertains to real property
consisting of approximately 53.3 acres of land legally described in Exhibit A-3
(the "Gaffney Site") located at Interstate 85 and Xxxxx 000 xx xxx Xxxx xx
Xxxxxxx, Xxxxxx of Cherokee, State of South Carolina.
D. The Xxxxxx Seller owns legal title in fee simple real property
consisting of approximately 6 acres of land legally described in Exhibit A-4
(the "Latham Site") located at 000 Xxx Xxxxxxx Xxxx in the Town of Latham,
County of Albany, State of New York.
E. The Xxx Seller owns legal title in fee simple real property consisting
of approximately 218 acres of land legally described in Exhibit A-5 (the "Xxx
Site") located at 00 Xxxxx Xxxxxx in the City of Xxx, County of Berkshire, State
of Massachusetts.
F. The Lodi Seller owns legal title in fee simple real property consisting
of approximately 48.17 acres of land legally described in Exhibit A-6 (the "Lodi
Site") located at Interstate 71 and State Route 83 in the City of Lodi, County
of Xxxxxx, State of Ohio.
G. Seller is interested in selling, and Purchaser is interested in
purchasing, the Xxxxxxxx Site, the Calhoun Site, the Xxxxxx Site, the Xxx Site,
the Lodi Site and the Gaffney Seller's ground lease interest in the Gaffney Site
(each of which, a "Site") in accordance with and subject to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties set forth in this Agreement, and for other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Sale and Purchase. Subject to the terms and provisions of this
Agreement, Seller agrees to sell, convey, and assign unto Purchaser, and
Purchaser agrees to purchase from Seller all of the Xxxxxxxx Site, the Calhoun
Site, the Xxxxxx Site, the Xxx Site and the Lodi Site, each of the foregoing in
fee simple, as well as Gaffney Seller's ground lease interest in the Gaffney
Site (collectively, the "Land"), together with all rights, privileges,
easements, tenements, hereditaments, rights of way and appurtenances which
belong or appertain to the Land, including, without limitation, Seller's rights
(if any) to all minerals, oil, gas and other hydrocarbon substances on and under
the Land, as well as all development rights, air rights, water, water rights and
water stock, if any, relating to the Land (collectively, the "Appurtenances"),
and all tangible and intangible property located at the Land and owned or held
by Seller in connection with the Land or with the use thereof, including,
without limitation, permits, authorizations, approvals, maps, surveys, plans,
leases, licenses, rental contracts and agreements (collectively, the "Personal
Property"). The Land and Appurtenances are hereinafter collectively referred to
as the "Real Property". The Real Property and the Personal Property are
hereinafter collectively referred to as the "Property".
2. Purchase Price: Xxxxxxx Money
A. Total Purchase Price. The price to be paid for the Property (the
"Purchase Price") is One Hundred Twenty Million Two Hundred Fifty Thousand and
No/ 100 Dollars ($120,250,000.00) payable at Closing (as defined herein) in cash
or wired funds, subject to adjustments and prorations. For purposes of transfer
taxes, sales taxes and title insurance only, the Purchase Price shall be
allocated among the Xxxxxxxx Site, the Calhoun Site, the Gaffney Site, the
Xxxxxx Site, the Xxx Site and the Lodi Site in the manner set forth on Exhibit
X.
X. Xxxxxxx Money. Within five (5) days after the Effective Date of this
Agreement, Purchaser shall deposit the sum of One Million and 00/100 Dollars
($1,000,000.00) (including any interest earned and accrued, the "Xxxxxxx
Money"), in immediately available funds, into an escrow (the "Xxxxxxx Money
Escrow") established with the National Business Unit of Chicago Title Insurance
Company located in Washington, D.C. (the "Escrow Holder"), in accordance with
the escrow agreement (the "Escrow Agreement") substantially in the form attached
hereto as Exhibit C. In addition, provided that this Agreement has not been
terminated on or before the conclusion of the Feasibility Period (defined
below), Purchaser shall deposit an additional Five Hundred Thousand and No/100
Dollars ($500,000.00) with the Escrow Holder no later than three (3) business
days after the expiration of the Feasibility Period (hereinafter defined),
which, once deposited, shall also constitute Xxxxxxx Money for purposes hereof.
All sums delivered to the Escrow Holder as Xxxxxxx Money shall be invested in a
money market fund or in such other investment instrument or account designated
by Purchaser and reasonably approved by Seller, and as more specifically
addressed in the Escrow Agreement. At the Closing, the Xxxxxxx Money shall be
applied to the Purchase Price. If the Xxxxxxx Money is returned to Purchaser
pursuant to Section 3(C) or applied against the Purchase Price pursuant to
Section 16, all interest earned on the Xxxxxxx Money shall be deemed to be
income of Purchaser.
3. Feasibility Period.
A. This Agreement shall be contingent upon Purchaser's satisfaction with
the Property and the condition thereof and its suitability for Purchaser's
intended use, as well as Purchaser's ability to finance the Property, as
determined in Purchaser's sole and absolute discretion and judgment during the
period commencing on the Effective Date and ending upon the later of (i)
thirty-five days after the Effective Date or (ii) the date which is five (5)
days after Seller shall have delivered to Purchaser Tenant Estoppels (as
hereinafter defined) in compliance with the requirements of Section 8(E) hereof
from Tenants representing at least fifty percent (50%) of the aggregate leased
and occupied leasable area located in the Property, as defined in Section 8(E)
hereof (the "Feasibility Period").
B. During the Feasibility Period, Purchaser shall have the right to obtain
appraisals and physically inspect the condition of the Property and to conduct
various studies and tests with respect to the Property that Purchaser, in its
sole discretion, deems desirable, including, but not limited to, financing
availability, economic feasibility studies, entitlement reviews and
investigations, title and survey reviews, drainage and wetlands reviews and
investigations, soil tests, engineering and structural tests and inspections,
other physical site inspections, environmental and hazardous and toxic waste
tests, and hydrology tests, as well as any other tests, studies or
investigations it desires, but subject to the following:
(1) Purchaser shall notify Seller not less than forty-eight (48) hours in
advance of any entry, inspection, or test on the Property, and permit
Seller to accompany Purchaser on any such entry, inspection, or test.
(2) Purchaser shall promptly after completion of any entry, inspection or test,
restore the Property, at its sole cost, to the condition which existed
immediately prior thereto.
(3) Purchaser assumes any risk of damage or destruction to property or injury
to persons resulting from its surveys, studies, tests, engineering,
structural and other investigations and environmental assessments of the
Property , and agrees to defend, indemnify and save Seller harmless from
and against all claims or demands, liabilities, costs, losses, damages,
suits, proceedings and similar obligations (including without limitation,
reasonable attorneys fees and costs) incurred directly on account of any
loss, damage or injury to any person or property by reason of any act or
omission of Purchaser, its consultants, agents, contractors,
representatives and employees in conducting such surveys, studies, tests,
investigations and assessments.
(4) Purchaser agrees that if the need arises to notify under applicable laws
any federal, state or local public agencies of any conditions on the
Property, as a result of any findings in the environmental assessment or
any other test, investigation or study performed by or for Purchaser,
Purchaser shall immediately notify Seller and, to the extent consistent
with applicable law, Seller, not Purchaser, shall make such disclosure as
Seller deems appropriate. In no event shall this subsection require
Purchaser to violate any obligation, duty or requirement of applicable law,
and if Seller does not so notify such public agency in a timely manner
after such notice, Purchaser may do so if required.
(5) Purchaser shall take no action which would permit the imposition of a
mechanic's or material man's lien against the Property, and Purchaser, by
execution of this Agreement, hereby indemnifies and holds harmless Seller
from and against any and all liability, cost or expense (including
reasonable counsel fees and court costs) imposed upon or asserted against
Seller as a result of any activity on the Property by Purchaser, its
agents, representatives, contractors or employees.
C. At any time during the Feasibility Period, Purchaser, in Purchaser's
sole and absolute discretion, may, upon written notice to Seller, terminate this
Agreement, in which event, all of the rights, duties, and obligations of the
parties shall immediately terminate, and this Agreement shall be null, void and
of no further force or effect, except that any obligations of Purchaser under
this Section 3 or elsewhere in this Agreement to either restore the Property or
to indemnify and hold harmless Seller shall survive the termination of this
Agreement. If, in Purchaser's sole judgment and discretion, Purchaser decides
that it does not wish to proceed with the purchase, Purchaser may give Seller
written notice of such fact on or before the end of the Feasibility Period and
in accordance with the provisions of this Agreement. Upon termination prior to
the end of the Feasibility Period in accordance with the provisions of this
Agreement, the Escrow Holder shall immediately return the Xxxxxxx Money to
Purchaser.
D. The parties acknowledge that the six Sites shall be conveyed to
Purchaser as a single "all or nothing" transaction, and Purchaser shall have no
ability to terminate this Agreement as to a particular Site.
E. If Purchaser does not notify Seller in accordance with the provisions of
this Agreement, on or before the end of the Feasibility Period, of Purchaser's
election to proceed to Closing, this Agreement shall automatically terminate,
and the Xxxxxxx Money shall be refunded to Purchaser promptly following the
expiration of the Feasibility Period.
F. Seller shall cooperate reasonably with Purchaser and Purchaser's agents,
employees, and representatives in connection with Purchaser's inspections,
tests, surveys and studies of the Property, but shall not be obligated to incur
any costs or liability in connection therewith, except as expressly set forth to
the contrary in this Agreement.
G. Before entering onto the Property to conduct physical tests pursuant to
this Agreement, Purchaser or its testing agent shall provide to Seller a
certificate of insurance evidencing a policy of commercial general liability
insurance, in form and content satisfactory to Seller in its reasonable opinion,
naming Seller as an additional insured, insuring Purchaser against any liability
arising out of any injury to or death of any person, or damage to any property,
proximately caused by Purchaser, its agents, representatives, contractors or
employees. Such policy shall have limits of at least $500,000 as to personal
injury or death, and $2,000,000 as to property damage, and shall have deductible
amounts of no more than $10,000 for each occurrence.
4. Closing.
A. "Closing" Defined. The term "Closing" shall mean the date on which the
Property is conveyed to the Purchaser and the Purchaser makes payment of the
Purchase Price to Seller. For purposes hereof, the conveyance shall be made by:
(i) a grant deed substantially in the form attached hereto as Exhibit D-1 (the
"Anderson Deed") of the Anderson Site recorded in the Official Records of
Shasta County, California;
(ii) a limited warranty deed substantially in the form attached hereto as
Exhibit D-2 (the "Calhoun Deed") of the Calhoun Site recorded in the
Official Records of Xxxxxx County, Georgia;
(iii)an assignment of the Gaffney Seller's leasehold interest pursuant to the
Gaffney Ground Lease and quitclaim deed, substantially in the form attached
hereto as Exhibit D-3 (the "Gaffney Ground Lease Assignment") in the
Gaffney Site recorded in the Official Records of Cherokee County, South
Carolina;
(iv) a special warranty deed substantially in the form attached hereto as
Exhibit D-4 (the "Xxxxxx Deed") of the Xxxxxx Site recorded in the Official
Records of Albany County, New York;
(v) a special warranty deed substantially in the form attached hereto as
Exhibit D-5 (the "Lee Deed") of the Xxx Site recorded in the Official
Records of Berkshire County, Massachusetts;
(vi) a special warranty deed substantially in the form attached hereto as
Exhibit D-6 (the "Lodi Deed") of the Lodi Site recorded in the Official
Records of Xxxxxx County, Ohio (the Xxxxxxxx Deed, the Calhoun Deed, the
Gaffney Ground Lease Assignment, the Xxxxxx Deed, the Xxx Deed and the Lodi
Deed shall collectively be referred to herein as the "Deeds");
(vii)a xxxx of sale relating to all Personal Property substantially in the form
attached hereto as Exhibit E (the "Xxxx of Sale").
B. Closing Date. The Closing shall take place on a date mutually agreed
upon by the parties, which date shall be no later than thirty (30) days
following the conclusion of the Feasibility Period (the "Outside Closing Date").
Notwithstanding the foregoing, Purchaser shall have the right to extend the
Outside Closing Date for an additional thirty (30) days; provided, however, that
in order to extend the Outside Closing Date, Purchaser must give Seller written
notice of its intent to do so at least five (5) days prior to the original
Outside Closing Date. So long as Seller has posted with the Escrow Holder all
executed documents required by Section 16(A) hereof and has otherwise satisfied
its Closing requirements hereunder (except for the execution and delivery of a
closing statement, which the parties agree shall be agreed upon and executed
immediately prior to Closing) on or before the original Outside Closing Date,
Purchaser shall post additional Xxxxxxx Money in the amount of Five Hundred
Thousand and No/100 Dollars ($500,000.00) in addition to the Xxxxxxx Money in
the amount of One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) to be posted by Purchaser pursuant to Section 2(B) hereof, all
of which shall be non-refundable to Purchaser after the conclusion of the
Feasibility Period, except in the case of a Seller default hereunder or as
otherwise specifically set forth herein. If, at any time after the conclusion of
the Feasibility Period, Seller posts with the Escrow Holder all executed
documents required by Section 16(A) hereof and has otherwise satisfied its
Closing requirements hereunder (except for the execution and delivery of a
closing statement, which the parties agree shall be agreed upon and executed
immediately prior to Closing), all Xxxxxxx Money shall be delivered to Seller by
the Escrow Holder to be applied against the Purchase Price at Closing or to be
refunded to Purchaser if Seller fails to close hereunder.
5. Title Commitments and Policies; Surveys.
A. Title Commitments. Within twenty (20) days after the Effective Date,
Seller shall obtain an ALTA title commitment pertaining to each Site dated on or
after the Effective Date, which will subsequently be brought forward and dated
to the date of Closing, together with copies of documents of record and all
exceptions to title to the Property as indicated therein and a judgment search
and UCC search of each Seller (collectively the "Commitments"), prepared by the
National Business Unit of Chicago Title Insurance Company located in Washington,
D.C. (the "Title Company"). The Title Company shall also deliver to Purchaser a
copy of the Commitments. If requested by Purchaser, the Title Company shall
provide for reinsurance by another title insurer of a certain portion of the
Purchase Price, as mutually agreed by Seller, Purchaser and the Title Company.
(1) The "Permitted Title Exceptions" shall be defined as (a) matters set
forth in the Official Records that affect any Property to which Purchaser does
not object as provided below, but excluding any liens (other than a lien or
charge caused by Purchaser, its agents, representatives, contractors or
employees), (b) non-delinquent real estate taxes for the current tax year and
subsequent years, (c) zoning and other restrictions and prohibitions imposed by
governmental authorities, (d) rights of tenants under leases and occupancy
agreements, (e) the Gaffney Ground Lease, (f) matters of title related to those
certain Special Source Revenue Bonds issued by Cherokee County, South Carolina
(the "Gaffney Development Bonds"), (g) two life estates granted to certain
individuals who currently reside on a portion of the Xxx Site, (h) a utility
easement to be granted by Gaffney Seller or its ground lessor to Piedmont
Natural Gas, or any affiliate thereof, which easement will be granted after the
date of this Agreement but prior to Closing and which does not materially and
adversely affect the improvements located on the Gaffney Site, and (i) any other
title matter related to any particular Site set forth in the Commitments to
which Purchaser does not object within ten (10) business days of receipt of the
Commitment for such Site. Purchaser shall notify Seller in writing ("Purchaser's
Title Objection Notice") of any defects to title with respect to each Site
within ten (10) business days of Purchaser's receipt of the Commitment related
to such Site. Upon receipt of Purchaser's Title Objection Notice, Seller shall
undertake to remedy all defects by the following:
(i) If the Property or any part thereof shall be subject to any judgment,
mortgage or mechanics lien that is not a Permitted Title Exception, Seller shall
pay the same at or prior to Closing or make other arrangements reasonably
satisfactory to Purchaser to remove such lien as an exception to the Title
Policy.
(ii) If any other title defects shall exist on the Property, other than a
Permitted Title Exception, Seller shall have ten (10) business days after
receipt of Purchaser's Title Objection Notice to notify Purchaser in writing
("Seller's Title Response Notice") of Seller's election to either (a) use
commercially reasonable efforts (provided that the aggregate cost therefore
shall not exceed $10,000 per property) to remedy the defects within thirty (30)
days following the date of Seller's Title Response Notice (the "Title Cure
Period") (in which case Closing shall, if necessary, be extended to accommodate
such thirty (30) day Title Cure Period), or (b ) not remedy the defects.
(2)(a) If Seller elects to remedy the title defects, but is unable to
remedy such defects (despite exercising commercially reasonable efforts so to do
(subject to the cost limitation set forth in the immediately preceding
paragraph)) within the thirty (30) day Title Cure Period, Purchaser shall have
the option, exercisable by written notice to Seller within five (5) days
following expiration of the Title Cure Period, of the following:
(i) Proceeding to Closing, taking such title as Seller can deliver, without
reduction of the Purchase Price, or
(ii) Terminating this Agreement, in which event the Escrow Holder shall
immediately return to Purchaser the Xxxxxxx Money, whereupon all rights,
liabilities and obligations of the parties hereto shall terminate and this
Agreement shall be null, void and of no further force or effect, except as
otherwise expressly set forth to the contrary in this Agreement.
(b) If Seller elects not to remedy the title defects, Purchaser shall have
the option, exercisable by written notice to Seller within ten (10) business
days following the date of Seller's Title Response Notice, of the following:
(i) Proceeding to Closing, taking such title at Closing as Seller can
deliver, without reduction of the Purchase Price, or
(ii) Terminating this Agreement, in which event the Escrow Holder shall
immediately return to Purchaser the Xxxxxxx Money, whereupon all rights,
liabilities and obligations of the parties hereto shall terminate and this
Agreement shall be null, void and of no further force or effect, except as
otherwise expressly set forth to the contrary in this Agreement.
(3) At Closing, Seller and Purchaser shall deliver all instruments and
assurances as may be reasonably required by the Title Company to induce the
Title Company to omit from its insurance policy any defect in or objection or
exception to title other than the Permitted Title Exceptions, but in no event
will Seller or Purchaser be obligated to deliver or provide any affidavits or
indemnifications to the Title Company, except for a FIRPTA affidavit, standard
owner's affidavit and GAP indemnity, to the extent required by the Title
Company. Seller shall also deliver all documents which it, during the Title Cure
Period, affirmatively agreed in writing to deliver, and any failure by Seller to
deliver any such document which Seller agreed to deliver during the Title Cure
Period shall constitute a default hereunder, notwithstanding anything to the
contrary contained in Section 5(A)(2)(a)(ii) above.
B. Surveys. Within thirty (30) days after the Effective Date, Seller shall
obtain an ALTA survey of each of the Xxxxxxxx Site, the Calhoun Site, the
Gaffney Site, the Xxxxxx Site, the Xxx Site and the Lodi Site (the "Surveys")
which shall have such detail as reasonably required by Purchaser and the Title
Company. Purchaser shall include all objections to matters of survey in its
Title Objection Notice made pursuant to Section 5(A) hereof; provided, however,
that, to the extent Purchaser makes such objections based on existing surveys
(delivered pursuant to Section 7 below) rather than current Surveys (to be
delivered pursuant to this Section 5(B)) because a current Survey is not yet
available at the time the Title Objection Notice is delivered, Purchaser may
deliver additional objections to "newly discovered survey matters" related to
any Site within ten (10) business days of receipt of the new Survey related to
such Site, and Purchaser shall respond to such objections in the same manner as
Seller shall respond to title objections pursuant to Section 5(A) . For purposes
hereof, "newly discovered survey matters" shall mean any matter disclosed on a
Survey delivered pursuant to this Section 5(B) which does not appear on any
existing survey delivered pursuant to Section 7 hereof.
6. Title Policy. In connection with the disbursement by Title Company of
the Purchase Price at Closing, if required by Purchaser, Title Company shall
deliver to Purchaser, in connection with the disbursement by the Title Company
of the Purchase Price, an ALTA Owner's Policy of Title Insurance pursuant to the
Commitments, with a liability limit equal to the allocated Purchase Price for
each of the six Sites, subject, however, to the Permitted Title Exceptions,
showing fee simple title to each of the Xxxxxxxx Site, the Calhoun Site, the
Xxxxxx Site, the Xxx Site and the Lodi Site and a valid ground lessee's interest
in the Gaffney Ground Lease, all vested in Purchaser (the "Title Policy").
7 . Seller's Deliveries: Inspection. To the extent within Seller's
possession or reasonable control and to the extent that Seller has not already
done so, Seller shall make available the following to Purchaser no later than
five (5) days after the Effective Date:
A. Copies of all existing title insurance policies which relate to the
Property;
B. Copies of all existing surveys of the Property;
C. Copies of operating statements for the years 1999, 2000 and year-to-date
2001 (through September, 2001) for each Property (the "Operating
Statements");
D. Copy of the most recent real property and personal property tax bills
related to each Property;
E. Rent roll for each Property as of November 1, 2001 (the "Rent Roll");
F. Aging report with respect to each Property as of October 31, 2001 (the
"Aging Report");
G. Copies of the leases for retail space with respect to each Property, along
with any amendments, exhibits or letter agreements (including, without
limitation, any agreement confirming the commencement date and/or
expiration date of any such lease) executed with respect thereto (the
"Tenant Leases");
H. Copy of the Gaffney Ground Lease;
I. Copy of documents related to the Gaffney Development Bonds;
J. Copies of equipment leases related to any Property; and
K. Environmental Site Assessments related to any Property.
Notwithstanding any other provision of this Agreement to the contrary, all of
such items and documents shall be returned to Seller forthwith upon termination
of this Agreement for any reason.
8. Seller's Covenants. Between the Effective Date and the date of the
Closing, Seller shall:
A. Except as needed to cause the Property to remain in compliance with all
laws, ordinances, or other requirements, not alter any Property in any material
manner without first obtaining Purchaser's prior written consent, which
Purchaser may not unreasonably withhold, condition or delay.
B. Maintain the Property in a manner generally consistent with the manner
that Seller has maintained the Property prior to the Effective Date hereof.
C. After the Feasibility Period expires, and assuming Purchaser has not
terminated this Agreement prior to the expiration of the Feasibility Period, not
enter into any leases, contracts or agreements that will bind Purchaser or
affect or encumber the Property after Closing without first obtaining
Purchaser's prior written consent, which Purchaser shall not unreasonably
withhold, condition or delay. Prior to the expiration of the Feasibility Period,
Seller may enter into (i) leases without Purchaser's consent, provided it gives
Purchaser notice of the new leases at least ten (10) calendar days prior to
Landlord's execution, and (ii) contracts and other agreements needed to operate
the Property ("Contracts"), provided such contracts and other agreements are
terminable on no more than thirty (30) days notice. To the extent that Purchaser
specifically requests that a Contract be terminated prior to Closing, Seller
shall make commercially reasonable efforts to do so but shall incur no monetary
liability in conjunction therewith.
D. Deliver to Purchaser each and every notice or communication Seller
receives from any governmental body relating to the Property from and after the
Effective Date upon Seller's receipt of the same.
E. Procure from tenants leasing space at any property pursuant to a Tenant
Lease (the "Tenants"), representing at least eighty percent (80%) of the
aggregate leased and occupied leasable area located on the Property, an estoppel
certificate substantially in the form set forth on Exhibit S hereto (the "Tenant
Estoppels"). For purposes of this Section 8(E), a Tenant Estoppel shall count
toward the foregoing eighty percent (80%) requirement so long as the Tenant
Estoppel confirms that the applicable lease is in full force and effect and
alleges no material defaults by the Seller, and for purposes hereof, a Tenant
Estoppel shall count toward the eighty percent (80%) requirement notwithstanding
(a) any dispute regarding CAM reconciliations, prorations or disbursements or
(b) disputes regarding minor maintenance issues. For purposes of determining
aggregate leased and occupied leasable area, "Temporary Tenants" whose entire
lease term is for a period of less than one (1) year shall be excluded; however,
Tenants whose entire lease term is longer than one year, but who may have less
than one (1) year remaining on their lease terms or who may be month-to-month
Tenants following the expiration of a lease term of more than one (1) year,
shall not be considered Temporary Tenants. Seller shall deliver each Tenant
Estoppel to Purchaser promptly upon receipt. If Purchaser concludes that any
Tenant Estoppel should not be counted toward the eighty percent (80%) target for
the reasons set forth above, Purchaser shall make such objection in writing and
deliver it to Seller within seventy-two (72) hours following its receipt
thereof. In the event that Seller is not able to deliver the required eighty
percent (80%) of Tenant Estoppels on or before the Closing Date for any reason
(and Seller shall not be obligated to expend funds in order to satisfy this
requirement), Purchaser may terminate this Agreement, and Purchaser's sole
remedy for Seller's failure to fulfill its obligations pursuant to this Section
8(E) shall be to receive the return of its Xxxxxxx Money, which, if so
terminated, shall be refunded to Purchaser.
F. Cause Prime Retail, L.P. to enter into a master lease agreement, which
shall be delivered to Purchaser at Closing, to be executed by both Prime Retail,
L.P. and Purchaser at closing, in form and substance reasonably acceptable to
both Seller and Purchaser, related to approximately 19,712 square feet of space
in the shopping center located on the Xxxxxxxx Tract formerly occupied by Vanity
Fair. Such master lease agreement shall be substantially on the same terms and
conditions as the lease with Vanity Fair, provided, however, that such master
lease shall contain all of the following terms and conditions: (a) Prime Retail,
L.P.'s base rental obligation (exclusive of additional rent) shall be $8.90 per
square foot of space, or $175,436.80 per year; (b) to the extent that the Vanity
Fair lease contains limits or caps on the amount of additional rent to be paid
by the tenant thereunder, all such limits and caps shall be included in the
master lease agreement; (c) Prime Retail, L.P. shall have the ability to assign
or sublet such space to any tenant not reasonably objectionable to Purchaser;
(d) all tenant upfitting costs or leasing commissions related to any such
assignment or subletting shall be entirely at Prime Retail, L.P.'s expense; (e)
Prime Retail, L.P. shall deliver a security deposit in the amount of $175,436.80
to Purchaser at Closing; and (f) the master lease shall have a term of five (5)
years, commencing on the Closing Date. Purchaser and Seller shall use
commercially reasonable efforts to agree upon the terms of the master lease
agreement on or before the conclusion of the Feasibility Period.
9. Representations and Warranties. To induce Purchaser to enter into this
Agreement, Seller represents and warrants to Purchaser that as of the Effective
Date and through the date of Closing:
X. Xxxxxxxx Seller's Due Organization. The Xxxxxxxx Seller is a duly
organized limited partnership, validly subsisting under the laws of the State of
Delaware, and the Xxxxxxxx Seller is duly qualified and authorized to transact
business in the State of California.
X. Xxxxxxx Seller's Due Organization. The Xxxxxxx Seller is a duly
organized limited partnership, validly subsisting under the laws of the State of
Delaware, and the Xxxxxxx Seller is duly qualified and authorized to transact
business in the State of Georgia.
X. Xxxxxxx Seller's Due Organization. The Gaffney Seller is a duly
organized limited partnership, validly subsisting under the laws of the State of
Delaware, and the Gaffney Seller is duly qualified and authorized to transact
business in the State of South Carolina.
X. Xxxxxx Seller's Due Organization. The Xxxxxx Seller is a duly organized
limited partnership, validly subsisting under the laws of the State of Delaware,
and the Xxxxxx Seller is duly qualified and authorized to transact business in
the State of New York.
X. Xxx Seller's Due Organization. The Xxx Seller is a duly organized
limited partnership, validly subsisting under the laws of the State of Delaware,
and the Xxx Seller is duly qualified and authorized to transact business in the
State of Massachusetts.
F. Lodi Seller's Due Organization. The Lodi Seller is a duly organized
limited partnership, validly subsisting under the laws of the State of Delaware,
and the Lodi Seller is duly qualified and authorized to transact business in the
State of Ohio.
G. Capacity and Authority. Each Seller has the right, power, legal capacity
and authority to enter into and perform its obligations under this Agreement and
the documents, instruments and certificates made or delivered by it pursuant to
this Agreement, and the consummation by Seller of the transactions contemplated
hereunder and thereunder have been, or will prior to Closing be, duly authorized
by all necessary partnership or limited liability company action on the part of
Seller.
H. Legally Binding Obligations. The terms and provisions of this Agreement
and all documents, instruments and certificates made or delivered from time to
time by any Seller hereunder constitute valid and legally binding obligations of
such Seller enforceable against such Seller in accordance with the terms hereof
and thereof.
I. Foreign Persons. No Seller is a "foreign person" (as defined under the
Foreign Investment in Real Property Tax Act and the regulations promulgated
thereunder).
J. Tenant Leases; Contracts; Tenant Improvement Costs. Seller represents
and warrants that, to Seller's knowledge, except as indicated on Exhibit H
hereto, it has kept, observed and performed all of the material obligations to
be performed on a timely basis by Seller as landlord under the Tenant Leases, as
ground lessee under the Gaffney Ground Lease and, except as indicated on Exhibit
J hereto, and as owner under the Contracts. All individual repair or maintenance
work orders for individual tenants required under written agreements made by
Seller with any tenant (other than their respective Leases) and all tenant
improvement costs in connection with the Tenant Leases, which Purchaser shall
assume in conjunction herewith are also set forth in Exhibit H attached hereto
(the "Assumed Tenant Improvement Costs"), for which Purchaser shall receive a
credit against the Purchase Price at Closing in the manner and to the extent set
forth in Section 17(h) hereof. Notwithstanding the foregoing, Purchaser agrees
that Seller shall not have breached this representation and warranty with
respect to any matter disclosed to Purchaser in a Tenant Estoppel delivered to
Purchaser prior to Closing.
K. Contracts. Seller has heretofore delivered to Purchaser true, correct
and complete copies of all of the Contracts (including all amendments thereto).
Except for the Contracts set forth on Exhibit I hereto, there exist no written
management, maintenance, operating, service, commission or other similar
contracts affecting the Property which will survive the Closing and be binding
on Purchaser. To Seller's knowledge, no material default or breach exists on the
part of Seller or any service contractor under any Contract, except as set forth
on Exhibit J . Seller shall use commercially reasonable efforts to obtain any
consents required from the applicable contract parties with respect to the
assignment to Purchaser of each Contract and if any such consent cannot be
obtained and the applicable contracting party refuses to perform for Purchaser,
then Seller shall remain liable for such contract and with respect to Contracts
covering motor vehicles shall be entitled to retain or have returned to Seller
any motor vehicles covered by such Contact.
L. Obligations Under Contracts. Seller represents and warrants that it has
not entered into any written or oral service, management, maintenance or any
other agreement affecting the Property that has not been fully performed and
paid by Seller except as indicated on Exhibit J, or terminated by Seller
(without cost to Purchaser) on or before the Closing Date, other than the
Contracts.
M. Records. Except to the extent governed by the Management Agreement
described in Section 39 hereof, Seller covenants that, for a period of one (1)
year after the Closing Date, on Purchaser's request and with reasonable notice,
Seller shall make all of its records relating to the Property available to
Purchaser for inspection and copying, provided that Purchaser shall reimburse
Seller for its reasonable out-of-pocket expenses in connection therewith.
X. Xxxxxxx Ground Lease. Seller represents and warrants that it has not
entered into, terminated, altered, amended or otherwise modified, supplemented
or granted consent under the Gaffney Ground Lease, except as otherwise disclosed
to Purchaser in writing. Seller has delivered true, correct and complete copies
of the Gaffney Ground Lease, and, to Seller's knowledge, there are no breaches
or violations under such document by the Gaffney Seller (or the applicable
ground lessee thereunder) or the Ground Lessor, or any conditions which, with
notice or the passage of time could ripen into a default thereunder.
O. Utilities. Seller has not received written notice, nor is Seller aware
of, of any pending or threatened reduction or elimination of any utility
service.
P. No Insurance or Fire Code Violations. Except as set forth in Schedule
9(P) hereto, Seller has not received any written notices from any insurance
company or board of fire underwriters alleging any defects or inadequacies in
the Property or any part thereof, nor is Seller aware of any such allegations.
Q. Leasing Commissions. All leasing commissions or referral fees
attributable to the primary term of all Tenant Leases have been or will, by
Closing, be paid in full. No brokerage or similar fee shall be due or payable on
account of the exercise of, without limitation, any renewal, extension or
expansion options arising under any Tenant Leases, except for the leasing
commissions set forth in Exhibit K , the obligations for which shall be
Purchaser's responsibility upon Closing.
R. Unpaid Bills. All bills and claims for water and sewer service and for
labor performed or materials furnished to or for the benefit of the Property, or
assessments for street or other improvements or any other service or labor which
could give rise to a lien for the period on or prior to the Closing Date have
been paid in full on or prior to the Closing Date. There are no liens for unpaid
water and sewer service charges, mechanics' or materialmen's liens, brokers'
liens, or assessments for street or other improvements or for any other service
or labor which could give rise to a lien (whether or not perfected) on or
affecting the Property, except for the Permitted Exceptions.
S. Compliance with Other Agreements. Except as to those matters for which
consents are to be sought pursuant to the provisions hereof, neither this
Agreement nor anything provided to be done hereunder, including, without
limitation, the transfer, assignment and sale of the Property violates any
written or oral contract, agreement or instrument which affects Seller or the
Property or any part thereof and which will become binding on Purchaser after
the Closing Date, except as otherwise set forth in Schedule 9(S) hereto.
T. Litigation. There are no actions or proceedings pending in which Seller
is a named party or are, to the best of Seller's knowledge, threatened against
Seller or the Property before any court or administrative agency or arbitrator
or mediator, which do or will materially adversely affect the Property, except
as disclosed on Exhibit L attached hereto.
U. Seller's Deliveries. To Seller's knowledge, the documents delivered by
Seller pursuant to Section 7 hereof are accurate in all material respects as of
the date set forth thereon, except as otherwise set forth herein.
V. Streets; Eminent Domain. Except as set forth on Exhibit M, Seller has
received no notice or any existing, proposed or contemplated plans to widen,
modify or realign any street or highway, or any existing or proposed or
contemplated eminent domain proceedings which would affect the Property in any
way whatsoever, or the present use, size, alignment or location of any streets
adjacent to the Property, or any planned public improvements which may be
constructed on the surface of or underneath the streets in the vicinity of the
any buildings located on the Property.
W. Environmental. Seller will deliver to Purchaser, pursuant to Section 7
hereof, true and correct copies of all environmental reports and environmental
site assessments prepared by or on behalf of Seller (or in Seller's possession)
in connection with the Property. Except as disclosed to Purchaser in writing or
in the documents delivered by Seller pursuant to Section 7 hereof, Seller has
not received, nor is Seller aware of, any written complaint, order, citation or
notice with regard to air emissions, water discharges, noise emissions, or the
release or threatened release of any Hazardous Materials, or with respect to any
other environmental, health or safety matters affecting the Property, or any
part thereof, and except as disclosed to Purchaser, has no notice of any such
air emissions, water discharges, noise emissions or Hazardous Materials in, on,
over, under or adjacent to the Property. Except as disclosed to Purchaser in
writing or in the documents delivered by Seller pursuant to Section 7 hereof,
Seller has not filed any notice under any federal or state law indicating past
or present treatment, storage or disposal of any Hazardous Material on the
Property, or into the indoor or outdoor environment of the Property. The
foregoing representations and warranties do not cover the presence of Excluded
Materials (hereafter defined) from whatever the source on, in or under the
Property. "Excluded Materials" shall mean (x) Hazardous Materials, other than
asbestos containing materials, which may be present in lawful amounts and stored
in accordance with applicable Laws as components of paints (excluding lead-based
paints), glues, fuels, photocopy equipment supplies, janitorial supplies,
cleaning agents and solvents in quantities stored, found or maintained for
similar uses in retail shopping centers similar to the Buildings, and (y) mastic
containing asbestos and asbestos containing materials in floor or ceiling tile
that are not friable.
X. Personal Property. The Personal Property is free and clear of liens and
encumbrances other than those set forth on Exhibit N. There is no personal
property, including without limitation furniture, fixtures or supplies, owned by
Seller and used by Seller on a substantially exclusive basis in connection with
the use and operation of the Property except for the Personal Property and those
items expressly excluded from the Property hereunder. Seller covenants that any
such additional personal property discovered by Purchaser or Seller after
Closing shall be transferred to Purchaser at no additional cost hereunder free
and clear of all liens, claims and encumbrances other than the Permitted
Exceptions and liens and encumbrances relating to those equipment leases and
equipment financing security interests constituting part of the Contracts.
Y. Tenant Leases. All existing Tenant Leases are listed in the Rent Roll.
Seller has delivered, prior to the date hereof, to Purchaser true and complete
copies of all Tenant Leases including, but not limited to all amendments and
notices of commencement and renewal and all correspondence related thereto. To
Seller's knowledge, the Rent Roll and Aging Report are accurate as to the
information set forth therein in all material respects as of the date set forth
therein. Except as set forth in the Rent Roll and the Tenant Leases or matters
of record disclosed in the Title Commitments, Seller has not entered into any
oral or written Tenant Leases, nor has Seller given any person (other than the
Tenants named in the Rent Roll) any right of possession to the Property or any
part thereof, and there are no other Tenant Leases or rights of possession.
Except as set forth in the Rent Roll and the Tenant Leases, Seller has not given
any concessions of any kind or character (including, without limitation, free or
reduced rent, free or reduced parking, buy-out, finish out, moving,
refurbishment, Tenant equity in the Property, cash payments to Tenants, lease
assumptions and other concessions or allowances granted to induce a Tenant to
enter into a lease, or expand or renew a lease, (collectively, "Concessions") to
any Tenant. No rent under any Tenant Lease has been paid more than thirty (30)
days in advance of its due date by any Tenant. Except as set forth in Exhibit H,
no tenant has any defense or offset against enforcement of the Lease by the
landlord thereunder accruing after the Closing Date. The Tenant Leases described
in the Rent Roll are in full force and effect (except as to tenants in
bankruptcy who may assume or reject such Tenant Leases) and, except as set forth
on the Rent Roll and the Aging Report, to Seller's knowledge, no breach exists
in the payment of rents except as shown on the Rent Roll and Aging Report, no
other default or breach exists on the part of any tenant thereunder except as
disclosed to Purchaser in writing or identified on the Rent Roll and the Aging
Report, and except as set forth in Exhibit H, Seller has not received any notice
of any alleged default or breach on the part of Seller thereunder. A list of all
security deposits (and a statement as to whether interest is payable thereon in
accordance with the terms of the applicable Tenant Lease) shall be supplied
along with the Rent Roll. Notwithstanding the foregoing, Purchaser agrees that
Seller shall not have breached this representation and warranty with respect to
any matter disclosed to Purchaser in a Tenant Estoppel delivered to Purchaser
prior to Closing.
Z. No Options. No commitment, obligation or agreement relating to the
purchase, sale or transfer of the Property, including without limitation any
right of first refusal, purchase option or redemption right, which would or
could prevent Seller from completing the transfer of the Property hereunder or
which would bind Purchaser subsequent to the Closing Date, except as set forth
in Schedule 9(Z) hereto, has been granted to any Tenant or any other party
(other than transfers of leasehold estates under the Tenant Leases and equipment
leases constituting part of the Contracts).
AA. Underlying Title Documents. To Seller's knowledge, there are no
material violations by any party under any restrictions, easement or operating
agreements, or similar reciprocal easement or operating agreements, with respect
to any portion of the Property.
BB. Gaffney Development Bonds. Seller has delivered true, correct and
complete copies of all documents relating to the Gaffney Development Bonds.
There are no breaches or violations under any of such documents by Gaffney
Seller (or the applicable borrower thereunder), or any conditions which, with
notice or the passage of time could ripen into a default thereunder.
CC. Labor Issues. To Seller's knowledge, (1) no strikes or other material
labor disputes are pending or threatened with respect to any portion of the
Property; (2) there is no organizing activity involving the employees of Seller
pending or threatened by any labor union or group of employees; (3) there are no
representation proceedings pending or threatened, with the National Labor
Relations Board; and (4) no labor organization or group of employees has made a
pending demand for recognition. There are no complaints or charges against
Seller pending with any governmental authority or arbitrator based on, arising
out of, in connection with or otherwise relating to, the employment or
termination of employment by Seller of any individual, except as set forth on
Exhibit O. All employees of any Seller working at the Property (or any portion
thereof) shall, at Closing, become employees of the manager of the applicable
Property, and Purchaser shall not assume such employment contracts or
liabilities relating to such employment at Closing.
DD. Insurance Policies. All of Seller's insurance policies covering the
Property, together with the name, title and phone numbers of all appropriate
contacts, are listed on Exhibit P attached hereto. No notice has been received
by Seller from the insurance company which issued any of such policies stating
that any of such policies is not in full force and effect.
The representations and warranties set forth in this Section 9 shall be
true and correct as of the date of this Agreement, and shall be true and correct
in all material respects on the date of Closing as if restated in full as of the
date of Closing. The representations and warranties set forth in this Section 9
shall survive the Closing for a period of nine (9) months as to the status of
facts as they exist on the Closing Date, it being understood that Seller makes
no representations and warranties which would apply to changes occurring after
the Closing. The words "to Seller's knowledge" as used in this Agreement means
the actual knowledge of the following individual(s): Xxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxxxxxxxx Xxxx and C. Xxxxx Xxxxxxxxx (only as to the representations and
warranties made in Section 9(T) hereof), it being understood that the foregoing
individuals shall not personally be liable for any inaccurate or incomplete
statement or information.
10. Disclaimer of Certain Representations or Warranties by Seller.
A. Except as otherwise expressly provided in this Agreement, Seller does
not make any representations, guaranties, promises, statements, assurances or
warranties of any kind or nature whatsoever, express or implied, as to the
financial condition, business, operations, assets, liabilities or prospects of
the Property or any of its operations, of any kind or nature whatsoever.
B. Without limiting the generality of the foregoing, except as expressly
set forth in this Agreement, Purchaser hereby acknowledges and agrees that it is
purchasing the Property in its present "AS IS/WHERE IS" condition and with all
defects and neither Seller nor any employee or agent of Seller has made or will
make, either express or implied, any representations, guaranties, promises,
statements, assurances or warranties of any kind concerning any of the following
matters (collectively referred to herein as the "Property Conditions"): (i) the
suitability or condition of the Property for any purpose or its fitness for any
particular use, (ii) the profitability and/or feasibility of owning, developing,
operating, financing, and/or improving the Property, (iii) the physical
condition of the Property, (iv) the rentals, income, costs or expenses thereof,
(v) water or utility availability or use restrictions, (vi) geologic/seismic
conditions, soil and terrain stability, or drainage, (vii) sewer, septic, and
well systems and components, or (viii) or any other past, present or future
matter relating to the Property which may affect the Property or its current or
future use, habitability, value or desirability.
C. Purchaser is strongly encouraged to conduct its own inspection and
investigation of the Property Conditions referred to above and is further
encouraged to obtain, at its expense, expert advice as to such matters from
professional inspectors and others. Purchaser acknowledges that as of Closing,
pursuant to Section 3 above, it has been given the full opportunity to inspect
and investigate such Property Conditions to its own satisfaction or cause such
an inspection and investigation by experts engaged by Purchaser.
11. Purchaser's Representations and Warranties. Purchaser hereby represents
and warrants to Seller as follows:
A. Due Organization and Authorization to Do Business. Purchaser is a duly
organized limited liability company, validly subsisting under the laws of
Delaware, and either (a) Purchaser is, or prior to the Closing will be, duly
qualified and authorized to transact business in the States of California,
Georgia, South Carolina, New York, Massachusetts, and Ohio; or (b) if Purchaser
elects to have each Site transferred to a separate affiliate (which Purchaser
shall be authorized to do, to the extent permitted by Section 25 hereof), that
the affiliate acquiring the Xxxxxxxx Site shall be duly qualified and authorized
to do business in the State of California; that the affiliate acquiring the
Xxxxxxx Site shall be duly qualified and authorized to do business in the State
of Georgia; the affiliate acquiring the Gaffney Site shall be duly qualified and
authorized to do business in the State of South Carolina; the affiliate
acquiring the Xxxxxx Site shall be duly qualified and authorized to do business
in the State of New York; the affiliate acquiring the Xxx Site shall be duly
qualified and authorized to do business in the State of Massachusetts; and the
affiliate acquiring the Lodi Site shall be duly qualified and authorized to do
business in the State of Ohio.
B. Legal Capacity and Authority. Purchaser and any affiliate of Purchaser
which will acquire title to any Property pursuant hereto has the right, power,
legal capacity and authority to enter into and perform its obligations under
this Agreement and the documents, instruments and certificates made or delivered
by it pursuant to this Agreement, and the consummation by Purchaser of the
transactions contemplated hereunder and thereunder have been, or will prior to
Closing be, duly authorized by all necessary action. The parties signing this
Agreement on behalf of the Purchaser are authorized officers of the respective
entities and the respective entities will be bound by the terms of this
Agreement.
C. Validly Binding Obligations. The terms and provisions of this Agreement
and all documents, instruments and certificates made or delivered from time to
time by Purchaser hereunder constitute valid and legally binding obligations of
Purchaser enforceable against Purchaser in accordance with the terms hereof and
thereof.
All representations and warranties of Purchaser contained in this Section
11 or in any other provision of this Agreement shall be true and correct as of
the date of this Agreement, and shall be true and correct in all material
respects on the date of Closing as if restated in full as of the date of
Closing. The representations and warranties set forth in this Section 11 shall
survive the Closing for a period of six (6) months as to the status of facts as
they exist on the Closing Date, it being understood that Purchaser makes no
representations and warranties which would apply to changes occurring after the
Closing.
12. Brokers. Purchaser represents and warrants to Seller that in connection
with the purchase and sale of the Property, Purchaser and its affiliates have
not dealt with any parties other than Seller or its affiliates, with the sole
exception of Xxxxxxx Partners, Inc., and Purchaser shall be solely responsible
for payment of any fees owed Xxxxxxx Partners, Inc. in conjunction herewith.
Seller represents and warrants that in connection with the sale of the Property,
other than Granite Partners, L.L.C. ("Seller's Broker"), Seller and its
affiliates have not dealt with any parties other than Purchaser and its
affiliates. Seller will be responsible for the payment of a commission to
Seller's Broker, and no other party, pursuant to a separate written agreement
between Seller and Seller's Broker if and when Closing occurs pursuant to this
Agreement. Each party agrees to indemnify and hold the other harmless from and
against the claims of any other person, firm, or corporation claiming any
brokerage commission, finder's fee, or similar compensation based on any alleged
negotiations or dealings with that party contrary to the representations set
forth in this Section 12. The representations and warranties as well as the
indemnification and other agreements in this Section shall survive Closing and
conveyance of title to the Property by deed or any earlier termination of this
Agreement.
13. Joinder in Applications. Prior to Closing, Seller shall, at Purchaser's
expense, reasonably cooperate and to the extent reasonably feasible, cause
others to cooperate reasonably with Purchaser, in obtaining site plan approval
or modification, building or other appropriate permits and other appropriate
government approvals in connection with any contemplated renovation of the
Property, including the taking of any appeals or such proceedings that may be
necessary and appropriate in connection therewith; provided, however, that under
no circumstances will any such approvals, permits and proceedings be binding on
the Seller, or on the Property until after Closing.
14. Conditions to Purchaser's Obligation to Close. The obligations of
Purchaser to close the transactions contemplated by this Agreement and to pay
the Purchase Price are conditioned upon and subject to the satisfaction as of
the date of Closing or such other date as may be specified below (or waiver by
Purchaser) of each of the following conditions:
A. Seller shall have materially performed and complied with all agreements,
covenants, and conditions to be performed or complied with prior to the date of
the Closing.
B. All of Seller's representations and warranties set forth in this
Agreement shall be true and correct in all material respects as of the date of
the Closing.
C. Purchaser shall not have terminated this Agreement during the
Feasibility Period.
If all of the aforementioned conditions have not been satisfied as of the
date of Closing, or waived by Purchaser on or before the date of Closing,
Purchaser may, in Purchaser's sole and absolute discretion (i) within five (5)
days thereafter, terminate this Agreement, in which event the Xxxxxxx Money,
shall promptly be returned to Purchaser and all rights, obligations, and
liabilities under this Agreement shall terminate except as otherwise expressly
set forth to the contrary in this Agreement; or (ii) waive such conditions and
proceed to Closing.
15. Conditions to Seller's Obligations to Close. The obligations of Seller
to close the transactions contemplated by this Agreement and to transfer the
Property are conditioned upon and subject to satisfaction as of the date of
Closing or such other date as may be specified below (or waiver by Seller) of
each of the following conditions:
A. Purchaser shall have performed and complied with all agreements,
covenants and conditions to be performed or complied with prior to the date of
Closing.
B. All of Purchaser's representations and warranties set forth in this
Agreement shall be true and correct in all material respects as of the date of
the Closing.
C. Seller shall have obtained the approval of the Board of Directors of
Prime Retail, Inc. to the transaction described herein. Seller expects to obtain
such approval at a meeting of said Board of Directors which is scheduled to take
place January 9, 2001. Seller shall promptly notify Purchaser, after said
meeting, as to whether such approval is obtained.
If all of the aforementioned conditions have not been satisfied as of the
date of Closing, or waived by Seller on or before the date of Closing, Seller
may, in Seller's sole and absolute discretion (i) within five (5) days
thereafter, terminate this Agreement in which event the Xxxxxxx Money, shall be
paid to Seller as liquidated damages (and not as a penalty), and all rights,
obligations and liabilities under this Agreement shall terminate except as
otherwise expressly set forth to the contrary in this Agreement; (ii) one time
only, extend, for an additional thirty (30) days, the period during which the
conditions must be satisfied; or (iii) waive such conditions and proceed to
Closing.
16. Provisions with Respect to Closing.
A. Prior to Closing, and provided that all conditions precedent to Seller's
obligations under this Agreement are satisfied or waived in writing, Seller
shall deliver to the Title Company the following:
(1) the Xxxxxxxx Deed duly executed and acknowledged by the Xxxxxxxx Seller,
conveying to Purchaser fee simple title to the Property, in proper form for
recording and subject only to the Permitted Title Exceptions;
(2) the Xxxxxxx Deed duly executed and acknowledged by the Xxxxxxx Seller,
conveying to Purchaser fee simple title to the Property, in proper form for
recording and subject only to the Permitted Title Exceptions;
(3) the Xxxxxxx Ground Lease Assignment (counterpart to be executed by
Purchaser) duly executed and acknowledged by the Xxxxxxx Seller, conveying
to Purchaser fee simple title to the Property, in proper form for recording
and subject only to the Permitted Title Exceptions;
(4) the Xxxxxx Deed duly executed and acknowledged by the Xxxxxx Seller,
conveying to Purchaser fee simple title to the Property, in proper form for
recording and subject only to the Permitted Title Exceptions;
(5) the Xxx Deed duly executed and acknowledged by the Xxx Seller, conveying to
Purchaser fee simple title to the Property, in proper form for recording
and subject only to the Permitted Title Exceptions;
(6) the Lodi Deed duly executed and acknowledged by the Lodi Seller, conveying
to Purchaser fee simple title to the Property, in proper form for recording
and subject only to the Permitted Title Exceptions;
(7) the Xxxx of Sale duly executed and acknowledged by each applicable Seller,
conveying to Purchaser title to the Personal Property;
(8) the Assignment and Assumption of Tenant Leases (counterpart to be executed
by Purchaser) substantially in the form attached hereto as Exhibit F;
(9) the Assignment and Assumption of Contracts (counterpart to be executed by
Purchaser) substantially in the form attached hereto as Exhibit G;
(10) An affidavit, in the form attached hereto as Exhibit Q executed each
Seller, stating each Seller's U.S. Taxpayer identification number and that
no Seller is not a "foreign person" (as defined under the Foreign
Investment in Real Property Tax Act and the regulations promulgated
thereunder) and that Purchaser is not required to withhold any portion of
the Purchase Price under the provisions of such Act;
(11) The Tenant Estoppels received from Tenants as required hereunder (to the
extent not already delivered to Purchaser);
(12) Such proof of each Seller's authority and authorization to enter into this
Agreement and consummate the transaction contemplated hereby, and such
proof of the authority of the individual(s) executing and/or delivering any
instruments, documents or certificates on behalf of Seller to act for and
bind Seller, as may be reasonably required by Title Company;
(13) An estoppel generally in the form of the Tenant Estoppel attached hereto as
Exhibit S; executed by the lessor pursuant to the Xxxxxxx Ground Lease,
alleging no defaults thereunder, or other assurance, reasonably
satisfactory to Purchaser, that the Xxxxxxx Ground Lease is in full force
and effect; and
(14) Letters addressed to all Tenants stating that, after the Closing, all
Tenants shall pay rent pursuant to the Tenant Leases to Purchaser or its
designee.
B. On the date of the Closing, and provided that all conditions precedent
to Purchaser's obligations under this Agreement are satisfied or waived in
writing, Purchaser shall deposit with the Title Company the amount of the
Purchase Price (less credits, adjustments, and prorations in accordance with
this Agreement) by wire transfer or other immediately available funds. In
addition, on the date of Closing, Purchaser shall deliver to the Title Company
counterparts of the documents listed in Section (A)(3), (8) and (9) above, such
proof of Purchaser's authority and authorization to enter into this Agreement
and consummate the transaction hereby, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Purchaser to act for and bind Purchaser as may be
reasonably required by the Title Company.
C. On the date of Closing, the Title Company shall disburse the Purchase
Price (inclusive of the Xxxxxxx Money to be delivered to the Title Company by
the Escrow Holder), as adjusted by prorations and credits and Seller's closing
costs, to Seller, and Seller shall deliver possession of the Property to
Purchaser in the same condition as provided for in this Agreement, ordinary wear
and tear excepted.
D. Seller shall pay: (i) one half of the title premiums (including title
search fees, but not including costs of endorsements) related to the Xxxxxxxx
Site, the Xxxxxxx Site and Lodi Site; (ii) one half of the Survey costs related
to Xxxxxxxx Site, the Xxxxxxx Site and Lodi Site; (iii) the cost of recording
matters of title clearance by Seller to the extent required pursuant to Section
5 above, (iv) the costs of having the Property released from any existing
financing of the Property, (v) one half of all transfer taxes or sales taxes;
(vi) one half of any escrow fees charged by Escrow Holder and (vii) Seller's
legal fees. Purchaser shall pay for (i) one half of the title premiums related
to the Xxxxxxxx Site, the Xxxxxxx Site and Lodi Site (including title search
fees), (ii) all title premiums related to the Xxxxxxx Site, the Xxxxxx Site and
the Xxx Site, (iii) all fees related to endorsements to any title policy, (iv)
one half of the Survey costs related to the Xxxxxxxx Site, the Xxxxxxx Site and
Lodi Site, (v) all Survey costs related to the Xxxxxxx Site, the Xxxxxx Site and
the Xxx Site, (vi) the cost of recording the Deeds, (vii) one half of all
transfer taxes or sales taxes, (viii) the costs and expenses associated with any
financing needed by Purchaser, (ix) one half of any escrow fees charged by
Escrow Holder and (x) Purchaser's legal fees. If, as a result of no fault of
Purchaser or Seller, Closing shall fail to occur, Purchaser and Seller shall
each bear one-half of Escrow Holder's fees and charges.
17. Closing Adjustments; Prorations. Adjustments shall be made between
Seller and Purchaser for the following items in the manner described below:
(a) All rentals (including all CAM, tax, insurance, trash charges, all
marketing and promotional charges but excluding all percentage rentals, but
including percentage rental if paid in lieu of base rent) and all other income
related to the Property shall be prorated between Seller and Purchaser on a per
diem basis, as of 11:59 p.m. of the day preceding the date of the Closing (the
"Proration Time"). All rentals received by Seller prior to the Closing Date for
months after the Closing Date shall be credited to Purchaser at Closing.
(b) Percentage rentals under each Tenant Lease shall be adjusted between
Seller and Purchaser based on the lease year or other applicable annual period
used to compute percentage rent under the Tenant Lease (the "Lease Year") with
Seller being entitled to a fraction of the total percentage rent paid by the
Tenant for the Lease Year determined by dividing the number of days in such
Lease Year through the Proration Time by the total number of days in the Lease
Year, with Purchaser being entitled to the balance. For instance, if the
Proration Time is 11:59 p.m. on December 21, 2001, the Lease Year for a
particular tenant expires on January 31, 2002, and the total percentage rent
paid by the Tenant is $10,000, Seller would be entitled to $8,876.71 (314/365 x
$10,000). To the extent information necessary to determine percentage rent is
available, the adjustment for percentage rentals shall occur on the Closing
Date; if such information becomes available post-Closing, the parties shall
re-prorate thereafter, provided that prorations of percentage rentals shall
occur no later than two (2) months after each applicable lease year expires.
(c) Rents payable under the Xxxxxxx Ground Lease shall be prorated as of
the Proration Time, and income received from and/or payments required pursuant
to the Xxxxxxx Development Bonds shall also be prorated as of the Proration
Time. Seller shall pay in full all invoices, bills and other obligations
relating to any Property for the period prior to the Closing Date, regardless of
whether the invoices, bills and evidences of other obligations are received
prior to, on or after the Closing Date. To the extent practicable, utility
meters (other than those payable directly by Tenants to the public utilities)
shall be read as soon as practicable prior to the Closing Date. Seller shall
assign to Purchaser all of Seller's right, title and interest in all utility
security deposits, and Seller shall receive a credit therefor.
(d) All deposits made by tenants under any Tenant Lease as security for
rent, cleaning or any other purpose (whether identified as refundable or
non-refundable) that have not been applied in accordance with the terms of the
Tenant Leases prior to the Closing Date shall be paid to Purchaser as of the
Closing Date, together with, if applicable, the amount of interest then accrued
at the interest rate payable with respect thereto in accordance with the terms
of the applicable Tenant Lease. If any Deposit is in the form of a letter of
credit, such letter of credit shall be transferred by Seller to Purchaser on the
Closing Date if it is transferable, or if such letter of credit is not
transferable, Seller shall make commercially reasonable efforts to cause the
Tenant to deliver a replacement letter of credit, or, at Purchaser's option,
Seller and Purchaser shall execute and deliver on the Closing Date a mutually
acceptable agreement pursuant to which the benefits of such letter of credit are
made available to Purchaser.
(e) No prorations shall be made for delinquent rentals under the Tenant
Leases. Seller reserves the right to use reasonable efforts to collect or
attempt to collect such delinquent rentals with respect to those tenants set
forth on Exhibit R. Seller agrees that no security deposits will be applied
against any Tenant's obligation under any Tenant Lease, except in instances in
which (i) the applicable Tenant is in default under its Tenant Lease and (ii)
either the applicable Tenant Lease has been terminated, or the Tenant has
vacated the applicable premises. In the event any security deposit is so
applied, Seller shall make commercially reasonable efforts to have such tenant
replace such funds or such security deposit, but Purchaser shall not be entitled
to any credit at closing in the event that Seller is unsuccessful in obtaining
replacement funds or a replacement security deposit. With respect to all other
tenants, Purchaser shall use reasonable efforts to for the benefit of Seller but
shall not be required to spend more than nominal sums or to declare a tenant in
default to do so. Purchaser agrees, for a period of one (1) year after the
Closing Date, to include in its billing to Tenants, invoices for these
delinquent rents prepared by Seller and provided to Purchaser, and agrees to
refer Tenants having questions as to their invoices to a designated contact
person of Seller. Purchaser shall not have the right to forgive the delinquent
rentals. Seller shall have no right to attempt to collect delinquent rents
(except as specifically provided above) on or after the Closing Date and shall
not bring any actions against any tenants with respect thereto, except that
Seller may (i) file and prosecute claims for pre-closing rents in a Tenant
bankruptcy, (ii) bring any claim or counter-claim relating to pre-closing events
against any such tenant who files a legal action against Seller and (iii) if
Seller, acting as manager of the Property pursuant to the Property Management
Agreement, takes any action to pursue a Tenant for post-Closing rental
obligations, Seller may include in such action all unpaid Pre-Closing rent. To
the extent that a judgment is obtained prior to Closing with respect to any
Tenant, nothing herein shall limit Seller's ability to enforce said judgment,
and such judgment shall not be assigned to Purchaser at Closing.
(f) Rents (exclusive of percentage rentals) collected after the Closing
Date shall be applied first to current rents, second to rents past due after the
Closing Date, and third to rents past due prior to the Closing Date, all on a
tenant by tenant basis.
(g) Purchaser shall be entitled to a credit at Closing for any unpaid
leasing commissions which relate to the period prior to the Closing Date. All
leasing commissions which relate to a time after the Proration Time, all of
which are listed on Exhibit K hereto, shall be Purchaser's responsibility.
(h) Purchaser shall be entitled to a credit at Closing for any tenant
improvement allowances to which Seller agreed but which have not been paid to
such Tenant on or before the Closing Date; provided, however, that Purchaser
shall not be entitled to any such credit with respect to a tenant improvement
allowance agreed to in conjunction with any Tenant Lease signed after the
Effective Date hereof, which Tenant Lease was executed with the approval of the
Purchaser.
(i) At Closing, Seller shall deposit with Purchaser an amount equal to all
CAM, tax, trash and insurance (collectively, "Additional Charges")
reconciliations for the year in which the Closing occurs which are due tenants
under Tenant Leases and not previously paid or credited to tenants. Purchaser
and Seller agree to cooperate in good faith post-Closing to reconcile such
Additional Charges. Seller shall reimburse Purchaser for any overpayments of
Additional Charges attributable to the period of Seller's ownership under the
Tenant Leases (such that, after taking into account the prorations elsewhere in
this Section, neither Seller nor Purchaser shall have retained Additional
Charges in excess of what each spent). Similarly, Purchaser shall reimburse
Seller promptly after receipt of same from tenants for any shortages
attributable to the period of Seller's ownership to the extent Purchaser
receives reimbursement from Tenants under Tenant Leases.
(j) All general and special real property, personal property and other ad
valorem taxes and assessments, including special assessments, for the Property
and all other governmental taxes, fees, charges and assessments affecting the
Property or any part thereof shall be prorated as of the Proration Time, on the
basis of the most recent reliable information available (which, in the case of
real property taxes and assessments, shall be the most current real property tax
xxxx available). Purchaser shall receive a credit in an amount equal to all of
such taxes which are due and payable as of the Closing Date (and are unpaid),
and Seller shall receive a credit in an amount equal to all such taxes paid by
Seller for periods after the Proration Time. Prorations of these amounts shall
take into account the rental amounts which are prorated in accordance with
Section 17(a) hereof.
(k) All payments due under the Contracts shall be prorated as of the
Proration Time.
18. Condemnation. If between the Effective Date and the date of the Closing
any condemnation or eminent domain proceedings are initiated, or Seller receives
written notice that any condemnation or eminent domain proceedings are
threatened, which will result in the taking of any material part of the
Property:
A. Either Purchaser or Seller may terminate this Agreement, in which event,
the Xxxxxxx Money shall promptly be returned to Purchaser and all of the rights,
duties and obligations of the parties under this Agreement shall immediately
terminate and this Agreement shall be null, void and of no further force or
affect, except as otherwise expressly set forth to the contrary in this
Agreement; or
B. If neither party terminates this Agreement in accordance with (A) above,
the parties shall consummate the transactions contemplated by this Agreement,
without reduction of the Purchase Price, in which event Seller shall assign to
Purchaser all of Seller's right, title, and interest in and to any award made
with respect to the Property in connection with such condemnation or eminent
domain proceedings.
Seller shall immediately notify Purchaser in writing of the threat or the
occurrence of any condemnation or eminent domain proceedings for any material
part of the Property. Purchaser shall then notify Seller within fifteen (15)
business days after the date of Purchaser's receipt of Seller's notice of such
condemnation or eminent domain proceedings or the threat of such proceedings
whether Purchaser elects to exercise its right under Subparagraph A. or B. of
this Section. For purposes of this Section 18, a "material part of the Property"
shall mean a portion of the Property which, once taken, reduces the value of the
Property by the greater of five percent (5%) or Two Million and No/100 Dollars
($2,000,000).
19. Damage or Destruction. If between the Effective Date and the date of
the Closing, all or any material portion of the Property is damaged or destroyed
by fire or other casualty or natural disaster, Seller shall immediately notify
Purchaser in writing of such occurrence, and:
A. Either Purchaser or Seller may terminate this Agreement, in which event
the Xxxxxxx Money shall promptly be returned to Purchaser and all rights and
obligations of the parties hereunder shall immediately terminate and this
Agreement shall be null, void, and of no further force or effect, except as
otherwise expressly set forth to the contrary in this Agreement; or
B. If neither party terminates this Agreement in accordance with (A) above,
the parties shall consummate the transactions contemplated by this Agreement,
without reduction of the Purchase Price, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in any insurance proceeds
payable as a result of such fire or casualty.
For purposes of this Section 19, a "material portion of the Property" shall
mean a portion of the Property which, once taken, reduces the value of the
Property by the greater of five percent (5%) or Two Million and No/100 Dollars
($2,000,000).
20. Remedies.
A. Except as otherwise specifically set forth herein, if Seller fails to
consummate the sale of the Property due to a default by Seller hereunder,
Purchaser (a) may cancel this Agreement and have the Xxxxxxx Money immediately
refunded to Purchaser, and (b) shall be entitled to a "Break-Up Fee" of One
Million and No/100 Dollars ($1,000,000.00) from Seller, which Break-Up Fee the
parties agree constitutes liquidated damages (and not a penalty) in the event of
default by Seller (provided, however, that Seller shall remain liable for its
indemnification obligations contained in this Agreement). The aforementioned
remedies shall be Purchaser's sole and exclusive remedies in the event of a
default by Seller, except as set forth in Section 20 (C.) below.
B. If Purchaser fails to consummate the sale of the Property due to a
default by Purchaser, Seller may cancel this Agreement and retain the Xxxxxxx
Money, which sum the parties agree constitutes liquidated damages (and not a
penalty) in the event of default by Purchaser (provided, however, that Purchaser
shall remain liable for its indemnification obligations contained in this
Agreement). The aforementioned remedies shall be Seller's sole and exclusive
remedies in the event of a default by Purchaser, except as set forth in Section
20 (C.) below
C. If either Purchaser or Seller brings an action to enforce its rights
under this Agreement, the successful party shall be reimbursed by the
unsuccessful party for all costs of enforcement, including reasonable attorneys'
fees and court costs. Tender of deed or purchase money shall not be necessary
where the other party has defaulted.
21. Notices. All notices, demands, requests, and other communications under
this Agreement shall be in writing and shall be deemed properly served on the
date of delivery if delivered by hand to the party to whose attention it is
directed, three (3) days after being sent if mailed postage prepaid, by
registered or certified mail, return receipt requested, the next day if sent by
private receipt courier guaranteeing next day delivery, delivery charges
prepaid, or the same date if transmitted by facsimile transmission, provided
receipt of the notice is confirmed, orally or in writing by a representative of
Seller or Purchaser, as the case may be, addressed as follows:
If intended for any Seller to:
Prime Retail, L.P .
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Xx. Xxxx Xxxxx
Facsimile No.: (000) 000-0000
with copies to:
Prime Retail, L.P .
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: C. Xxxx Xxxxxxxxx, Esquire
Facsimile No.: (000) 000-0000
and
Xxxxx & Lardner
Three First National Plaza
70 West Madison, Suite 4100
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esquire
Facsimile No.: (000) 000-0000
If intended for Purchaser, to:
PWG Capital, LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esquire
Facsimile No.: (000) 000-0000
or at such other address or to such other party which any party entitled to
receive notice designates to the others in writing. Counsel for each party is
authorized to serve notices hereunder for the party whom he represents.
22. Governing Law. This Agreement and the validity, meaning and effect of
this Agreement, shall be determined in accordance with the laws of the State of
New York, applicable to contracts made and to be performed in that state.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. Captions. The captions of this Agreement are inserted for convenience
of reference only and in no way define, describe, or limit the scope or intent
of this Agreement or any of the provisions of this Agreement.
25. Assignability. This Agreement and any of the Purchaser's rights under
this Agreement may not be assigned by Purchaser, without the consent of Seller,
which consent may be withheld in the sole discretion of Seller. Notwithstanding
the foregoing, Seller's consent shall not be required in the event of an
assignment by Purchaser of this Agreement to a joint venture, partnership,
limited liability company or other form of business organization in which
Purchaser owns an interest and regarding which Purchaser or its principals
shall, directly or indirectly, exercise primary control, so long as such
assignment does not release Purchaser from its obligations hereunder. If the
event of any assignment, such assignment shall be expressly conditioned on (i)
Purchaser remaining primarily liable following any such assignment, (ii) a
transfer and written assignment of Purchaser's interest in the Xxxxxxx Money
Escrow to the permitted assignee, and (iii) the permitted assignee assuming in
writing all of the Purchaser's obligations.
26. Binding Effect. Subject to the provisions of Section 25 above, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective heirs, executors, administrators, legal representatives,
successors, and assigns.
27. Partial Invalidity. If any provision or provisions, or any portion of
any provision or provisions, of this Agreement is found by a court of law to be
in violation of any applicable local, state, or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Agreement to be illegal,
invalid, unlawful, void, or unenforceable as written, then it is the intent both
of Seller and Purchaser that any portion, provision, or provisions shall be
given force to the fullest possible extent that they are legal, valid, and
enforceable, that the remainder of this Agreement shall be construed as if such
illegal, invalid, unlawful, void, or unenforceable portion, provision, or
provisions were not contained in this Agreement and that the rights,
obligations, and interest of Seller and Purchaser under the remainder of this
Agreement shall continue in full force and effect.
28. Time is of the Essence. Time is of the essence of this Agreement.
30. Acceptance of Offer. The offer to purchase the Property made by
Purchaser by the delivery of a copy of this Agreement as executed on behalf of
Purchaser shall automatically terminate and expire at 5:00 p.m. E.S.T. on the
Effective Date, unless the offer is accepted earlier by Seller's execution of
this Agreement, or a counterpart hereof, and by the return to Purchaser of a
fully executed copy of this Agreement on or before the date and time
aforementioned. Either party's facsimile transmission of a fully-executed
counterpart of this Agreement to the other shall constitute conclusive evidence
of execution and delivery of this Agreement, so long as receipt of the facsimile
is confirmed, orally or in writing by a representative of Seller and Purchaser,
and so long as fully executed originals of this Agreement are executed and
deposited with a private receipt courier on the Effective Date guaranteeing next
business day delivery.
31. Entire Agreement. This Agreement contains the final agreement for the
purchase and sale of the Property between the parties, and supersedes all prior
written or verbal agreements and communications, and neither they nor their
agents shall be bound by any terms, conditions, or representations not contained
in this Agreement. Any modification shall not be effective unless set forth in
writing and executed by both parties. The term "Agreement" when used in any of
the documents defining the agreement of the parties for the purchase of the
Property shall mean the Agreement with all exhibits, and any written amendments
to those documents which are signed by authorized representatives of the
parties.
32. Arbitration; Consent to Jurisdiction. The parties, as a material part
of the consideration rendered pursuant to this Agreement, hereby waive any and
all rights to the arbitration of disputes arising under the terms of this
Agreement. Furthermore, the parties hereto hereby consent to the jurisdiction of
the Supreme Court of the State of New York, County of New York and agree that
said court may hear any grievance related to this Agreement brought by any party
hereto.
33. Representation by Counsel. Each party to this Agreement represents that
it has been represented or had the opportunity to be represented in the signing
of this Agreement by independent counsel selected freely, and it has had an
opportunity to discuss this Agreement with counsel.
34. Dates. If any dates hereunder fall on a Saturday, Sunday or legal
holiday, such date shall, for purposes of this Agreement, be the next following
business day.
35. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to
confer any rights upon, nor obligate any of the parties hereto, to any person or
entity other than the parties hereto.
36. Waiver. The waiver or failure to enforce any provision of this
Agreement shall not operate as a waiver of any future breach of any such
provision or any other provision hereof.
37. Fees and Other Expenses. Except as otherwise provided herein, each of
the parties shall pay its own fees and expenses in connection with this
Agreement.
38. Construction. The parties hereto hereby acknowledge and agree that (i)
each party hereto is of equal bargaining strength, (ii) each such party has
actively participated in the drafting, preparation and negotiation of this
Agreement, (iii) each such party has consulted with such party's own independent
counsel, and such other professional advisors as such party has deemed
appropriate, relating to any and all matters contemplated under this Agreement,
(iv) each such party and such party's counsel and advisors have reviewed this
Agreement, (v) each such party has agreed to enter into this Agreement following
such review and the rendering of such advice and (vi) any rule of construction
to the effect that ambiguities are to be resolved against the drafting parties
shall not apply in the interpretation of this Agreement, or any portions hereof,
or any amendments hereto.
39. Management Agreement; Trademark License Agreement. Notwithstanding
anything to the contrary set forth herein, Seller and Purchaser expect that an
affiliate of Seller shall act as property manager of each Property beginning
immediately after the Closing, pursuant to a management agreement substantially
in the form attached hereto as Exhibit T (the "Management Agreement"). The
parties agree, however, that the form attached hereto as Exhibit T shall be
modified to accommodate any lockbox arrangement which may be required by
Purchaser's lender. So long as an affiliate of Seller continues to serve as
property manager of each Property pursuant to a Management Agreement, Seller
shall grant a license to Purchaser permitting Purchaser to continue to use its
trademark name, "Prime Outlets", in conjunction with the Property substantially
in the form attached hereto as Exhibit U (the "Trademark License Agreement").
40. Indemnity. Prime Realty, L.P., the general partner of each Seller,
shall defend, indemnify and save Purchaser and its respective successors and
assigns, harmless from any cost, loss damage or expense, including without
limitation, reasonable attorneys' fees, incurred as a result of the Pending
Litigation identified on Exhibit L hereto, unless such cost, loss, damage or
expense results from the Purchaser's action or inaction. This indemnity shall
survive Closing.
[The remainder of this page has intentionally been left blank. Signature pages
follow.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date the last party signs.
ANDERSON SELLER:
SHASTA OUTLET CENTER LIMITED PARTNERSHIP, a
Delaware limited partnership (doing business
in California as Anderson Outlet Center
Limited Partnership)
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
XXXXXXX SELLER:
THE PRIME OUTLETS AT XXXXXXX LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
XXXXXXX SELLER:
CAROLINA FACTORY SHOPS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
XXXXXX SELLER:
XXXXXX FACTORY STORES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
XXX XXXXXXX:
THE PRIME OUTLETS AT XXX LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
PRIME XXX DEVELOPMENT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
LODI SELLER:
BUCKEYE FACTORY SHOPS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________
PURCHASER:
PWG CAPITAL, LLC,
a Delaware limited liability company
By: ___________________________________(SEAL)
Name: _______________________________________
Title: ______________________________________
Date: _______________________________________