Exhibit 10.7
AGREEMENT
BANK OF AMERICA, N.A.
("Seller")
and
AMERICAN FINANCIAL RESOURCE GROUP, LLC
("Purchaser")
Dated: MARCH ___, 2002
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .............................................................. 1
1. DEFINED TERMS ...................................................................... 1
2. [INTENTIONALLY OMITTED] ............................................................ 2
3. SALE AND PURCHASE OF FEE PROPERTIES ................................................ 2
4. FEE PROPERTIES - REAL AND PERSONAL ASSETS .......................................... 3
5. PURCHASE PRICE ..................................................................... 3
6. ADDITIONAL PURCHASE PRICE PAYMENT ON RESALE OF FEE PROPERTIES ...................... 3
7. RETAINED PREMISES LEASE; ADDITIONAL COMPENSATION ................................... 4
8. SETTLEMENT ......................................................................... 5
9. TITLE .............................................................................. 5
10. SERVICE AND MAINTENANCE CONTRACTS .................................................. 7
11. DOCUMENTS TO BE DELIVERED BY SELLER AT SETTLEMENT .................................. 8
12. DOCUMENTS TO BE DELIVERED BY PURCHASER AT SETTLEMENT ............................... 9
13. POSSESSION ......................................................................... 9
14. ADJUSTMENTS ........................................................................ 9
15. EXPENSES ........................................................................... 10
16. DEFAULT ............................................................................ 10
17. RISK OF LOSS ....................................................................... 11
18. BROKERS ............................................................................ 12
19. FEE PROPERTIES "AS-IS." ............................................................ 12
20. DISCLAIMER ......................................................................... 13
21. DUE DILIGENCE PERIOD; PURCHASER'S ACCESS TO FEE PROPERTIES ......................... 15
22. NOTICES AND ASSESSMENTS: TAX APPEALS ............................................... 16
23. NOTICES ............................................................................ 16
24. NO SURVIVAL ........................................................................ 17
25. FURTHER ASSURANCES ................................................................. 17
26. ESTOPPEL CERTIFICATES; SNDA ........................................................ 17
27. MISCELLANEOUS ...................................................................... 18
28. PURCHASER'S REPRESENTATIONS ........................................................ 19
29. SELLER'S REPRESENTATIONS ........................................................... 19
30. INDEMNIFICATION .................................................................... 20
31. CONFIDENTIALITY .................................................................... 21
32. NO OFFER ........................................................................... 21
33. NO LIABILITY ....................................................................... 21
-i-
AGREEMENT
THIS AGREEMENT ("Agreement"), made as of March __, 2002, between BANK
OF AMERICA, N.A., a national banking association, having an address at
NC1-007-52-02, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Seller") and AMERICAN FINANCIAL RESOURCE GROUP, LLC, a Delaware limited
liability company, having an address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
Preliminary Statement
WHEREAS, Seller owns various real properties more particularly
described on Exhibit A attached hereto; and
WHEREAS, Seller desires to sell to Purchaser those Fee Properties
(defined herein) and Purchaser desires to purchase such Fee Properties from
Seller, all on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), Seller and Purchaser, intending
to be legally bound hereby, agree as follows:
1. Defined Terms. The following terms shall have the meanings set
forth below when used in this Agreement:
(a) "Additional Compensation" shall have the meaning give such
term in the Retained Premises Lease (defined below).
(b) "Gross Operating Expenses" mean the actual operating expenses
of a Fee Property, annualized on any reasonable basis determined by Purchaser,
including without limitation the following items: (i) operating expenses as set
forth in each of the Leases (defined below); (ii) reserves, including without
limitation, reserves for tenant improvements, leasing commissions, and repairs;
and (iii) debt service expenses, including without limitation payments of
principal and interest and contributions to lender required escrows, reserves,
and holdbacks. For purposes of calculating Gross Operating Expenses, debt
service expenses shall be limited to those expenses for debt service equal to no
more than eighty percent (80%) of the fair market value of a Fee Property.
(c) "Gross Operating Income" means the sum, annualized on any
reasonable basis determined by Purchaser, of all monthly base and additional
rent under the Leases for a Fee Property with tenants in occupancy and paying
rent for the previous calendar year. For purposes of calculating Gross Operating
Income, rent and income from temporary or month-to-month tenant, or from tenant
operating under bankruptcy protection will be included in Property Income only
to the extent that such rent and income is actually received by Purchaser.
(d) "Cumulative Cash Flow" means Gross Operating Income reduced
by Gross Operating Expenses.
(e) "Due Diligence Period" means the period that ends seventy-
five (75) days after the date this Agreement is executed by Purchaser and
Seller.
(f) "Fee Property" or "Fee Properties" mean one or more real
properties identified on Exhibit A attached hereto, including the buildings,
structures, improvements and fixtures located thereon.
(g) "Jonesboro" means that certain leasehold property located at
_____________, Jonesboro, Arkansas.
(h) "Leases" means those leases for tenant's occupying space in
the Fee Properties as set forth on the Rent Roll (defined below) and including
the Retained Premises Lease.
(i) "Makewhole Payment" means for each Fee Property, the sum
payable in accordance with Section 6(a) and identified as the "Makewhole
Payment" on Exhibit A attached hereto.
(j) "Rent Roll" means the rent roll attached hereto as Exhibit K.
(k) "Retained Premises" means the aggregate rentable square feet
located in the Fee Properties as allocated to each Fee Property as set forth on
Exhibit B leased by Seller from Purchaser pursuant to the terms of the Retained
Premises Lease.
(l) "Retained Premises Lease" shall have the meaning given such
term in Section 7(a).
2. [Intentionally Omitted].
3. Sale and Purchase of Fee Properties. On the terms and conditions
hereinafter provided, Seller shall convey to Purchaser, and Purchaser shall
acquire from Seller, Seller's right, title and interest in and to all Fee
Properties, provided that Purchaser shall not be obligated to acquire, nor shall
Seller be obligated to sell, any Fee Properties withdrawn from this Agreement
because Seller elects not (or otherwise fails) to remediate an identified
environmental condition as expressed in Section 21(b) below. In addition to the
foregoing, on the Settlement Date, Purchaser shall assume the leasehold
obligations of Jonesboro. The assumption by Purchaser of the leasehold
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obligations of Jonesboro shall be made in accordance with the terms and
conditions of that certain Agreement dated November 22, 2000, as amended,
between Seller and Purchaser.
4. Fee Properties - Real and Personal Assets.
(a) The conveyance to Purchaser by Seller of each Fee Property
shall include Seller's fee interest in all those certain identified tracts or
parcels of land ("Parcels") with the buildings ("Buildings"), and all other
improvements erected on the Parcels and fixtures and equipment attached thereto,
all building, plans, licenses and permits to the extent transferable, and
warranties and guaranties to the extent transferable, together with all rights,
privileges, tenements, hereditaments, rights of way, easements, appendages and
appurtenances of such land, but specifically excluding, the existing teller
counters, drive-through facilities and equipment, safe deposit boxes, bank
vaults and the wiring for the security systems, the Automated Teller Machine
("ATM") machines connected to or located within the Buildings or situated as
freestanding structures on the Parcels, alarms and security equipment,
telecommunication equipment, computers, computer terminals and computer
equipment, supplies, documents, records, cash and coin, any office equipment
(whether leased or owned) located in the Buildings including, without
limitation, furniture, furnishings and artwork, and any personal property
belonging to any tenant occupying any portion of the Fee Property.
(b) Prior to the Settlement Date, Seller and Purchaser shall
identify any and all fixtures, equipment and other personal property included as
part of such Fee Property (collectively, "Personal Property") and allocate a
portion of the Purchase Price (as hereinafter defined) for such Fee Property to
the value of the Personal Property. If the parties cannot agree upon an
appropriate allocation, they shall retain Price Waterhouse Consulting or another
qualified consultant agreed to by Seller and Purchaser to advise them as to the
proper allocation of the Purchase Price. The cost of the allocation and
valuation report shall be divided equally by Seller and Purchaser and the
conclusions contained in the allocation and valuation report shall be binding on
Purchaser and Seller.
5. Purchase Price. The purchase price ("Purchase Price") of the Fee
Properties shall be _________ Dollars ($________). The Purchase Price shall be
allocated among each Fee Property as set forth on Exhibit D attached hereto.
6. Additional Purchase Price Payment on Resale of Fee Properties.
(a) As a material inducement for Purchaser to enter into the
Retained Premises Lease, Seller shall pay to Purchaser the Makewhole Payment.
The Makewhole Payment for each Fee Property shall be paid to Purchaser in
twenty-four (24) equal and consecutive monthly installments after the Settlement
Date. The first monthly installment of the Makewhole Payment shall be due on the
first day of the first calendar month after the Settlement Date and shall
continue
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on the first day of each subsequent calendar month until the Makewhole Payment
is paid in full to Purchaser. If Seller fails to pay all or any portion of an
installment of the Makewhole Payment within ten (10) days of the date that such
installment is due, Seller shall pay Purchaser a late charge equal to five
percent (5%) of that portion of the installment that is outstanding.
Installments of Makewhole Payments that remain unpaid for more than thirty (30)
days after their due date shall accrue interest at the rate equal to one and
one-half percent (1.5%) per month.
(b) On the date that is twenty-seven (27) months after the
Settlement Date, Purchaser shall pay a one-time payment to Seller calculated in
accordance with this Section 6(b) (the "Profit Sharing Payment"). The Profit
Sharing Payment shall equal one half of the Cumulative Cash Flow for the period
of time starting on the Settlement Date and ending twenty-four (24) months
thereafter (the "Initial Period"). The Profit Sharing Payment shall be
calculated on the Cumulative Cash Flow produced from Fee Properties owned by
Purchaser at the end of the Initial Period. Within thirty (30) days after the
end of the Initial Period, Purchaser shall calculate the Cumulative Cash Flow
for the Initial Period and deliver a copy of Purchaser's determination of
Cumulative Cash Flow to Seller. Seller shall have thirty (30) days to review
Purchaser's calculation of the Profit Sharing Payment ("Seller's Review
Period"). If Seller disagrees with Purchaser's determination of the Profit
Sharing Payment, Seller shall notify Purchaser in writing before the expiration
of Seller's Review Period and shall specify Seller's objections to Purchaser's
calculation. Upon receipt of Seller's objection, Purchaser shall have the
calculation of the Profit Sharing Payment reviewed by Purchaser's certified
public accountants, whose determination shall be binding on Purchaser and
Seller. Notwithstanding anything to the contrary contained in this Section 6(b),
if Seller requests the review of the Profit Sharing Payment by Purchaser's
certified public accountants, Purchaser shall not be obligated to pay the Profit
Sharing Payment until fifteen (15) days after the decision of Purchaser's
certified public accountants.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the provisions of this Section 6 shall survive Settlement until such
time as all payments have been made as herein required.
7. Retained Premises Lease; Additional Compensation.
(a) Seller and Purchaser acknowledge that Seller currently
occupies space in a portion of the Fee Properties and following Settlement will
continue to occupy space in the Retained Premises. In connection with the
execution of this Agreement, Seller, as tenant, and Purchaser, as landlord,
shall enter into a Lease Agreement for the Retained Premises in the form
attached as Exhibit C of this Agreement (the "Retained Premises Lease). Seller
and Purchaser agree to negotiate the terms of the Retained Premises Lease in
good faith. If Seller and Purchaser are unable to agree upon the terms and
conditions of the Retained Premises Lease prior to the expiration of the Due
Diligence Period, Purchaser may terminate this Agreement by delivering notice to
Seller prior to the expiration of the Due Diligence Period.
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(b) As a material inducement for Purchaser to enter into the
Retained Premises Lease, Seller shall pay to Purchaser the Additional
Compensation set forth in the Retained Premises Lease. The first monthly
installment of Additional Compensation shall be due on the first day of the
first calendar month after the Settlement Date and shall continue on the first
day of each subsequent calendar month until the Additional Compensation is paid
in full to Purchaser. If Seller fails to pay all or any portion of an
installment of Additional Compensation within ten (10) days of the date that
such installment is due, Seller shall pay Purchaser a late charge equal to five
percent (5%) of that portion of the installment that is outstanding.
Installments of Additional Compensation that remain unpaid for more than thirty
(30) days after their due date shall accrue interest at the rate equal to one
and one-half percent (1.5%) per month. If the Seller elects to increase or
decrease the size of the Retained Premises (as permitted under the Retained
Premises Lease), Purchaser or Seller may request that the Additional
Compensation be adjusted to reflect the change in the size of the Retained
Premises. The provisions of this Section 7(b) shall survive Settlement until
such time as Seller has paid the Additional Compensation to Purchaser in full.
8. Settlement. Settlement shall be the meeting at which Seller
transfers ownership of the Fee Properties to Purchaser by deed and Purchaser
pays the Purchase Price (as adjusted in accordance with this Agreement) to
Seller ("Settlement"). Settlement shall occur on the later of (a) sixty (60)
days after the expiration of the Due Diligence Period, or (b) May 15, 2002
("Settlement Date"). Settlement shall occur at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, Pennsylvania, or at such other
place as Seller and Purchaser may mutually agree, commencing at 10:00 AM on the
Settlement Date. Notwithstanding anything to the contrary contained in this
Section 8, Purchaser, at Purchaser's election, may complete Settlement on one or
more Fee Properties before the Settlement Date by delivering written notice to
Seller of Purchaser's election to complete Settlement before the Settlement Date
for the Fee Properties identifies in Purchaser's notice to Seller.
9. Title.
(a) As to each Fee Property, the title conveyed shall be good and
indefeasible and such as will be insured by any reputable title insurance
company at regular rates, free and clear of all liens, judgments and similar
encumbrances, subject however to:
(i) the state of facts shown on an accurate survey of the
Fee Property, other than a matter which would constitute an Objection (as
hereinafter defined) that Purchaser does not waive pursuant to Section 9(c)
below;
(ii) zoning regulations, municipal building restrictions
and all other laws, ordinances, regulations and restrictions of any duly
constituted public authority enacted prior to the Settlement Date;
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(iii) grants to governmental entities or to utility and/or
power companies, the right of the public in sidewalks and abutting public
rights-of-way, and easements given to the public for water course maintenance,
slope rights or sight rights;
(iv) the lien of current taxes and assessments not yet due
and payable;
(v) special taxes and assessments becoming a lien on or
after the Settlement Date;
(vi) if applicable, the Leases, and any other leases of the
Fee Property entered into with Purchaser's consent pursuant to Section 10(b)
below;
(vii) standard exceptions set forth in the form of title
insurance policy of the title insurance company selected by Purchaser; and
(viii) any other matter which would constitute an Objection
(as hereinafter defined) that Purchaser waives pursuant to Section 9(c) below,
provided that with respect to any Monetary Objection (as hereinafter defined)
against Seller, same shall not constitute an Objection if a title insurance
company authorized to do business in the state in which the affected Fee
Property is located agrees that it will insure title free of such Monetary
Objection or with affirmative insurance against the enforcement of such Monetary
Objection against the affected Fee Property, and such removal or affirmative
coverage does not require Purchaser to defend an action brought on any such
judgment.
(b) The term "Objection" shall mean any matter shown on the survey
obtained by Purchaser or which would be shown on a current survey or any
covenant, easement, restriction or other title defect or encumbrance (including
any lien), other than the matters referred to in Section 9(a) above, which
renders title to the Fee Property either unmarketable or uninsurable at regular
rates, materially reduces the value of the Fee Property or impairs or restricts
its use for the uses contemplated by the Purchaser.
(c) As to each Fee Property, Purchaser shall order, at Purchaser's
expense, a title commitment from a title insurance company authorized to do
business in the state in which such Fee Property is located and, if so desired
by Purchaser, a survey. Prior to the expiration of the Due Diligence Period,
Purchaser shall deliver to Seller a copy of the title commitment and, if
applicable, survey for such Fee Property, along with written notice of any
Objection ("Title Objection Notice") to Seller. Purchaser shall be deemed to
have waived any Objection existing on the last day of the Due Diligence Period
and not specified in the Title Objection Notice.
(d) Seller shall have no obligation to bring any action or
proceeding or otherwise
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to incur any expense or liability (contingent or otherwise) to remedy an
Objection; provided, however, that if an Objection is a monetary lien, judgment
or encumbrance of an ascertainable amount (a "Monetary Objection"), Seller shall
be obligated at or prior to the Settlement Date, to cause such Monetary
Objection to be satisfied or to cause the title insurance company to insure
title free of such Monetary Objection or with affirmative insurance against the
enforcement of such Monetary Objection by delivery of an acceptable indemnity.
If Seller is unable to convey title to a Fee Property in accordance with this
Agreement or does not elect to remedy an Objection (other than a Monetary
Objection), Purchaser may elect either (i) to accept such title as Seller is
able to convey at Settlement, without any reduction of the Purchase Price or any
credit or allowance on account thereof or any other claim against Seller, or
(ii) to terminate this Agreement as to such Fee Property. Such election shall be
made by Purchaser within ten (10) days after written notice from Seller to
Purchaser stating that Seller is unable to convey title in accordance with this
Agreement or does not elect to remedy an Objection (other than a Monetary
Objection), such notice from Seller to be given within ten days after its
receipt of the Title Objection Notice, in which event this Agreement shall be
null and void as to such Fee Property and the parties shall have no further
liabilities or obligations hereunder with respect to that Fee Property only, but
in all other respects this Agreement shall continue in full force and effect as
to all of the other Fee Properties.
(e) Although Seller is not obligated to do so, Seller shall have
the right to remedy any Objection with respect to a Fee Property on written
notice given to Purchaser within ten (10) days after Seller's receipt of the
Title Objection Notice. For the purpose of remedying an Objection, Seller shall
have the right to one or more adjournments of the Settlement for such Fee
Property for an aggregate period not to exceed forty-five (45) days. If Seller
fails to remedy the Objection prior to the adjourned Settlement, the provisions
of Section 9(d) above shall be applicable, and Seller shall be deemed to have
elected not to remedy the Objection.
(f) The sale includes whatever right, title and interest Seller
has in and to the equipment and fixtures presently on each Fee Property which
are appurtenant to or used in the operation thereof (subject to the exclusions
set forth in Section 4 above). Seller makes no representations as to the
quality, kind or condition thereof, and Purchaser agrees to take the same
"WHERE-IS" and "AS-IS."
10. Service and Maintenance Contracts.
(a) Seller has entered into certain maintenance and service
contracts for certain of the Fee Properties, all of which shall be terminated at
or prior to the Settlement for each such Fee Property. Seller shall indemnify,
defend and hold Purchaser harmless from and against all claims for payment by
such contractors for services with respect to such Fee Property rendered prior
to the date of the Settlement for such Fee Property. The foregoing provisions of
this Section 10(a) shall survive the Settlement for such Fee Property and
delivery of the Deed (as hereinafter defined) or Assignment (as hereinafter
defined), as applicable.
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(b) Seller hereby agrees that from and after the date hereof,
Seller shall not enter into any leases of or contracts for any Fee Property, the
term of which leases or contracts extend beyond the Settlement for such property
without Purchaser's prior written consent, which consent may be given or
withheld in Purchaser's sole discretion.
11. Documents to be Delivered by Seller at Settlement. At Settlement,
Seller shall deliver to Purchaser:
(a) for each Fee Property, the customary form of special or
limited warranty deed (such that Seller shall only warrant for claims arising
by, through or under Seller, but none others) for the state for which the Fee
Property is located (collectively, the "Deeds") shall be duly executed by
Seller, be in form for recordation, and be accompanied by completed realty
transfer tax forms;
(b) for each Fee Property, an assignment and assumption of leases
in the form attached hereto as Exhibit E ("Assignment"), pursuant to which
Seller shall assign and Purchaser shall assume Seller's interest as lessor in
the Leases;
(c) ▇▇▇▇ of sale in the form attached hereto as Exhibit F ("▇▇▇▇
of Sale"), pursuant to which Seller shall sell and transfer the personal
property at each Fee Property subject to this Agreement to Purchaser;
(d) a closing statement showing the applicable Settlement
adjustments, duly executed by Seller;
(e) FIRPTA affidavit in the form attached hereto as Exhibit G and
the customary form of mechanic's lien and possession affidavit, each duly
executed by Seller, together with such documents and other evidence as is
reasonably required by Purchaser's title insurance company to establish that
Seller is authorized to execute the closing documents;
(f) a Certificate of Seller in the form attached hereto as Exhibit
H, confirming the truth, accuracy and completeness of the representations and
warranties of Section 29 hereof with respect to Seller;
(g) a certified copy of the Bylaws adopted by the Board of
Directors of Seller confirming the authority of certain officers to execute
documents and a certified statement of incumbency of the officer of Seller
executing the documents described in this Section 11; and
(h) originals, to the extent in Seller's possession, of surveys,
permits, licenses,
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leases, subleases, warranties and guarantees covered by this Agreement.
12. Documents to be Delivered by Purchaser at Settlement. At Settlement
on each Fee Property, Purchaser shall deliver to Seller:
(a) the Purchase Price as described in Section 5, as adjusted
pursuant to Sections 14, 15, 17 and 21(c), by wire transfer of immediately
available funds;
(b) the Assignment described in Section 11(b) above duly executed
by Purchaser;
(c) a closing statement showing the applicable Settlement
adjustments, duly executed by Purchaser; and
(d) a Certificate of Purchaser or Purchaser's permitted assignee,
in the form attached hereto as Exhibit I, confirming the truth, accuracy and
completeness of the representations and warranties of Section 28 hereof with
respect to Purchaser or such assignee, as applicable, and duly executed by
Purchaser or Purchaser's permitted assignee.
13. Possession. At Settlement on each Fee Property, Seller shall give
Purchaser possession of the Fee Property in broom clean condition, free and
clear of all tenants except for the Leases and such other permitted leases
pursuant to Section 10(b).
14. Adjustments.
(a) At Settlement, Purchaser and Seller shall adjust for real
estate taxes and assessments on the Fee Property, municipal water and sewer
charges, fuel, utility charges, rent, and lease liabilities, such adjustments to
be calculated as of 11:59 PM on the day immediately preceding Settlement. In
addition, Seller shall account to and turn over to Purchaser any and all
security deposits paid by existing tenants of the Fee Property. Prior to the
Settlement, Seller shall have paid all service providers under the service and
maintenance contracts for the Fee Property for services rendered up to the day
prior to the Settlement. If the Settlement shall occur before the tax rate or
assessed valuation of the subject Fee Property is fixed for the then-current
year, the apportionment of real estate taxes for the year of Settlement shall be
upon the basis of the most recent tax bills and the tax rate for the most recent
tax year applied to the latest assessed valuation. There shall be no
post-Settlement reconciliations or reprorations.
(b) All rents (including operating expense reimbursements and
similar charges (collectively, "Tenant Pass-Throughs"), credits, security
deposits and set-offs due or required to
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be paid under or by reason of the Leases shall be adjusted by appropriate credit
to the Purchaser on the Settlement Date. Tax contributions shall be pro-rated as
and when received. If, at the Settlement Date, any tenant is in arrears in the
payment of rents, Seller will disclose the same to Purchaser in writing and such
amounts shall not be adjusted on the Settlement Date. Prior to the Settlement
Date, Seller shall use Seller's current business practices to collect such
arrearages. If Purchaser shall collect any such arrearages within six (6) months
after the Settlement Date, then Purchaser shall turn over to Seller the
arrearages so collected, less the reasonable cost of collection thereof;
provided, however, Seller may continue to seek to collect the arrearages by
legal action following the Settlement Date. All rents collected by Purchaser
after the Settlement Date (except for amounts specifically billed and paid as
end of year reconciliation payments for Tenant Pass-Throughs, which shall be
separately accounted for and allocated, pro rata, between Seller and Purchaser
as their interest may appear) shall be first applied to rents payable after the
Settlement Date and only the excess thereof shall be paid over to Seller on
account of the arrearages. To the extent that items to be apportioned hereunder
may be required to be paid directly by a tenant under its Lease, same shall not
be apportioned, provided, however, that such items shall have been paid by such
tenant currently through the month including the Settlement Date.
(c) Seller shall pay at or prior to Settlement all brokerage fees
and commissions for existing Leases entered into prior to the date hereof. If
Settlement takes place, all brokerage fees and commissions, if any, for
renewals, extensions and expansions of existing Leases exercised after the date
hereof, and for new Leases and modifications of existing Leases entered into
after the date hereof and approved by the Purchaser as provided in Section 10(b)
above, shall be paid by the Purchaser.
15. Expenses. Subject to the last sentence of this Section 15, at
Settlement, Purchaser shall pay the realty transfer taxes applicable to the
conveyance of the Fee Properties, if any, all title insurance search fees and
premiums, and all escrow and closing charges of the settlement or closing agent.
Seller shall pay any recording fees for the satisfaction of any mortgages, liens
or judgments affecting the Fee Property and Purchaser shall pay all recording
fees in connection with the conveyances of the Fee Properties. Each party shall
bear all other fees, charges and expenses incurred by it, without contribution
from the other, in connection with this transaction. Except as specifically set
forth in this Section 15, Seller's portion of the realty transfer taxes, title
insurance searches and premiums and any other usual and customary closing costs
of charges payable by Seller according to local custom for the state in which
the Fee Property is located shall be paid in twelve equal monthly installments
by Seller as additional rent under the Retained Premises Lease.
16. Default.
(a) If Seller materially breaches this Agreement prior to or at
Settlement, and if such default continues for more than ten (10) business days
following written notice thereof to Seller, the sole liability of Seller shall
be and the sole remedy of Purchaser shall be limited to either (i) payment to
Purchaser, as liquidated damages, for each Fee Property for which Settlement has
not
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occurred and for which Purchaser has performed some or all of its investigations
pursuant to Sections 9 and 21, the sum equal to Purchaser's actual, reasonable
out-of-pocket costs and expenses incurred subsequent to the date of this
Agreement (to the extent documented to Seller's reasonable satisfaction by
copies of paid invoices and bills and canceled checks) for title, survey and
other due diligence reports and evaluations, whereupon Purchaser shall deliver
to Seller complete copies (with all appendices and exhibits) of all (interim
drafts as well as final reports, if any) due diligence reports, evaluations,
investigations, surveys and title searches in Purchaser's possession or control
(without representation or warranty and with a disclaimer of reliance), and this
Agreement shall become null and void and the parties shall have no further
liabilities or obligations hereunder; or (ii) a suit by Purchaser for specific
performance only.
(b) If Purchaser materially breaches this Agreement prior to or at any
Settlement, and if such default continues for more than ten (10) business days
following written notice thereof to Purchaser, Seller shall be entitled to
terminate this Agreement (either in its entirety or, at Seller's election, only
as to the Fee Properties for which Settlement did not occur as a result of
Purchaser's breach) and to receive liquidated damages in an amount equal to 10%
of the Purchase Price for each Fee Property which Purchaser fails to make
Settlement, provided that (i) except as provided in subsection (d) below, in no
event shall the amount of Purchaser's liability hereunder exceed, in the
aggregate, $100,000 and (ii) notwithstanding an election by Seller to terminate
this Agreement in its entirety as a result a material breach hereof by
Purchaser, Purchaser shall nevertheless remain entitled and obligated to
complete Settlement on all Fee Properties and Seller shall only be entitled to
receive liquidated damages as aforesaid for Fee Properties if, as and when
Purchaser fails to complete Settlement thereon as required hereby. In addition,
Purchaser shall deliver to Seller complete copies (with all appendices and
exhibits) of all (interim drafts as well as final reports, if any) due diligence
reports, evaluations, investigations, surveys and title searches in Purchaser's
possession or control (without representation or warranty and with a disclaimer
of reliance). The provisions of this subparagraph (b) shall survive the
expiration or earlier termination of this Agreement. The parties acknowledge
that the aforesaid liquidated damages are reasonable and do not constitute a
penalty and are being agreed upon due to the difficulty of calculating the
actual amount of damages that Seller might sustain in the event of a default by
Purchaser and termination of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section
16(a), in the event Seller's breach is caused by or arises out of regulatory
issues, Seller shall have no liability whatsoever to Purchaser; this Agreement
shall become null and void as to such affected Fee Properties only, and the
parties shall have no further liabilities or obligations hereunder with respect
to such affected Fee Properties; and this Agreement shall continue to be
effective as to the remaining Fee Properties and the Purchase Price shall be
adjust to reflect the Seller's inability to convey the affected Fee Properties.
17. Risk of Loss. If a condemnation proceeding is instituted against a
Fee Property or any portion thereof, or if a Fee Property is substantially
damaged by fire or other casualty, prior to Settlement, Purchaser may terminate
this Agreement as to such Fee Property upon written notice to
11
Seller, whereupon the parties shall have no further liabilities or obligations
hereunder with respect to such Fee Property, but this Agreement shall continue
in full force and effect as to the remaining Fee Properties. If Purchaser does
not so terminate this Agreement as to a Fee Property in the case of condemnation
or substantial damage by fire or other casualty, or if in the case of fire or
other casualty to a Fee Property there is less than substantial damage, then in
each of such cases, this Agreement shall continue to be effective as to such Fee
Property, and Seller shall assign to Purchaser at Settlement all of Seller's
right to receive any award for such condemnation or insurance proceeds as a
result of such damage (as the case may be), together with all of Seller's rights
to litigate such claim and to negotiate a settlement with the condemning
authority or the insurance carrier; provided, however, to the extent Seller
self-insures (including a deductible or any under-insured amount) against a
casualty, then the Purchase Price for the affected Fee Property shall be
adjusted to reflect a credit in favor of Purchaser for the amount of such
under-insured amount. For purposes of this Section, a Fee Property shall be
deemed to have been "substantially damaged" if such damage occurs at a Fee
Property that Seller is responsible to restore and such restoration either will
require more than one-hundred twenty (120) days to complete or will cost in
excess of twenty-five percent (25%) of the Purchase Price of such Fee Property.
Seller agrees to maintain its current property insurance policies on the Fee
Properties during the pendency of this Agreement.
18. Brokers. Each party represents and warrants to the other that it
has not dealt with any real estate broker, agent or finder in connection with
this Agreement or the negotiation, renewal or extension of the Leases. The
parties agree to indemnify and hold one another harmless based upon their
actions and dealings from any claims or causes of action concerning brokerage or
finder's fees or commissions. If any claim against Seller is asserted by any
person, firm or corporation claiming a commission and/or finder's fee with
respect to the transactions contemplated by this Agreement, and resulting from
any act, representation or promise of Purchaser, Purchaser shall indemnify,
defend and save harmless Seller from such claim resulting from any act,
representation or promise of Purchaser. If any claim against Purchaser is
asserted by any person, firm or corporation claiming a commission and/or a
finder's fee with respect to the transactions contemplated by this Agreement,
and resulting from any act, representation or promise of Seller, Seller shall
indemnify, defend and save harmless Purchaser from such claim resulting form any
act, representation or promise of Seller. The terms of this Section 18 shall
survive the Settlement on each Fee Property and the delivery of the Deed or
Assignment, as applicable, and shall survive the expiration or earlier
termination of this Agreement.
19. Fee Properties "AS-IS." Purchaser either (a) has heretofore
inspected each of the Fee Properties, or caused an inspection thereof to be made
on Purchaser's behalf, or (b) will have done so prior to the end of the Due
Diligence Period (as hereinafter defined) or (c) will have waived its right to
do so as hereinbelow set forth, so that, by the end of the Due Diligence Period
(as hereinafter defined), Purchaser shall be (or shall have had the opportunity
to become) acquainted with the condition of the Fee Properties and the
improvements located therein. Purchaser agrees to take the Fee Properties
"AS-IS," "WHERE-IS," and in their present condition, subject to reasonable use,
wear and tear, and (subject to Section 17 above) damage by fire and other
casualties, and (subject to Section 17 above) due to a taking by condemnation or
eminent domain, between the date hereof and the Settlement on each of the Fee
Properties. Until the Settlement, Seller agrees to
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maintain each Fee Property in its present condition, reasonable wear and tear
excepted.
20. Disclaimer.
(A) PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE WARRANTY OF TITLE AS SET OUT IN THE DEED), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF ANY
FEE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (B)
THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE FEE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANYONE ELSE MAY
CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE FEE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY FEE PROPERTY; (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
ANY FEE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
ANY FEE PROPERTY; OR (H) ANY OTHER MATTER WITH RESPECT TO ANY FEE PROPERTY, AND
SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION, ZONING OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING THE EXISTENCE IN OR ON ANY FEE PROPERTY OF HAZARDOUS MATERIALS (AS
DEFINED BELOW). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN
GIVEN THE OPPORTUNITY TO INSPECT EACH FEE PROPERTY, PURCHASER IS RELYING SOLELY
ON ITS OWN INVESTIGATION OF EACH FEE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO EACH FEE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER
IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO EACH FEE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. ALL PROVISIONS OF THIS ARTICLE SHALL SURVIVE SETTLEMENT
OR THE EXPIRATION
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OR EARLIER TERMINATION OF THIS AGREEMENT WITHOUT SETTLEMENT, AS APPLICABLE.
(B) "Hazardous Materials" shall mean any substance which is or
contains (i) any "hazardous substance" as now or hereafter defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. ss.9601 et. seq.) "CERCLA") or any regulations promulgated
under or pursuant to CERCLA; (ii) any "hazardous waste" as now or hereafter
defined in the Resource Conservation and Recovery Act, as amended (42 U.S.C. ss.
6901 et seq.) ("RCRA") or regulations promulgated under or pursuant to RCRA;
(iii) any substance regulated by the Toxic Substances Control Act, as amended
(15 U.S.C. ss. 2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum
hydrocarbons; (v) asbestos and asbestos containing materials, in any form,
whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas;
and (viii) any additional substances or materials which are now or hereafter
classified or considered to be hazardous or toxic under Environmental
Requirements (as hereinafter defined) or the common law, or any other applicable
laws relating to each Fee Property. Hazardous Materials shall include, without
limitation, any substance, the presence of which on each Fee Property, (A)
requires reporting, investigation or remediation under Environmental
Requirements; (B) causes or threatens to cause a nuisance on the Fee Property or
adjacent property or poses or threatens to pose a hazard to the health or safety
of persons on the Fee Property or adjacent property; or (C) which, if it
emanated or migrated from the Fee Property, could constitute a trespass.
(C) "Environmental Requirements" shall mean all laws, ordinances,
statutes, codes, rules, regulations, agreements, judgments, orders, and decrees,
now or hereafter enacted, promulgated, or amended, of the United States, the
states, the counties, the cities, or any other political subdivisions in which
the Fee Property is located, and any other political subdivision, agency or
instrumentality exercising jurisdiction over the owner of the Fee Property, the
Fee Property or the use of the Fee Property, relating to pollution, the
protection or regulation of human health, natural resources, or the environment,
or the emission, discharge, release or threatened release of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or waste
or Hazardous Materials into the environment (including, without limitation,
ambient air, surface, water, ground water or soil).
(D) Purchaser acknowledges that, subject to the termination rights
set forth in Section 21(b), Purchaser shall accept all Fee Properties (including
all improvements located thereon) at Settlement in their AS IS physical
condition WITH ALL FAULTS, including, without limitation, with the presence of
Hazardous Materials thereon or therein. Purchaser, on behalf of itself and its
successors and assigns, hereby waives, releases, acquits and forever discharges
Seller its current and former officers, directors, shareholders, employees,
agents, attorneys, representatives, and any other persons acting on behalf of
Seller and the successors and assigns of any of the preceding, of and from any
and all claims, actions, causes of action, demands, rights, damages, costs,
expenses or compensation whatsoever, direct and indirect, known or unknown,
foreseen or unforeseen, which Purchaser or its successors or assigns now has or
which may arise in the future on account of or in any way related to or in
connection with any past, present, or future physical
14
characteristic or condition of each Fee Property or the improvements thereon,
including, without limitation, any Hazardous Materials in, at, on, under or
related to the Fee Property or the improvements thereon or any violation or
potential violation of any Environmental Requirement applicable thereto and
further including, without limitation, any claim for contribution or
indemnification arising under any Environmental Requirements, common law or
otherwise. Notwithstanding anything to the contrary set forth herein, this
release shall survive the Settlement and the expiration or earlier termination
of this Agreement.
21. Due Diligence Period; Purchaser's Access to Fee Properties. During
the Due Diligence Period, Purchaser shall be granted access to each of the Fee
Properties in order to perform such due diligence review and analysis of the Fee
Properties as Purchaser deems necessary including, without limitation, to
investigate, review, survey and physically inspect each Fee Property, to obtain
a title search and survey, to conduct Phase I environmental studies and
engineering studies of each Fee Property as described below, and to review the
leases being assigned to Purchaser.
(a) During the Due Diligence Period for each Fee Property, as same
may be extended with respect to such Fee Property pursuant to Sections 21(b) and
(c) hereof, Purchaser, its employees and agents, at Purchaser's sole cost and
expense, shall have the right to enter upon such Fee Property to inspect such
Fee Property. Purchaser shall give Seller prior written notice of its entry upon
the Fee Property and shall coordinate such entry and inspection with Seller so
that the entry is at a mutually convenient time. Prior to each such entry,
Purchaser shall provide certificates of insurance to Seller evidencing liability
insurance in the minimum amount of $2,000,000.00 combined per occurrence limit
carried by Purchaser and/or Purchaser's agents in order to insure any loss
arising out of or in connection with entry upon the Fee Property. The aforesaid
insurance shall be issued by an insurance company licensed in the state where
the Fee Property is located and said insurance company shall be acceptable to
Seller. Upon completion of any inspections, Purchaser, shall restore the Fee
Property to the condition in which it existed prior to said inspections.
Purchaser shall and hereby does indemnify, defend, and save harmless Seller from
and against any and all claims arising out of the entry on and inspection of
each and every Fee Property by Purchaser and/or Purchaser's employees and
agents, including, without limitation, Seller's attorneys' fees and costs.
Notwithstanding anything contained in this Agreement to the contrary, the terms
of this subsection shall survive (i) Settlement on such Fee Property and the
delivery of the Deed, (ii) the termination of this Agreement as to such Fee
Property and (iii) the expiration or earlier termination of this Agreement.
(b) Prior to the expiration of the Due Diligence Period for each
Fee Property, if Purchaser's environmental consultant, based on records and
other documentation obtained during its Phase I environmental investigation
("Phase I Study"), determines that a Phase II environmental study ("Phase II
Study") is necessary with respect to such Fee Property, Purchaser shall either
perform the Phase II Study at Purchaser's sole cost and expense or terminate
this Agreement as to such Fee Property within ten (10) days of Purchaser's
receipt of the Phase I Study, in which event, this Agreement shall terminate and
be null and void as to such withdrawn Fee Property, but shall
15
continue in full force and effect as to the remaining Fee Properties. If
Purchaser obtains a Phase II Study for such Fee Property and if the Phase II
Study identifies one or more environmental conditions requiring remediation,
then, within ten days after Purchaser delivers the Phase II Study to Seller,
Seller, at its sole election, shall either (i) agree to remediate and ▇▇▇▇▇ the
disclosed environmental condition(s) at Seller's sole cost and expense in
conformity with all applicable Environmental Requirements or (ii) withdraw such
Fee Property from this Agreement, and in the latter event, this Agreement shall
terminate and be null and void as to such withdrawn Fee Property, but shall
continue in full force and effect as to the remaining Fee Properties. Unless
Seller notifies Purchaser during such ten-day period of Seller's election to
remediate and ▇▇▇▇▇ the disclosed environmental condition(s), Seller shall be
deemed to have elected to withdraw the Fee Property from this Agreement as
expressed in clause (ii) above. Unless the Fee Property is withdrawn from this
Agreement by Seller as aforesaid, the Due Diligence Period and Settlement
automatically shall be extended for such time as is necessary for Seller or
Purchaser, as applicable, to complete the environmental investigations and
remediations described above. In the event of a withdrawal of a Fee Property
pursuant to this subparagraph or a termination of this Agreement as provided
herein as to such Fee Property, Purchaser shall be solely responsible for all of
Purchaser's due diligence and investigation costs and expenses.
(c) [Intentionally Omitted].
(d) Within five (5) days following the execution date of this
Agreement, Seller shall make available to Purchaser for inspection and copying
at Purchaser's expense all documents and records relating to the Fee Property
which to Seller's best knowledge, Seller has in its possession, such documents
to be made available to Purchaser at the location or locations where such
documents are kept in the ordinary course of Seller's business.
22. Notices and Assessments: Tax Appeals.
(a) Seller shall (i) comply with the requirements of any and all
notices relating to each Fee Property which may be issued by municipal or other
public authorities prior to the date of this Agreement and (ii) pay for all work
and improvements done or ordered to be done prior to the date of this Agreement
by any such authority which results in the imposition of a confirmed lien
against a Fee Property prior to Settlement. If Settlement takes place as to such
Fee Property, all other requirements and notices shall be complied with by
Purchaser and all other work or improvements done or ordered done shall be
performed and paid for Purchaser.
(b) Seller agrees that from and after Seller's execution of this
Agreement that Seller will not file any real estate tax assessment appeal with
respect to any Fee Property prior to Settlement on such Fee Property without
Purchaser's prior written consent.
23. Notices. All notices hereunder shall be in writing and shall be
deemed to have been
16
properly given if personally delivered, sent via facsimile or sent by private
overnight express carrier, such as Federal Express, next business day delivery,
charges prepaid, addressed to Seller at Bank of America, NC1-007-52-02, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; with a copy to Bank of America,
N.A., TX1-492-68-01, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇,
Esquire, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; addressed to Purchaser at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇; with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., Esquire,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇. Notices by the parties may be given on their
behalf by their respective counsel. Notice shall be deemed to have been given
upon the date of delivery, if personally delivered, or sent via facsimile or one
business day after the date of deposit if sent by private overnight express
carrier, next business day delivery.
24. No Survival. Except as otherwise provided, none of the provisions
of this Agreement shall survive any Settlement and delivery of any of the Deeds
or Assignments, as applicable.
25. Further Assurances. From time to time and at the request of either
Seller or Purchaser (whether before, at or after the Settlement for a Fee
Property), the other party shall execute, acknowledge and deliver such other and
further documents as the requesting party may reasonably request to effectuate
the provisions of this Agreement. The provisions of this Section 25 shall
survive the expiration or earlier termination of this Agreement.
26. Estoppel Certificates; SNDA.
(a) Seller shall, as tenant under the Retained Premises, execute
and deliver to Purchaser and Purchaser's lender, a tenant estoppel in
substantially the form attached as Exhibit J hereto ("Tenant Estoppel"). Within
ten (10) days of Purchaser's receipt of the Rent Roll, Purchaser shall notify
Seller in writing of those tenant's listed on the Rent Roll that Purchaser shall
require a Tenant Estoppel and Seller shall use commercially reasonably efforts
to obtain and deliver to Purchaser and Purchaser's lender, Tenant Estoppels
executed by at least eighty-five percent (85%) of the tenants under the Leases
identified by Purchaser in Purchaser's notice, provided that Seller obtains and
delivers to Purchaser and Purchaser's lender, at least one Tenant Estoppel from
a tenant in each Fee Property that does not contain Retained Premises. All
Tenant Estoppels shall be dated no earlier than thirty (30) days prior to the
Settlement Date. Seller shall not be deemed to have satisfied its obligations
under this Subsection 26(a) unless Seller delivers to Purchaser and Purchaser's
lender, Tenant Estoppels containing no material adverse discrepancies from the
information set forth on the rent roll attached as Exhibit K hereto.
(b) Seller shall, as tenant under the Retained Premises, execute
and deliver to Purchaser a Subordination, Non-Disturbance and Attornment
Agreements in the form reasonably required by Purchaser's lender ("SNDA") and
use commercially reasonable efforts to obtain and deliver to Purchaser a SNDA
from each of the Tenants under the Leases.
17
27. Miscellaneous.
(a) This Agreement shall not be recorded in the office for the
recording of deeds or in any other office or place of public record. Prior to
Settlement, this Agreement shall not be deemed or construed to give Purchaser
any equitable ownership of, or title to, any Fee Property, Fee Property.
(b) This Agreement and the exhibits attached hereto contain the
entire agreement between Seller and Purchaser and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind or nature whatsoever. This Agreement may be modified only
by an agreement in writing between the parties hereto.
(c) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, personal and legal
representatives, successors and permitted assigns; provided, however, that
Purchaser shall not assign or otherwise transfer this Agreement without the
prior written consent of Seller, which Seller may grant or deny in its sole
discretion. Notwithstanding anything to the contrary in the preceding sentence,
Purchaser, may, with Seller's prior written consent, not to be unreasonably
withheld, assign this Agreement in its entirety to a partnership, limited
liability company or corporation which is an "Affiliate" of Purchaser and in
which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is the principal. Purchaser's request for consent to the
assignment to an Affiliate must be accompanied by evidence satisfactory to
Seller of the relationship among Purchaser, such Affiliate, and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇. For purposes hereof, the term "Affiliate" shall mean a partnership,
limited liability company, or corporation that is owned by or is under common
control and ownership with, Purchaser. In no event shall any assignment of this
Agreement relieve Purchaser named herein from liability hereunder.
(d) This Agreement shall be governed and construed in accordance
with the laws of the State of North Carolina.
(e) Whenever in this Agreement a period of time is stated as a
number of days, it shall be construed to mean calendar days; provided, however,
that when any period of time so stated would end upon a Saturday, Sunday, or
legal holiday, such period shall be deemed to end upon the next day following
which is not a Saturday, Sunday or legal holiday.
(f) The date and time for the performance of all obligations
hereunder shall be deemed to be of the essence of this Agreement.
(g) If any term or provision of this Agreement shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement shall not
be affected and each such remaining provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
18
(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument. The date of this Agreement shall
be the date of Seller's execution hereof.
28. Purchaser's Representations. Purchaser (and, if applicable,
Purchaser's Affiliate) represents to Seller, which representations shall be
true, correct and complete as of each Settlement Date hereunder and which shall
survive each Settlement, as follows:
(a) Purchaser is, and at the Settlement shall be, a corporation
(or limited liability company, or limited partnership, as applicable) duly
organized, validly existing, and in good standing under the laws of the state of
formation, and as of each Settlement, with full power and authority to conduct
its business affairs in the state where the Fee Property is located.
(b) The execution, delivery and performance of this Agreement, in
accordance with its terms, do not violate Purchaser's articles of incorporation,
by-laws, or any contract, agreement, commitment, order, judgment or decree to
which Purchaser is a party or by which it is bound.
(c) The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder have been duly authorized
by all required action of Purchaser and the officers of Purchaser in full
compliance with the provisions of Purchaser's articles of incorporation and
by-laws. The person executing this Agreement on behalf of Purchaser is duly
authorized to do so.
(d) Purchaser has the right, power and authority to make and
perform its obligations under this Agreement and this Agreement is a valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with
its terms.
(e) Purchaser executing this Agreement is wholly owned and
controlled by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
29. Seller's Representations. Seller represents to Purchaser, which
representations shall be true, correct and complete as of each Settlement Date
hereunder and which shall survive each Settlement, as follows:
(a) Seller is, and at the Settlement shall be, a national banking
association, duly organized and validly existing, with full power and authority
to conduct its business affairs in the state in which the Fee Property is
located.
19
(b) The execution, delivery and performance of this Agreement by
Seller, in accordance with its terms, do not violate Seller's articles of
incorporation, by-laws, or any contract, agreement, commitment, order, judgment
or decree to which Seller is a party or by which it is bound.
(c) The execution and delivery of this Agreement and the
performance by Seller of its obligations hereunder have been duly authorized by
all required action of Seller and the officers of Seller in full compliance with
the provisions of Seller's articles of incorporation and by-laws. The person
executing this Agreement on behalf of Seller is duly authorized to do so.
(d) Seller has the right, power and authority to make and perform
its obligations under this Agreement and this Agreement is a valid and binding
obligation of Seller enforceable against Seller in accordance with its terms.
(e) The square-footage measurements of the improvements on each of
the Fee Properties as set forth on Exhibit A has been measured in accordance
with BOMA measurement standards.
30. Indemnification. With respect to and following the Settlement on
each Fee Property.
(a) Purchaser shall indemnify and hold Seller harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees), losses,
damages and liabilities that arise out of or relate to (i) the presence of any
Hazardous Materials in, on or at a Fee Property (or any improvements) at the
time of Settlement, but only to the extent that the presence of such Hazardous
Materials were disclosed in a Phase I Study or Phase II Study obtained by either
Seller of Purchaser, (ii) transactions or operations at the Fee Property on and
after the Settlement Date or (iii) any breach by Purchaser of any
representation, warranty or covenant of Purchaser contained in this Agreement
that survives the Settlement. If any claim or lawsuit is made or commenced as to
which Seller proposes to demand such indemnification, it shall notify Purchaser
with reasonable promptness; provided, however, that any failure of Seller to
notify Purchaser shall not relieve Purchaser from its obligations hereunder,
except to the extent Purchaser is actually prejudiced by such failure to give
notice. Purchaser shall have the option of defending such claim or lawsuit with
counsel of its own choosing at its own cost and expense and such counsel shall,
to the extent consistent with its professional responsibilities, cooperate with
Seller and any counsel designated by Seller. Purchaser shall be liable for any
settlement of any claim or lawsuit against Seller made with Purchaser's written
consent, which consent shall not be unreasonably withheld.
(b) Seller shall indemnify and hold Purchaser harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees), losses,
damages and liabilities that arise out of or relate to (i) transactions or
operations at the Fee Property before the Settlement Date, but
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specifically excluding any matter relating to the physical condition of the Fee
Property or the presence of any Hazardous Materials in, on or at a Fee Property
(or any improvements) at the time of Settlement, and (ii) any breach by Seller
of any representation, warranty or covenant of Seller contained in this
Agreement that survives the Settlement. If any claim or lawsuit is made or
commenced as to which Purchaser proposes to demand such indemnification, it
shall notify Seller with reasonable promptness; provided, however, that any
failure of Purchaser to notify Seller shall not relieve Seller from its
obligations hereunder, except to the extent that Seller is actually prejudiced
by such failure to give notice. Seller shall have the option of defending such
claim or lawsuit with counsel of its own choosing at its own cost and expense
and such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with Purchaser and any counsel designated by
Purchaser. Seller shall be liable for any settlement of any claim or lawsuit
against Purchaser made with Seller's written consent, which consent shall not be
unreasonably withheld.
31. Confidentiality.
(a) Purchaser agrees that this Agreement and any and all
information obtained by Purchaser, its agents, representatives and employees, in
connection with any examinations and inspections of the Fee Properties will be
held in strict confidence by Purchaser and its agents, representatives and
employees and will not be disclosed to anyone other than Purchaser's investors
and its and their professional advisers on a "need to know " basis, without the
prior written consent of Seller. No news release, public or private
announcement, denial or confirmation relating to this Agreement or any part of
the transactions contemplated herein shall be made without the prior written
consent of Seller. In the event this Agreement is terminated prior to the
Settlement on a Fee Property, Purchaser will return to Seller any documents and
other materials received from Seller with respect to such Fee Property.
Purchaser shall indemnify, defend and hold Seller harmless from any loss,
damages, costs or expenses (including reasonable attorney's fees) arising as a
result of Purchaser's breach of this Section 31.
(b) Notwithstanding anything to the contrary contained in Section
31(a) above, following expiration of the Due Diligence Period, Purchaser may
market the Fee Properties to Purchaser's contacts (including existing tenants
occupying space in a Fee Property and persons who Purchaser believes may be
interested in using such Fee Property and persons, including brokers, who may
have contacts and relationships with such users), but in doing so, shall not
publicly market or advertise or promote in any manner the availability of such
Fee Property for sale, lease or other disposition.
32. No Offer. This Agreement shall neither be deemed an offer to sell
nor shall it bind, obligate or be effective against Seller unless and until (a)
the Agreement has been approved in writing by Seller's appropriate management
authority and (b) this Agreement has been fully executed by Seller and Purchaser
and an executed copy is delivered to Seller.
33. No Liability. No individual officers, directors, shareholders,
agents or
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representatives of Seller or of Purchaser shall have any personal liability
under this Agreement, either for the observance or performance of such party's
rights, duties or obligations hereunder, or for the default of such party to
observe and perform its obligations hereunder, or under any document executed in
connection with the transactions contemplated hereby, or otherwise.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
SELLER
BANK OF AMERICA, N.A.
By:____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice
President
Date of Execution:____________, 2002
PURCHASER
AMERICAN FINANCIAL RESOURCE GROUP, LLC
By:____________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Manager
Date of Execution:____________, 2002
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