EXHIBIT 2.1
AGREEMENT FOR PURCHASE AND SALE
OF
CT OPERATING PARTNERSHIP, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP;
SELECTED PORTFOLIO
JULY 12, 2000
TABLE OF CONTENTS
Page
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ARTICLE I. BASIC DEFINITIONS.............................................. 1
ARTICLE II. PURCHASE AND SALE............................................. 5
Section 2.1 Purchase and Sale............................. 5
Section 2.2 Purchase Price................................ 5
Section 2.3 Buyer's Review and Sellers' Disclaimer........ 6
Section 2.4 Expiration of Due Diligence Period............ 8
Section 2.5 Title Exceptions.............................. 9
ARTICLE III. CONDITIONS PRECEDENT......................................... 10
Section 3.1 Conditions.................................... 10
Section 3.2 Failure or Waiver of Conditions Precedent..... 13
ARTICLE IV. COVENANTS, WARRANTIES AND REPRESENTATIONS..................... 14
Section 4.1 Sellers' Warranties and Representations....... 14
Section 4.2 Sellers' Covenants............................ 16
Section 4.3 Buyer's Warranties and Representations........ 18
Section 4.4 Survival...................................... 19
ARTICLE V. DEFAULT........................................................ 19
Section 5.1 Buyer's Default & Deposit..................... 19
Section 5.2 Sellers' Default.............................. 21
ARTICLE VI. CLOSING....................................................... 21
Section 6.1 Escrow Arrangements........................... 21
Section 6.2 Closing....................................... 24
Section 6.3 Prorations.................................... 24
Section 6.4 Credits....................................... 28
Section 6.5 Other Closing Costs........................... 28
Section 6.6 Further Documentation......................... 29
Section 6.7 Cooperation in Exchange....................... 29
Section 6.8 Assignment of Indemnities..................... 30
ARTICLE VII. MISCELLANEOUS................................................ 30
Section 7.1 Damage or Destruction......................... 30
Section 7.2 Fees & Commissions............................ 31
Section 7.3 Successors and Assigns........................ 31
Section 7.4 Limitations................................... 31
Section 7.5 Notices....................................... 32
Section 7.6 WAIVER OF JURY TRIAL.......................... 33
Section 7.7 Parties Representatives....................... 34
Section 7.8 Time.......................................... 34
Section 7.9 Incorporation by Reference.................... 34
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Section 7.10 Attorneys' Fees.............................. 34
Section 7.11 Construction................................. 34
Section 7.12 Governing Law................................ 35
Section 7.13 Operating Records............................ 35
Section 7.14 Confidentiality.............................. 35
Section 7.15 Counterparts................................. 35
Section 7.16 Entire Agreement............................. 35
Exhibit A Properties (with exact name of respective Sellers)
Exhibit B Allocated Purchase Price
Exhibit C In-Negotiation Leases and Budgets for Same
Exhibit D List of Title Reports
Exhibit E Provisions required for Loan Assumption Documents
Exhibit F Buyer's Form of Estoppel
Exhibit G Transfer Documents
Schedule 1.1 Contracts
Schedule 1.2 Index of Data Room Disclosure Materials
Schedule 1.3 Key Tenants (Bankruptcy would Trigger Failure of a Closing
Condition)
Schedule 1.4 Leases and Other Rental Agreements (Rent Rolls)
Schedule 1.5 Major Leases (for Estoppels) (Note: ▇▇▇▇▇▇▇▇'▇)
Schedule 2.2 Assumed Loans - Outstanding Estimated Amounts
Schedule 2.3(c) List of Properties Developed by Sellers
Schedule 2.5(c) Outstanding Debt [including loans to be paid off]
Schedule 4.1(g) Governmental Violations
Schedule 4.1(h) Agreements Amended
Schedule 4.1(k) Loan Documents for Assumed Loans
Schedule 4.1(l) REAs
Schedule 6.3(c) Utility Deposits
Schedule 6.4 Special Provisions with Respect to the Torrance Property
▇▇▇▇▇▇▇▇'▇ Reserve Account
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AGREEMENT FOR PURCHASE AND SALE
OF
CT OPERATING PARTNERSHIP, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP SELECTED PORTFOLIO
THIS AGREEMENT FOR PURCHASE AND SALE (this "Agreement"), is made and
entered into as of July 12, 2000, by and between CT OPERATING PARTNERSHIP, L.P.,
a California limited partnership ("Center Trust"), CT RETAIL PROPERTIES FINANCE
IV, LLC, a Delaware limited liability company("CT Properties IV"), CT RETAIL
PROPERTIES FINANCE I, LLC, a Delaware limited liability company ("CT Properties
I"), CENTER TRUST RETAIL PROPERTIES FINANCE III L.L.C., a Delaware limited
liability company ("CT Properties III"), (Center Trust, CT Properties I, CT
Properties III, and CT Properties IV are each individually, a "Seller"
hereunder, and collectively are referred to herein as "Sellers") and KIMCO
REALTY CORPORATION, a Maryland corporation ("Buyer"). Sellers and their
respective interests in the Properties (as defined below) are identified more
precisely on Exhibit A to this Agreement.
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RECITALS
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A. The Sellers are the owners, and, with respect to a portion of the
Covina Property the holder of a leasehold interest, in a portfolio of shopping
center properties located in the States of California, Washington and Nevada as
more particularly described on Exhibit A to this Agreement and defined below
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with greater specificity as the "Properties."
B. Buyer desires to purchase and each of Sellers desires to sell,
subject to the terms and conditions contained in this Agreement, the entirety of
its right, title and interest in the Properties.
AGREEMENT
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NOW, THEREFORE, Buyer and Sellers do hereby agree as follows:
ARTICLE I.
BASIC DEFINITIONS
"Additional Exceptions" shall have the meaning set forth in Section
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2.5(a).
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"Allocated Purchase Price" shall refer, as to each Property, to the
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portion of the Purchase Price allocated to such Property as set forth on Exhibit
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B to this Agreement.
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"Assumed Loans" shall mean the Loans which, subject to delivery of the
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Lender Consents and Loan Assumption Documents as provided in Section
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3.1(a)(iii), shall be assumed by Buyer on the Closing Date and which are
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referenced on Schedule 2.2.
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"Closing Date" shall mean a date which is fifteen (15) days following
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the Due Diligence Completion Date (or the first business day thereafter if such
15/th/ day is not a business
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day); provided that either party may extend such 15 day period for an additional
period not to exceed 15 days from and after the date which is 15 days after the
Due Diligence Completion Date; and provided further, that the Closing Date for
some of the Properties may be extended as provided in Section 3.2(c).
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"Contract Period" shall mean the period from the date of this
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Agreement through and including the Closing Date.
"Contracts" shall mean the maintenance, service and other operating
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contracts, equipment leases and other arrangements or agreements listed on
Schedule 1.1 attached hereto.
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"Covina Property" shall mean the Property known as Covina Town Square
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located in Los Angeles County, California.
"Disclosure Materials" shall mean those materials located in the data
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room and provided prior to the date of this Agreement as indicated in the index
contained on the attached Schedule 1.2 and in the files available in the
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Sellers' offices to which Buyer has been afforded access and review rights prior
to the date of this Agreement and which rights shall continue to be afforded
Buyer throughout the Contract Period.
"Due Diligence Completion Date" shall mean August 11, 2000.
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"Due Diligence Period" shall mean the period commencing on the date of
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this Agreement, and ending at 5:00 p.m. Los Angeles, California time on the Due
Diligence Completion Date.
"Escrow Agent" shall mean Chicago Title Insurance Company, Los
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Angeles, California.
"Ground Lease" shall mean the ground lease, dated November 10, 1998,
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by and between Center Trust, the predecessor in interest to CT Properties I, as
Tenant, and Los Angeles County Flood Control District, as Landlord, with respect
to that certain portion of Real Property at the Covina Property as more
specifically identified on Exhibit A.
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"Hazardous Materials" shall mean any substances, materials, wastes,
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pollutants or contaminants now or in the future defined or listed in or subject
to reporting, investigation, permitting, remediation, licensing or other
regulatory requirements under any environmental laws or regulations, including,
without limitation, any inflammable explosives, radioactive materials, asbestos,
polychlorinated biphenyls, trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, petroleum products and by-
products and other substances with toxic or hazardous characteristics.
"Improvements" shall mean, as to each of the properties listed on
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Exhibit A, the right, title and interest of the applicable Seller in any and all
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structures, buildings, facilities, parking areas or other improvements situated
on such property's Land and all related fixtures, improvements, building systems
and equipment (including, without limitation, HVAC, security and life safety
systems).
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"In-Negotiation Leases" shall refer to those leases or modifications
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to existing Leases listed on Exhibit C to this Agreement.
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"Intangible Property" shall mean, as to each Real Property, the right,
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title and interest of the applicable Seller in: (a) any and all permits,
entitlements, filings, building plans, specifications and working drawings,
certificates of occupancy, operating permits, sign permits, development rights
and approvals, certificates, licenses, warranties and guarantees, engineering,
soils, pest control, survey, environmental, appraisal, market and other reports
relating to the property; (b) all trade names, service marks, tenant lists,
advertising materials and telephone exchange numbers identified with the
property; (c) the Contracts and the Leases (as defined herein); (d) claims,
awards (including, without limitation, any award in connection with any eminent
domain proceeding or conveyance in lieu thereof), actions, remedial rights and
judgments relating to the property; (e) all books, records, files and
correspondence relating to the property and (f) all other transferable
intangible property, miscellaneous rights, benefits or privileges of any kind or
character with respect to the property; provided that the Intangible Property
shall not include any Seller's name or any rights to the name "Center Trust" or
any derivatives thereof.
"Intervening Environmental Occurrence" shall mean an affirmative act
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committed by Sellers or any third party after the Due Diligence Completion Date
and prior to the Closing which violates an environmental law and creates
potential liability in excess of $100,000 for the owner of such Property. For
purposes of this provision "environmental law" shall mean any and all applicable
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any governmental authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. (S) 9601 et seq. (collectively "CERCLA"),
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
(S) 6901 et seq., the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. (S) 1251 et seq., the Clean Air Act of 1970,
as amended 42 U.S.C. (S) 7401 et seq., the Toxic Substances Control Act of 1976,
15 U.S.C. (S) 2601 et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. (S) 651 et seq., the Emergency Planning and Community Right-
to-Know Act of 1986, 42 U.S.C. (S) 11001 et seq., the Safe Drinking Water Act of
1974, as amended, 42 U.S.C. (S) 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. (S) 5101 et seq., and any similar or implementing
state, local or foreign law, and all amendments or regulations promulgated under
any of the foregoing.
"Intervening Matters" shall mean shall refer to facts or circumstances
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relating to the status of any Property which result in the failure of any
condition to closing, provided that in no event shall any of the following
constitute Intervening Matters: (i) competitive, general or specific market
conditions, (ii) changes in legislative or administrative laws or regulations,
(iii) the Permitted Exceptions, (iv) methodologies of or express assumptions in
financial projections, calculations or reports included within the Disclosure
Materials, (v) any matters
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which would constitute a material breach of a representation or warranty of any
Seller which are raised prior to the Closing Date but are based upon facts or
circumstances otherwise known by Buyer prior to the Due Diligence Completion
Date or which Buyer should have known or anticipated as of the Due Diligence
Completion Date had Buyer conducted a reasonably diligent review, to the
standard of a prudent institutional investor, of all information available in
the Disclosure Materials or obtained by Buyer during its Due Diligence review.
"Key Tenants" shall mean those tenants specifically identified on
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Schedule 1.3.
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"Land" shall mean, as to each of the properties listed on Exhibit A,
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the land component of the property as described with precision in the Title
Reports.
"Leases" shall mean, as to each Real Property, all leases, subleases,
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rental agreements or other agreements (including all amendments or modifications
thereto) referenced in Schedule 1.4 attached hereto.
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"Loans" shall mean the outstanding debt related to the Properties as
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set forth on the attached Schedules 2.2 and 2.5(c).
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"Major Leases" shall mean the Leases applicable to specific tenants at
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each Property as shown on Schedule 1.5 attached hereto.
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"Material Claims" shall mean any post-Closing claims of Buyer with
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respect to a material breach of a representation and warranty contained herein
or in any document delivered by Sellers at the Closing, that would effect a
diminution in the fair market value of all Properties by an aggregate of more
than $100,000 or otherwise results in aggregate material costs to Buyer in
excess of $100,000; provided that with respect to any Seller's Estoppel executed
in lieu of a Tenant Estoppel as provided in Section 3.1(a)(v), a "Material
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Claim" shall mean the material inaccuracy of any representation made in such
estoppel which results in a material diminution in the fair market value of the
applicable Property.
"Pavilions Property" shall mean the property known as Pavilions Centre
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located in Federal Way, Washington.
"Permitted Exceptions" the various matters affecting title to the
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Properties that are approved or deemed approved by Buyer pursuant to Section 2.5
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below.
"Personal Property" shall mean, as to each Real Property, all
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furniture, furnishings, trade fixtures and other tangible personal property
directly or indirectly owned by a Seller that is located at and used exclusively
in connection with the operation of the Real Property.
"Pool Material Claims Amount" shall refer to the aggregate amount of
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all Material Claims, which amount shall not exceed $2,500,000.
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"Property" shall mean, with respect to each of the properties
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described on Exhibit A, the Real Property, the Personal Property and the
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Intangible Property. Collectively, such properties shall be referred to as the
"Properties."
"REA" shall mean, with respect to each of the Properties, those
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certain easement, operating, and/or covenant agreements or declarations, as set
forth on Schedule 4.1(l).
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"Real Property" shall mean, as to each property listed on Exhibit A,
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all of the applicable Seller's right, title and interest in and to, the Land,
the Improvements and all rights, privileges, easements, and appurtenances to the
Land or the Improvements, including without limitation any rights of any Seller
under an REA, any air, development, water, hydrocarbon or mineral rights held by
any Seller, the Seller's rights in and to the Ground Lease, licenses, easements,
rights-of-way, claims, rights or benefits, covenants, conditions and servitudes
and other appurtenances used or connected with the beneficial use or enjoyment
of the Land or the Improvements and all rights or interests relating to any
strip and gores of land, roads, alleys or parking areas adjacent to or servicing
the Land or the Improvements.
"Rent Rolls" shall refer to the information schedules contained in
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Schedule 1.4 to this Agreement pertaining to Leases covering premises in the
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Properties.
"Title Company" shall mean Chicago Title Insurance Company, Los
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Angeles, California.
"Title Reports" shall refer to the preliminary title reports listed on
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Exhibit D to this Agreement and issued by the Title Company with respect to each
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of the Real Properties.
"Torrance Property" shall mean the property known as Torrance
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Promenade located in Torrance, California.
ARTICLE II.
PURCHASE AND SALE
Section 2.1 Purchase and Sale. Sellers agree to sell the Properties,
and Buyer agrees to purchase or cause to be purchased the Properties upon all of
the terms, covenants and conditions set forth in this Agreement.
Section 2.2 Purchase Price. The aggregate purchase price for the
Properties (the "Purchase Price") shall be One Hundred Sixty Million Six Hundred
and Ten Thousand Dollars (U.S. $160,610,000.00), subject to adjustment in
accordance with Section 6.3 -Prorations, and Section 3.2 - below. The entire
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amount of the Purchase Price so adjusted (less (i) the Deposit delivered
pursuant to Article V below and any accrued interest thereon and (ii) the
outstanding amount owed as of the Closing Date on the Assumed Loans, the
estimated amounts of which are set forth on Schedule 2.2 attached hereto, shall
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be payable by Buyer to Sellers through payment in cash or immediately available
funds of the entire balance on the Closing Date through the escrow described in
Section 6.1 below. Sellers shall provide Escrow Agent with a written statement
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and direction not later than five (5) business days prior to the Closing Date as
5
to the allocation and disposition of the Purchase Price among the persons and
entities constituting Sellers.
Section 2.3 Buyer's Review and Sellers' Disclaimer.
(a) Buyer acknowledges that Sellers have afforded (or will
afford during the Due Diligence Period) Buyer and its agents and representatives
an opportunity to review all of the Disclosure Materials prior to the date of
this Agreement or during the Due Diligence Period and, subject to the express
terms of this Agreement, that Buyer, upon completion of the Due Diligence
Period, shall have completed such review to its satisfaction. Buyer has assumed
fully the risk that Buyer has failed or will fail to completely and adequately
to review and consider any or all of such materials. But for Buyer's expression
of satisfaction with the content of the Disclosure Materials, Buyer would not
have entered into this Agreement; but for Buyer's expression of such
satisfaction and assumption of any risk as to the character of its review and
consideration of the Disclosure Materials, Sellers would not have entered into
this Agreement. Accordingly, during the Due Diligence Period, Buyer shall be
permitted to make a further review of information relating to the physical,
legal, economic and environmental condition of the Properties.
(b) Buyer's exercise of the rights of review set forth in
subsection (a) shall be subject to the following limitations: (i) any entry onto
any Property by Buyer, its agents or representatives, shall be during normal
business hours, following reasonable prior notice to Sellers and, upon receipt
of Sellers' consent and, at Sellers' discretion, accompanied by a representative
of Sellers; (ii) Buyer shall not conduct any drilling, test borings or other
disturbance of any Property for review of soils, compaction, environmental,
structural or other conditions without Sellers' prior written consent (which
shall not be unreasonably withheld); (iii) if during the Due Diligence Period,
any on-site discussions or interviews with any third party, any constituent
partner or member of any Seller, any tenants of a Property or their respective
personnel, at Sellers' election, shall be conducted in the presence of Sellers
or their representatives; (iv) if during the Due Diligence Period, any
discussions or interviews with employees at any Property shall be limited to
designated senior employees and, at Sellers' election even after the Due
Diligence Completion Date, shall be conducted in the presence of Sellers or
their representatives; (v) Buyer shall exercise reasonable diligence not to
disturb the use or occupancy or the conduct of business at any Property; and
(vi) Buyer shall indemnify, defend and hold Sellers harmless from all loss,
cost, and expense relating to personal injury or property damage resulting from
any entry or inspections performed by Buyer, its agents or representatives.
Sellers shall at all times exercise reasonable diligence to provide Buyer with
access or information that Buyer requests, but shall bear no liability if
Sellers are not able to afford Buyer such access or information.
(c) Buyer acknowledges (i) that Buyer has entered into this
Agreement with the intention of making and relying upon its own investigation of
the physical, environmental, economic and legal condition of the Properties,
(ii) that, other than those specifically set forth in this Agreement or in any
document to be delivered by Seller at Closing pursuant to this Agreement,
Sellers are not making and have not at any time made any warranty or
representation of any kind, expressed or implied, with respect to the
Properties, including,
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without limitation, warranties or representations as to habitability,
merchantability, fitness for a particular purpose, title (other than Sellers'
limited warranty of title set forth in the Deeds), zoning, tax consequences,
latent or patent physical or environmental condition, utilities, operating
history or projections, valuation, projections, compliance with law or the
truth, accuracy or completeness of the Disclosure Materials, (iii) that other
than those specifically set forth in this Agreement or in any document to be
delivered by Seller at Closing pursuant to this Agreement, Buyer is not relying
upon and is not entitled to rely upon any representations and warranties made by
Sellers or anyone acting or claiming to act on any of Sellers' behalf, (iv) that
the Disclosure Materials include soils, environmental and physical reports
prepared for Sellers by third parties as to which Buyer has no right of
reliance, Buyer has conducted or will conduct an independent evaluation and
Sellers have made no representation whatsoever as to accuracy, completeness or
adequacy, and (v) except as disclosed on Schedule 2.3(c) attached hereto, that
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Sellers did not develop or construct the Properties. Buyer further acknowledges
that it has not received from Sellers any accounting, tax, legal, architectural,
engineering, property management or other advice with respect to this
transaction and is relying solely upon the advice of its own accounting, tax,
legal, architectural, engineering, property management and other advisors.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT TO BE
DELIVERED AT CLOSING PURSUANT TO THIS AGREEMENT, BASED UPON THE ORDER OF BUYER'S
FAMILIARITY WITH AND DUE DILIGENCE RELATING TO THE PROPERTIES AND PERTINENT
KNOWLEDGE AS TO THE MARKETS IN WHICH THE PROPERTIES ARE SITUATED AND IN DIRECT
CONSIDERATION OF SELLERS' DECISION TO SELL THE PROPERTIES TO BUYER FOR THE
PURCHASE PRICE, BUYER SHALL PURCHASE THE PROPERTIES IN AN "AS IS, WHERE IS AND
WITH ALL FAULTS" CONDITION ON THE EXPIRATION OF THE DUE DILIGENCE PERIOD AND
ASSUMES FULLY THE RISK THAT ADVERSE LATENT OR PATENT PHYSICAL, ENVIRONMENTAL,
ECONOMIC OR LEGAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY ITS INVESTIGATIONS.
SELLERS AND BUYER ACKNOWLEDGE THAT THE COMPENSATION TO BE PAID TO SELLERS FOR
THE PROPERTIES HAS TAKEN INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD SUBJECT TO
THE PROVISIONS OF THIS SECTION 2.3. SELLERS AND BUYER AGREE THAT THE PROVISIONS
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OF THIS SECTION 2.3 SHALL SURVIVE THE CLOSING.
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ACCEPTED AND AGREED TO:
_________________________________ _______________________________
Buyer's Initials' Seller's Initials
(d) Consistent with the foregoing and subject solely to any
obligations, covenants, representations, warranties, indemnities or other
liabilities of Sellers set forth in this Agreement which specifically survive
Closing, or set forth in any document to be delivered at Closing and the
limitations on representations set forth in Sections 4.4, 5.2 and 7.4, effective
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as of the Closing Date, Buyer, for itself and its agents, affiliates, successors
and assigns, hereby releases and forever discharges Sellers, their respective
members, beneficial owners, agents, affiliates, successors and assigns
(collectively, the "Releasees") from any and all rights, claims and demands at
law or in equity, whether known or unknown at the time of this Agreement,
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which Buyer has or may have in the future, arising out of the physical,
environmental, economic or legal condition of the Properties, including, without
limitation, all claims in tort or contract and any claim for indemnification or
contribution arising under the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601, et. seq.) or any
similar federal, state or local statute, rule or ordinance relating to liability
of property owners for environmental matters. For all of the foregoing purposes,
Buyer hereby specifically waives the provisions of Section 1542 of the
California Civil Code and any similar law of any other state, territory or
jurisdiction. Section 1542 provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
Buyer hereby specifically acknowledges that Buyer has carefully reviewed this
subsection and discussed its import with legal counsel and that the provisions
of this subsection are a material part of this Agreement.
ACCEPTED AND AGREED TO:
__________________________ _______________________________
Buyer's Initials Seller's Initials
(e) Subject to any representations, warranties or covenants of
Sellers which specifically survive Closing as set forth in this Agreement or any
document to be delivered at Closing, Buyer shall indemnify, defend and hold
Sellers harmless from and against any and all losses, damages, causes of action,
costs and expenses (including without limitation, reasonable attorneys' fees and
costs), claims and liabilities in connection with or relating directly or
indirectly to the Properties and arising out of or resulting from acts or
omissions occurring from and after the Closing Date. Subject to the limitations
and agreements set forth in Sections 4.4, 5.2 and 7.4 of this Agreement, Sellers
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shall indemnify, defend and hold Buyer harmless from and against any and all
losses, damages, causes of action, costs and expenses (including without
limitation, reasonable attorneys' fees and costs), claims and liabilities in
connection with or relating directly or indirectly to the Properties and arising
out of or resulting from (i) any matters resulting from inaccuracies in any
Seller's Estoppel (as defined herein) delivered in lieu of a Tenant Estoppel,
(ii) a breach by Seller of the representations set forth in Section 4.1
(exclusive of Section 4.1(e)) or in any document executed and delivered by
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Seller at the Closing pursuant to this Agreement, and (iii) all post-Closing
adjustments resulting in amounts to be paid by Sellers as set forth in Section
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6.3.
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Section 2.4 Expiration of Due Diligence Period. In the event that
during the Due Diligence Period, Buyer, in its sole and exclusive judgment,
determines not to purchase the Property for any reason or for no reason, or if
Buyer is not satisfied with the condition of the Properties then, on or prior to
the Due Diligence Completion Date, Buyer shall have the right to terminate this
Agreement without liability to either Seller or Buyer by delivering written
notice to Seller of such decision with a copy to Escrow Agent on or prior to the
Due Diligence Completion
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Date. If Buyer terminates this Agreement pursuant to this Section 2.4, (i) all
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non-public information obtained by Buyer from Seller during either the Due
Diligence Period shall be kept confidential and the provisions of Section 7.14
shall survive such termination, except to the extent disclosure is required
pursuant to applicable law, regulation or court proceeding, (ii) Buyer shall
return all Disclosure Materials to Seller, and (iii) Buyer shall provide a copy
to Seller of Buyer's third party consultant's report(s), if requested by Seller.
In the event Buyer does not terminate this Agreement prior to the end of the Due
Diligence Period, this Agreement shall remain in full force and effect and Buyer
within one (1) business day following the Due Diligence Completion Date, shall
place the Additional Deposit in escrow with the Escrow Agent as herein provided,
and Buyer shall be obligated to close with respect to all Properties, subject
only to satisfaction or waiver of all conditions to Closing set forth in this
Agreement and the provisions of Section 3.2.
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Section 2.5 Title Exceptions.
(a) Buyer acknowledges that Buyer will review during the Due
Diligence Period: Sellers' existing title insurance policies; the Title Reports
issued by the Title Company with respect to each of the Properties; documents
and information pertaining to the exceptions to title listed in the Title
Reports; and ALTA/ATSM surveys with respect to each of the Properties. Buyer may
secure during the Due Diligence Period any additional title report or survey
updates desired by Buyer. Any title exceptions or issues disclosed by title or
survey updates, disclosed by Sellers to Buyer or otherwise identified by Buyer
which are not within the definition of Permitted Exceptions shall be referred to
as "Additional Exceptions." Sellers, moreover, shall exercise reasonable efforts
to cause Title Company to honor Title Company's undertaking to issue to Buyer
title insurance policies substantially in the form of Sellers' existing policies
with modification to reflect intervening title matters, provided that Sellers
make no representation or covenant as to the enforceability or performance of
such Title Company undertaking.
(b) Buyer shall have the right to deliver a written notice to
Sellers identifying any Additional Exceptions on or prior to the Due Diligence
Completion Date and with respect to any Additional Exceptions of which Buyer
first becomes aware after the Due Diligence Completion Date, within five (5)
days after becoming aware of the same. Buyer's failure to deliver any such
notice in timely fashion shall be deemed an approval of any Additional
Exceptions disclosed to Buyer in any title or survey updates, disclosed to Buyer
by Sellers in writing or otherwise discovered by Buyer during the Due Diligence
Period with respect to any Additional Exceptions of which it is aware on or
prior to the Due Diligence Completion Date, and with respect to any Additional
Exceptions of which Buyer first becomes aware after the Due Diligence Completion
Date, within five (5) days after becoming aware of the same.
(c) "Permitted Exceptions" shall include and refer to: all
Leases, any and all exceptions to title set forth in the Title Reports listed on
Exhibit D attached hereto, unless such exception was objected to by Buyer during
---------
the Due Diligence Period, in which case it shall be deemed an "Additional
Exception"; zoning ordinances and regulations and other laws or regulations
governing use or enjoyment of the Property not violated by existing improvements
and use thereof; matters affecting title created by or with the consent of
Buyer; liens to secure taxes and assessments for amounts which are not yet due
and payable unless such amounts are
9
being prorated at closing pursuant to Section 6.3 and customary utility
-----------
easements and other matters which do not materially and adversely affect the
use, occupancy, development (as to any undeveloped Properties) or value of a
Property. Notwithstanding the foregoing, Sellers shall remove at Sellers' sole
cost and expense on or prior to the Closing Date and there shall not be treated
as Permitted Exceptions: any liens of any mortgages or deeds of trust other than
Assumed Loans; tax judgment, mechanics and other liens for monetary obligations;
and any title matters created in violation of Sellers' covenant set forth in
Section 4.2(f) below. Buyer shall have the right to pay on the Closing Date and
--------------
offset against the Purchase Price the amount of any of indebtedness secured by
mortgage lien, tax judgment, mechanics and other lien for monetary obligations
which Sellers have failed to remove on or prior to the Closing Date, unless such
matter is a Permitted Exception or relates to an Assumed Loan.
(d) At or prior to the Closing, Seller shall remove, correct,
cure or satisfy to Buyer's reasonable satisfaction, any Additional Exception. If
Seller fails to remove any Additional Exceptions with respect to a Property,
Buyer shall have the right at its sole option either (i) to exclude such
Property from the transfer, in which case the provisions of Section 3.2 shall be
-----------
applicable, or (ii) close and waive any rights against Seller with respect
thereto. Except with respect to monetary liens as set forth in Section 2.5(c)
and any Additional Exception created in violation of Seller's covenant in
Section 4.2(f), Seller shall have no liability for or as a result of its
inability or failure to remove, correct, cure or satisfy any such Additional
Exception and Buyer's sole remedy in the event of such failure shall be to
exercise the option set forth in the preceding sentence of this Section 2.5(d).
(e) Sellers shall have no obligation to execute any affidavits
or indemnifications in connection with the issuance of Buyer's title insurance
excepting only customary affidavits as to authority, the rights of tenants in
occupancy, the status of mechanics' liens and other affidavits or
indemnifications necessary to address matters of title which Sellers are
obligated to remove or cure pursuant to this Section 2.5, including, without
-----------
limitation, a gap indemnity in favor of the Title Company if required by the
Title Company with respect to any delayed recordation of the Deeds, and any
other documents to be recorded hereunder on or after the Closing Date.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.1 Conditions.
(a) Notwithstanding anything in this Agreement to the contrary,
Buyer's obligation to purchase the Properties shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent for each
Property:
(i) The willingness, upon the sole condition of the payment
of any regularly scheduled premium by the party required to do so pursuant to
Section 6.4, of the Title Company to issue an American Land Title Association
-----------
extended coverage Owner's Policy of Title Insurance, (1992 Form) (each, a "Title
Policy") insuring Buyer (or Buyer's permitted assignee or nominee) that title to
each Real Property is vested of record in Buyer (or Buyer's
10
permitted assignee or nominee) on the Closing Date subject only to the printed
conditions and of such policy and the Permitted Exceptions;
(ii) The absence of any material breaches of any of the
representations and warranties set forth in Sections 4.1, 4.2 and 7.2;
----------------- ---
(iii) With respect to the Assumed Loans, the applicable
lenders shall have delivered documents evidencing each such the Lender's consent
to the assignment to, and assumption by, Buyer of the each of the Assumed Loans,
which such documents shall be reasonably acceptable to Buyer and shall satisfy
in all material respects Buyer's requirements as set forth on Exhibit E attached
---------
hereto (collectively such loan assumption documents are referred to herein as
the "Lender Consents and Loan Assumption Documents") prior to the Closing Date.
All Lender Consents and Loan Assumption Documents shall be in a form reasonably
acceptable to Buyer which shall, (A) state the outstanding principal balance of
the promissory note applicable to the Property, the date through which interest
has been paid thereunder, the amount held by it in any escrow account, and that
aside from said principal balance and any accrued interest thereon, there are no
other outstanding or accrued amounts secured by the deed of trust or mortgage
recorded in connection with such Loan; and (B) consent to the transfer of the
Property to any subsidiary of Buyer or Kimco Income Operating Partnership, L.P.,
without any change in interest rate, payment schedule, or any other material
modification of the Loan Documents not approved by Buyer in its sole discretion
but applying reasonable good faith business judgment.
(iv) With respect to the Ground Lease, the applicable
Seller shall have delivered a document evidencing the landlord's consent to the
assignment and assumption of the Ground Lease.
(v) Sellers' delivery to Buyer of tenant estoppels
("Tenant Estoppels"), dated not more than thirty (30) days prior to the
anticipated Closing Date, with respect to each of the Major Leases, unless
otherwise noted on Schedule 1.5, and 60% of all other Leases. Each Tenant
Estoppel shall be substantially in the form attached to, or required by, the
applicable tenant's Lease (provided same does not reveal or claim a default in
any representation or warranty of Seller in this Agreement), or if no such form
is identified in a Lease, substantially in the form of Exhibit F; provided
---------
however with respect to tenants under any of the Major Leases, if such tenant
provides an estoppel in the tenant's customary and usual or standard form, such
an estoppel will be acceptable to Buyer so long as it confirms the actual lease
agreement, including no undisclosed amendments thereto, the absence of defaults
by landlord thereunder or outstanding tenant improvement work obligations, and
the base rental amounts. Seller may satisfy the foregoing delivery requirements
by delivering a Seller's estoppel ("Seller's Estoppel") executed by the
applicable Seller containing the same information with respect to: (C) the
specific leases identified on Schedule 1.5, and (D) up to 40% of the Leases that
------------
are not Major Leases at each Property;
(vi) Sellers' delivery to Buyer of an estoppel in form and
substance reasonably satisfactory to Buyer, dated not more than thirty (30) days
prior to the anticipated Closing, with respect to the Ground Lease and each
party to an REA; provided, however, that the failure to deliver such estoppels
-------- -------
prior to the Closing Date shall not be a failure
11
of a closing condition if: (i) Sellers' cause the Title Company to issue the
Title Policies including, without exception, for the Covina Property, and
covenants to use good faith efforts to obtain the estoppels post-closing as
promptly as reasonably possible; and (ii) with respect to any missing estoppel
for an REA party or the Ground Lease, Seller provides an estoppel from Seller in
form and substance reasonably satisfactory to Buyer.
(vii) No Intervening Environmental Occurrence shall have
occurred;
(viii) No Key Tenant, except for ▇▇▇▇▇▇▇▇'▇, shall have
filed a petition for bankruptcy after the Due Diligence Completion Date (such
event being referred to herein as a "Tenant Bankruptcy");
(ix) The tenant(s) under the In-Negotiation Lease(s) shall
be in occupancy and shall be paying full rent (without credits or allowance) on
or before the Closing Date; provided however that if any such Tenant is not in
occupancy and paying rent as of the Closing Date, then Seller and Buyer shall
authorize Escrow Agent to holdback in Escrow, (from the funds to otherwise be
delivered to Seller upon Closing,) an amount equal to the applicable tenant's
base rent (without deduction for brokerage commissions or allowances), common
area charges and/or real estate taxes, accruing from and after the Closing Date
to thirty days after the then estimated date for such tenant's rent commencement
as reasonably estimated by both parties. With respect to any such holdback
amounts, Escrow Agent shall be instructed to release to Buyer an amount equal to
one month's base rent plus common area charges on each monthly anniversary of
the Closing Date until such time as the tenant commences occupancy and payment
of rent, at which point Buyer shall receive a pro rata amount based on the
number of days of a partial month of rent prior to tenant's commencement date
and the then remaining holdback amounts shall be immediately released to Seller;
and
(x) Sellers' performance or tender of performance of all
material closing obligations under this Agreement, assuming no termination
hereof.
(b) Notwithstanding anything in this Agreement to the contrary,
Sellers' obligation to sell the Properties shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent:
(i) The satisfaction or Buyer's written waiver of the
conditions set forth in subparagraph (a)(i) above;
(ii) As of the Closing Date, each of Buyer's
representations in Section 4.3 shall be true and correct in all respects;
-----------
(iii) The submission of fully executed Lender Consent and
Assumption Documents as provided in Section 6.1; provided, however, (i) Seller
-----------
may not refuse to close on any Property if the applicable Lender has consented
to the assumption and Buyer is willing to waive any further unfulfilled
requirements in the Lenders Consent and Assumption Documents (provided that such
waiver does not result in an economic cost to Seller not
12
contemplated by this Agreement) and (ii) with respect to one or more of the
Properties subject to an Assumed Loan, if this condition is not fully satisfied
to Seller's satisfaction and Buyer is prepared to waive the condition set forth
in Section 3.1(a)(iii) and close on all but the affected Property or Properties,
Sellers shall be obligated to sell all but the affected Property or Properties
and this Agreement shall be terminated only with respect to such affected
Property or Properties; and
(iv) Buyer's performance or tender of performance of all
material closing obligations under this Agreement.
Section 3.2 Failure or Waiver of Conditions Precedent
(a) If, after the Due Diligence Completion Date, Buyer discovers
an Intervening Matter with respect to one or more Properties, Buyer may elect to
exclude one such Property from the Properties being transferred by giving
written notice of such election to Sellers promptly following such election;
provided, however, that Buyer's right to exclude a Property is limited to the
-------- -------
exclusion of one Property. In the event of the exclusion of any such Property,
the parties shall be bound to consummate the purchase and sale of the balance of
the Properties in accordance with this Agreement and the Purchase Price shall be
reduced by an amount equal to the Allocated Purchase Price of the Property so
excluded. The portion of the Deposit properly allocable to such Property shall
be added to the portions of the Deposit allocable to the balance of the
Properties being transferred. In any event, Buyer's consent to the close of
escrow pursuant to this Agreement shall waive any remaining unfulfilled
conditions. If, in accordance with the provisions of this Section 3.2, this
Agreement is terminated by Buyer as a result of the failure of any condition set
forth in Section 3.1(a), Seller shall return the full amount of the Deposit plus
--------------
accrued interest to Buyer.
(b) If, after the Due Diligence Completion Date, Buyer discovers
an Intervening Matter with respect to the Torrance Property or the Pavilions
Property, Buyer may elect to (i) terminate this Agreement in its entirety and
shall receive reimbursement of the Deposit and all interest accrued thereon or
(ii) may elect to exclude such Property affected by such Intervening Matter, and
close the transaction with respect to all or a portion of the Properties. If
Buyer terminates this Agreement under this subsection (b)(i), Buyer shall not be
obligated to purchase the Properties and the Sellers shall not be obligated to
sell the Properties and the entire amount of the Deposit, together with any
interest accrued thereon, shall be returned to Buyer.
(c) If, after the Due Diligence Completion Date, Buyer discovers
an Intervening Matter with respect to two or more Properties other than the
Torrance Property or the Pavilions Property, Buyer may elect to either (i)
terminate this Agreement, or (ii) exclude one of the Properties affected by such
Intervening Matter and waive the Intervening Matter with respect to any other
Properties affected by such Intervening Matter. In the event Buyer elects clause
(i) of the preceding sentence, Sellers shall have the right, but not the
obligation, to extend the Closing Date with respect to all Properties or only
the Properties affected by such failure of a closing condition for a reasonable
period necessary to satisfy all closing conditions not then satisfied, provided
such extension is not anticipated to be more than 30 days to cure such
13
Intervening Matter and such extension does not actually exceed 60 days. If
Seller elects to extend the Closing for only the Properties affected by such
failure, thereby requiring Buyer to close all other Properties on the Closing
Date, Seller shall be obligated to use good faith commercially reasonable
efforts to satisfy the closing conditions on the affected Properties as soon as
possible. If at any point during such Seller elected extension it appears to
both Buyer and Seller that it will be impossible to satisfy such unfulfilled
conditions, this Agreement shall terminate with respect to such affected
Property.
(d) If an Intervening Matter exists and Buyer intends to exclude
a Property or terminate this Agreement, Buyer's written notice of such intention
shall describe such Intervening Matter with particularity. Within five (5) days
of receipt of such written notice describing an Intervening Matter and stating
Buyer's intention to either exclude a Property or terminate this Agreement,
Sellers shall notify Buyer whether Sellers intend to cure such condition prior
to the Closing Date, or in the case of Subsection 3.2(c) above prior to an
-----------------
extended Closing Date, in which case the parties rights and obligations under
this Agreement shall continue in full force and effect. If Sellers do not
notify Buyer that Sellers intend to cure such Intervening Matter, subject to the
relevant provisions of this Section 3.2, the Property affected by the
Intervening Matter shall be excluded from the Closing or this Agreement shall
automatically terminate, as the case may be.
(e) If a Property is excluded pursuant to any provision of this
Agreement, the Purchase Price shall be reduced by the Allocated Purchase Price
for such excluded Property and the portion of the Deposit (and the accrued
interest thereon allocable to such Property) shall be proportionately
reallocated among all remaining Properties.
ARTICLE IV.
COVENANTS, WARRANTIES AND REPRESENTATIONS
Section 4.1 Sellers' Warranties and Representations. As of the date
hereof, each Seller hereby represents and warrants to Buyer as to itself and
regarding its applicable Property as follows, and, except with respect to
Section 4.1(g) below, as of the Closing Date each of the following shall be true
--------------
and correct in all material respects, provided, that, each of such
representations and warranties shall be deemed expressly qualified by any
information set forth on the Disclosure Materials as well as by any information
as to which Buyer has actual knowledge prior to the end of the Due Diligence
Completion Date or, with respect to representations and warranties brought
current as of the Closing and thereafter surviving the Closing, shall be deemed
expressly qualified by information as to which Buyer had actual knowledge of
during the Contract Period.
(a) Each of the Sellers is duly formed, validly existing and in
good standing under the laws of the State of its formation and in the State
where the applicable Property is located. The Seller has full power and lawful
authority to enter into and carry out the terms and provisions of this Agreement
and to execute and deliver all documents which are contemplated by this
Agreement, and all actions of the Seller (or any parent entity) necessary to
confer such power and authority upon the persons executing this Agreement (and
all documents which are contemplated by this Agreement) on behalf of the Seller
have been taken;
14
(b) The Seller's execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance of the
Seller's obligations under the instruments required to be delivered by the
Seller at the Closing, do not and will not require the consent, approval or
other authorization of, or registration, declaration or filing with, any
governmental authority (excepting the recordation of closing documents
contemplated in this Agreement) and do not and will not result in any violation
of, or default under, any term or provision of any agreement, instrument,
mortgage, loan agreement or similar document to which the Seller is a party or
by which the Seller is bound;
(c) There is no litigation, investigation or proceeding pending
or, to the best of the Seller's knowledge, contemplated or threatened against
the Seller which would impair or adversely affect the Seller's ability to
perform its obligations under this Agreement or any other instrument or document
related hereto or to Seller's knowledge, would adversely affect Buyer following
Closing;
(d) The Seller is not a "foreign person" as defined in Internal
Revenue Code 1445(f)(3);
(e) The Rent Roll applicable to each Property is true, correct
and complete in all material respects as of the date of this Agreement. To
Seller's knowledge, each Lease identified on Schedule 1.4, (i) is in full force
------------
and effect and, except as disclosed in the Disclosure Materials, has not been
modified or supplemented, (ii) no tenant is entitled to any "free rent" period,
defense, credit, allowance or offset against rental, (iii) Seller has completed
all tenant improvements specified in any Lease to be the responsibility of the
Seller, (iv) Seller has paid all tenant construction allowances and (v) Seller
is not in material default and has not received written notice of any material
default by the tenant or the landlord under the Lease;
(f) To Seller's knowledge, Seller has received no written notice
from any governmental authorities that eminent domain proceedings for the
condemnation of any Property or any part of a Property are pending;
(g) To Seller's knowledge, Seller has received no written notice
from any governmental authority that the current use of any Property is
presently in violation of any applicable zoning, land use or other law, order,
ordinance, rule or regulation affecting the Property, that any investigation has
been commenced or is contemplated with respect to any such possible failure of
compliance and such Seller has not received written notice from any insurance
company or Board of Fire Underwriters any written notice of any defect or
inadequacy in connection with the applicable Property or its operation, except
as set forth on Schedule 4.1(g);
---------------
(h) To Seller's knowledge, there are no agreements relating to
the Properties, except for the Leases, the Ground Lease, other matters of record
and Contracts, that are not cancelable by the owner of the Property within
thirty (30) days after written notice from such owner, and (i) Sellers have not
given or received any notice of default under any Contract and (ii) the
Contracts have not been amended except as set forth in Schedule 4.1(h);
---------------
15
(i) Except as set forth in the environmental reports included
within the Disclosure Materials and any reports or studies prepared by or for
Buyer: (i) to Seller's knowledge, Seller has received no written notice of the
presence of any Hazardous Materials presently deposited, stored, or otherwise
located on, under, in or about any Property which require reporting to any
governmental authority or are otherwise not in compliance with environmental
laws, regulations and orders; and (ii) to Seller's knowledge, there are no
underground storage tanks on any Property; and
(j) As of the Closing Date, there will be no on-site employees
or hired persons in connection with the management, operation or maintenance of
the Properties. Buyer shall have no obligation, liability or responsibility with
respect to charges, salaries, vacation pay, fringe benefits or like items
subsequent to the Closing Date, nor with respect to any management or employment
agreements with respect to the Property, unless such employees have been
approved by Buyer in writing during the Due Diligence Period; and
(k) With regard to any material instruments securing or executed
in connection with the Assumed Loans ("Loan Documents"): (i) to Seller's
knowledge, true, correct and complete copies of the Loan Documents are listed on
Schedule 4.1(k) and have heretofore been delivered to Buyer; (ii) Seller has not
received any notice of default from any lender (or its servicing agent, if any)
claiming that any breach has occurred pursuant to the terms of the Loan
Documents which remains uncured; (iii) to Seller's knowledge, no event has
occurred which, with the giving of notice and/or passage of time, would
constitute a default under the Loan Documents; and (iv) to Seller's knowledge,
other than the outstanding principal balance and accrued interest, there are no
other currently outstanding amounts secured by the Loan Documents.
(l) To Seller's knowledge, the Ground Lease and each of the REAs
as set forth on Schedule 4.1(l) is in full force and effect and has not been
---------------
modified or supplemented except as set forth in a recorded instrument, or as
heretofore provided to Buyer by Seller or Landlord under the Ground Lease. To
Seller's knowledge, there is no default of either Seller or any REA parties
under any of the REAs, or by Seller or Landlord under the Ground Lease, and no
state of facts that with notice and/or passage of time would ripen into a
default. To Seller's knowledge, no unperformed work or installations or unpaid
amounts is required of or due from Seller under any REA. The commencement date
for the term under the Ground Lease was November 10, 1998 and tenant began rent
payments on December 15, 1998. To Seller's knowledge, Seller has not received
any notice to exercise its right of first refusal under Section 20 of the Ground
Lease.
For the purposes of this Section 4.1, the terms "Sellers' knowledge" or words of
similar effect shall mean the current actual knowledge of Messrs. ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇. None of the named
individuals or individual whose sole knowledge is imputed to a Seller under this
Section nor any party other than the Seller affording a representation shall
bear personal responsibility for any breach of such representation.
Section 4.2 Sellers' Covenants. Seller hereby covenants and agrees
as follows:
16
(a) During the Contract Period, Sellers will exercise reasonable
and good faith efforts to operate and maintain the Properties in a manner
consistent with current practices, including, without limitation, fulfilling
obligations under all Leases, Loans, REAs and the Ground Lease;
(b) During the Contract Period, Sellers will not sell or
otherwise dispose of any significant items of Personal Property unless replaced
with an item of like value, quality and utility;
(c) During the Contract Period, Sellers shall not enter into or
modify any agreements relating to the operation or maintenance of a Property,
except for those entered into in the ordinary course of business and which are
cancelable upon not more than thirty (30) days prior notice or those otherwise
approved by Buyer, which approval shall not be unreasonably withheld and shall
be deemed given if Buyer should fail to approve or disapprove proposed contract
matters in writing within three (3) business days following Seller's written
request. At Buyer's written request, Sellers shall deliver notice of termination
on the Closing Date as to any and all Contracts that Buyer desires to terminate,
provided that such termination shall be effective following any notice or
waiting period for such termination described in the Contract and that Sellers
shall be required to bear any termination or cancellation fee or charge that may
be assessed under such Contract based upon an early termination. Notwithstanding
the foregoing, Sellers shall terminate all property management agreements, if
any, relating to the Properties as of the Closing Date;
(d) During the Contract Period, Sellers will not execute or
modify in any material fashion any Leases, (i) without promptly notifying Buyer
of the proposed Lease or modification and providing Buyer with copies of the
proposed lease or modification documents and (ii) as to any lease or
modification, other than (A) on terms within the range of the leasing guidelines
negotiated reasonably and in good faith by the parties prior to the close of the
Due Diligence Period and initialed to confirm approval or (B) with Buyer's prior
consent, which consent shall be deemed given as to the In-Negotiation Leases
(and the budgets for leasing costs attendant to such leases set forth on Exhibit
-------
C), shall be deemed given if Buyer should fail to approve or disapprove proposed
-
lease matters in writing within 5 business days following Seller's written
request and, prior to the end of the Due Diligence Completion Date, shall not be
unreasonably withheld or delayed with respect to matters or terms not addressed
in the approved leasing guidelines. Buyer shall exercise its rights of approval
of leasing matters in good faith. Sellers shall exercise reasonable efforts to
continue to lease the Properties in a fashion consistent with current practices;
(e) During the Contract Period, Sellers shall not modify or
amend the Loan Documents under the Assumed Loans, or make any prepayments
thereunder;
(f) During the Contract Period, Sellers shall not voluntarily
create, consent to or acquiesce in the creation of liens or exceptions to title
other than the Permitted Exceptions without Buyer's prior written consent,
provided that Buyer shall not unreasonably withhold or delay consent to any
proposed matters affecting title necessary to maintain or enhance the value of
the pertinent Property;
17
(g) During the Contract Period, Sellers shall maintain all-risk
policies of property insurance and rental loss insurance for the Improvements in
coverage, terms and conditions and with deductibles substantially consistent
with Sellers' property insurance package currently in effect (the terms of which
are set forth in the Disclosure Materials); and
(h) Sellers shall cooperate with Buyer in Buyer's pursuit, at
Buyer's cost, of recertifications of surveys, environmental and physical
inspection reports prepared for Sellers with respect to the Properties for the
benefit of Buyer, Buyer's nominee in title or any lender. Buyer's securing of
such certifications shall not operate as a condition to closing;
Except for the payment of its own transaction expenses and the Assumed Loan
Transaction Costs (as defined below), Buyer shall not be required to pay Loan
Assumption Fees, agree to any material changes in the Assumed Loans, or
otherwise incur any additional obligations and/or liabilities in connection with
obtaining the lender consents. Buyer shall cooperate with Sellers and such
lenders and respond to requests by such lenders in a timely manner.
Section 4.3 Buyer's Warranties and Representations. Buyer hereby
represents and warrants to Sellers that the following are true:
(a) As of the date of this Agreement
(i) Buyer is a duly formed and validly existing
corporation under the law of the state of its formation and in good standing
under the laws of the state of its formation and Buyer has the full right,
authority and power to enter into this Agreement, and each of the individuals
executing this Agreement on behalf of Buyer is authorized to do so, and this
Agreement constitutes a valid and legally binding obligation of Buyer
enforceable against Buyer in accordance with its terms;
(ii) Buyer's execution and delivery of this Agreement do
not and will not result in any violation of, or default under, any term or
provision of any agreement, instrument, mortgage, loan agreement or similar
document to which Buyer is a party or by which Buyer is bound; and
(iii) There is no litigation, investigation or proceeding
pending or, to the best of Buyer's knowledge, contemplated or threatened against
Buyer, which would impair or adversely affect Buyer's ability to perform its
obligations under this Agreement or any other instrument or document related
hereto.
(b) As of the expiration of the Due Diligence Completion Date,
(i) Buyer will have the full right, authority and power
to consummate the transactions contemplated herein and to perform its
obligations hereunder and under those documents and instruments to be executed
by it at the Closing; and
(ii) There will be no litigation, investigation or
proceeding pending or, to the best of Buyer's knowledge, contemplated or
threatened against Buyer, which
18
would impair or adversely affect Buyer's ability to perform its obligations
under this Agreement or any other instrument or document related hereto.
Section 4.4 Survival.
(a) Subject to Section 7.4 below, the parties agree that
-----------
Sellers' warranties and representations contained in Sections 4.1 (exclusive of
------------
4.1(e) (Rent Rolls)) of this Agreement shall survive Buyer's purchase of the
Properties and the Closing Date for a period ending two hundred seventy (270)
calendar days following the Closing Date (the "Limitation Period"). Sellers
representations and warranties in Section 4.1(e) shall not survive the Closing,
but shall be merely a condition to Closing. Such termination as of the close of
the Limitation Period, or in the case of Section 4.1(e) as of the Closing, shall
apply to known as well as unknown breaches of such warranties or
representations. Buyer specifically acknowledges that such termination of
liability represents a material element of the consideration to Sellers.
(b) After the Closing, in the event either party discovers or
initiates a post closing claim against the other party, each of the Parties who
has expressed a representation or warranty or who have breached a covenant set
forth in Section 4.1, 4.2 or 4.3 for which a Claim Notice (as defined herein)
----------- --- ---
has been received shall have a period of forty-five (45) days after notice to
the breaching party within which to cure such breach, or, if such breach cannot
reasonably be cured within forty-five (45) days, an additional reasonable time
period of up to an additional sixty (60) days, so long as such cure has been
commenced within such thirty (30) days and is at all times diligently pursued.
If the breach is not cured after actual written notice and within such cure
period, the other party's sole remedy shall be an action at law for damages
against the breaching party or parties, which must be commenced, if at all,
within the Limitation Period; provided, however, that if within the Limitation
Period a party gives a Claim Notice and the other party commences to cure and
thereafter terminates such cure effort, the non-breaching party shall have an
additional number of days equivalent to the number of days from the commencement
of such cure to the date of written notice from the breaching party of such
termination within which to commence an action at law for damages as a
consequence of the failure to cure. The existence or pendency of such cure
rights shall not delay the Closing Date.
ARTICLE V.
DEFAULT
Section 5.1 Buyer's Default & Deposit
(a) Contemporaneously with the execution of this Agreement,
Buyer has delivered to Escrow Agent, for deposit into the escrow described in
Section 6.1 below (the "Escrow Account"), cash in an amount equal to One Million
-----------
Dollars ($1,000,000) (the "Initial Deposit"). Within one (1) business day
following the Due Diligence Completion Date (if Buyer does not terminate this
Agreement pursuant to Section 2.4), Buyer shall deliver to Escrow Agent for
deposit into the Escrow Account cash in the amount of the balance between
Initial Deposit and an amount equal to 2% of the Purchase Price (the "Additional
Deposit," and together with the Initial Deposit the "Deposit"). The Deposit
shall be allocated among the Properties pro-rata in accordance with the
Allocated Purchase Price.
19
(b) Prior to Closing, Escrow Agent shall hold the Deposit as set
forth in Section 5.1 unless (i) Escrow Agent receives notice from Buyer
-----------
terminating this Agreement pursuant to Sections 2.4 or 3.2(b), in which event
----------------------
Escrow Agent shall forthwith return the Deposit (and all accrued interest
thereon) to Buyer without requirement of notifying Sellers as provided in (ii)
below, and without regard to any objection of Sellers; or (ii) with regard to
all situations other than in (i) above, unless either Sellers or Buyer makes a
written demand upon Escrow Agent for the Deposit accompanied by an affidavit
signed by the party making the demand stating facts to show that said party is
entitled to receive the Deposit pursuant to the terms of this Agreement. Upon
receipt of such demand, Escrow Agent shall give ten (10) days written notice to
the other party of such demand and of Escrow Agent's intention to remit the
Deposit to the party making the demand on the stated date, together with a copy
of the affidavit. If Escrow Agent does not receive a written objection before
the proposed date for remitting the Deposit, Escrow Agent is hereby authorized
to so remit. If, however, Escrow Agent actually receives written objection from
the party before the proposed date on which the Deposit is to be remitted,
Escrow Agent shall continue to hold the Deposit until otherwise directed by
joint written instructions from Sellers and Buyer or until a final judgment of
an appropriate court. In the event of such dispute, Escrow Agent may deposit the
Deposit with an appropriate court and, after giving written notice of such
action to the parties, Escrow Agent shall have no further obligations with
respect to the Deposit;
(c) In the event that this transaction is consummated as
contemplated by this Agreement, then the entire amount of the Deposit, together
with any interest accrued thereon, shall be credited against the Purchase Price.
The entire amount of the Deposit, together with any interest accrued thereon,
shall be returned immediately to Buyer in the event that the transaction fails
to close for reasons other than Buyer's failure to perform material obligations
under this Agreement. IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT SHOULD FAIL TO CLOSE FOR THE REASON THAT BUYER FAILS TO PERFORM
OBLIGATIONS TO BE PERFORMED AT CLOSING UNDER THIS AGREEMENT, THE ENTIRE AMOUNT
OF THE DEPOSIT, PLUS ACCRUED INTEREST, SHALL BE RETAINED BY SELLERS AS
LIQUIDATED DAMAGES. BUYER AND SELLERS HEREBY ACKNOWLEDGE AND AGREE THAT SELLERS'
DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY BUYER WOULD BE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS
ACCRUED INTEREST IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES
SELLERS WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT
FAILS TO CLOSE, AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT. BUYER AND SELLERS AGREE THAT SELLERS'
RIGHT TO RETAIN THE DEPOSIT PLUS ACCRUED INTEREST SHALL BE THE SOLE REMEDY OF
SELLERS IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER.
20
ACCEPTED AND AGREED TO:
____________________________ ______________________________
Buyer's Initials Seller's Initials
This Section 5.1 is intended only to liquidate and limit Sellers' rights to
-----------
damages arising due to Buyer's failure to purchase the Properties and shall not
limit the indemnification obligations of Buyer pursuant to any documents
delivered pursuant to this Agreement or any provisions of this Agreement.
Section 5.2 Sellers' Default
(a) Subject to subsection (b) below, if (a) the conditions
precedent set forth in Section 3.1(b) shall have been satisfied or waived
--------------
(provided that Buyer shall not be required to tender formally the Purchase Price
but only to demonstrate the commitment of immediately available funds to pay
such Purchase Price) and (b) Sellers shall fail to perform its material closing
obligations under this Agreement, then, in addition to Buyer's right to
terminate this Agreement and return of the Deposit set forth in Section 5.1
-----------
above, Buyer shall have the right to recover its actual monetary damages from
Sellers, up to an aggregate maximum amount of Two Million Five Hundred Thousand
Dollars ($2,500,000) or to pursue an action for specific performance. The
foregoing maximum damages amount shall not apply to claims based upon breach of
Sections 7.2, 7.10 or 7.14 of this Agreement. Any liabilities relating to breach
-------- --- ---- ----
of representation and warranty shall be subject to the additional limitations
set forth in Section 4.4 and 7.4. In no event shall Sellers be liable to Buyer
----------- ---
for any punitive damages based upon any breach of this Agreement, including
breaches of representation or warranty. Buyer further agrees that recourse for
any liability of the Sellers under this Agreement or any document or instrument
delivered simultaneously or in connection with or pursuant to this Agreement
shall be limited solely to the Properties and, following the Closing, to the
extent of the Purchase Price allocated and distributed to the Sellers. Subject
to applicable principles of fraudulent conveyance, in no event shall Buyer seek
satisfaction for any obligation from any shareholders, officers, directors,
employees, agents, legal representatives, successors or assigns of such trustees
or beneficiaries, nor shall any such person or entity have any personal
liability for any such obligations of any Seller.
(b) Buyer and Seller agree that in no event shall (i) the
failure to satisfy one or more of the conditions set forth in Sections
--------
3.1(a)(iii), (iv) (v) or (vi), and Section 3.1(b)(iii), or, (ii) the occurrence
-----------------------------
of either a Tenant Bankruptcy (as defined in Section 3.1(a)(viii)) or an
Intervening Environmental Occurrence; be considered a default of either party
hereunder entitling any party to a monetary claim for damages, but shall only
affect the Closing as a failure of a condition to Closing and shall be handled
in accordance with Section 3.2.
-----------
ARTICLE VI.
CLOSING
Section 6.1 Escrow Arrangements. Immediately after the execution of
this Agreement, an escrow for the purchase and sale contemplated by this
Agreement shall be opened
21
by Buyer and Sellers with Escrow Company. At least one business day prior to the
Closing Date, Sellers and Buyer shall each deliver escrow instructions to Escrow
Company consistent with this Article VI, and designating Title Company as the
"Reporting Person" for the transaction pursuant to Section 6045(e) of the
California Revenue and Taxation Code (the "Code") and the equivalent under the
laws of the State of Washington and the State of Nevada, if applicable. In
addition, the parties shall deposit in escrow, at least one business day prior
to the Closing Date (unless otherwise provided below in this Section 6.1) the
-----------
funds and documents described below:
(a) Sellers shall deposit (or cause to be deposited):
(i) a duly executed and acknowledged grant deed or
special warranty deed, as applicable, pertaining to the Real Property portion of
each of the Properties, each of which shall be in recordable form mutually
acceptable to the Buyer and the Title Company and include any and all required
affidavits regarding valuation or otherwise required for recordation of such
deeds (collectively, the "Deeds");
(ii) a duly executed ▇▇▇▇ of sale pertaining to the
Personal Property portion of each of the Properties, each in the form attached
to this Agreement as Exhibit G (collectively, the "Bills of Sale");
---------
(iii) with respect to the Ground Lease, a duly executed
counterpart assignment and assumption pertaining to the such Ground Lease,
substantially in the form attached to this Agreement as Exhibit G (the
---------
"Assignment of Ground Lease") and a "redirect" notice to the landlord thereunder
to send all notices and communications thereunder to Buyer at its offices in New
York and California;
(iv) a duly executed counterpart assignment and assumption
pertaining to the Intangible Property portion of each of the Properties, each in
the form attached to this Agreement as Exhibit G (collectively, the "Assignments
---------
of Intangibles");
(v) a duly executed counterpart assignment and assumption
pertaining to the Leases, each in the form attached to this Agreement as Exhibit
-------
G (collectively, the "Assignments of Leases");
-
(vi) duly executed counterpart Lender Consent and
Assumption Documents with respect to the Assumed Loans;
(vii) a duly executed counterpart assignment agreement by
which Seller assigns to Buyer of all the tenant security deposits held by Seller
under the Leases (if any), substantially in the form attached hereto as Exhibit
-------
G;
-
(viii) a certificate from each Seller certifying the
information required by the Code to establish that the transaction contemplated
by this Agreement is exempt from the tax withholding requirements of the State
of California (the "California Certificate") and the equivalent with respect to
the State of Washington and the State of Nevada, if applicable;
22
(ix) a certificate from each Seller certifying the
information required by 1445 of the Code to establish, for the purposes of
avoiding Buyer's tax withholding obligations, that Seller is not a "foreign
person" as defined in 1445(f)(3) of the Internal Revenue Code (the "FIRPTA
Certificate") and the state law equivalent for each Property, if applicable;
(x) outside of escrow, to the extent in Seller's
possession or control, the originals of all Leases, Contracts and tenant files
and all keys to the Properties;
(xi) A certificate reconfirming the representations
provided for in Section 4.1;
-----------
(xii) Notices to tenants advising them of the transfer of
the Properties to Buyer and directing payment of rent and other charges to Buyer
or its designated representative in form attached hereto as Exhibit G;
---------
(xiii) Such other instruments as Buyer may reasonably
require in connection with or required to evidence the consummation of the
transactions contemplated by this Agreement;
(xiv) The Tenant Estoppels, or Seller's Estoppel delivered
in lieu thereof, as described in Section 3.1(v);
--------------
(xv) An estoppel certificate from the Landlord under the
Ground Lease and from each REA party as described in Section 3.1(vi) or Seller's
estoppels in lieu thereof as permitted by Section 3.1(a)(vi);
(xvi) Such notice to the other REA parties respecting the
change in ownership as may be required by the REA;
(xvii) A copy of Escrow Agent's proposed Closing Statement
detailing the prorations to be made at Closing pursuant to Section 6.3 of this
-----------
Agreement initialed by Seller; and
(xviii) Such other documents, agreements, or certificates
as set forth in any provision of this Agreement, including without limitation, a
statement for each Property providing Buyer with a stub period reconciliation of
CAM charges as estimated and paid prior to the Closing Date; provided, however,
that such statement shall not be deemed to be a representation or warranty of
Sellers hereunder but shall be used solely for the purposes of effectuating the
closing and post-closing prorations related to CAM charges.
(b) Buyer shall deposit:
(i) on or prior to the opening of business in California
on the Closing Date, immediately available funds sufficient to pay the balance
of the Purchase Price, plus sufficient additional cash to pay Buyer's share of
all escrow costs and closing expenses;
23
(ii) a duly executed counterpart for each of the
Assignments of Intangibles, Assignments of Leases and Assignment of Ground Lease
and Lender Consent and Loan Assumption Documents;
(iii) a copy of Escrow Agent's proposed Closing Statement
detailing the prorations to be made at Closing pursuant to Section 6.3 of this
-----------
Agreement, initialed by Buyer; and
(iv) Such other documents, agreements or certificates as
set forth in any provision of this Agreement, including without limitation an
acknowledgement of the CAM reconciliation provided by Seller in subsection
6.1(a)(xviii) above, so as to reflect Buyer's concurrence in the proration
calculation set forth in Subsection 6.3(c)(iii)(C).
Section 6.2 Closing. Escrow Company shall close escrow (the
"Closing") on the Closing Date by:
(a) recording the Deeds;
(b) causing Title Company to issue the Title Policies to Buyer;
(c) delivering to Buyer the items required to be deposited with
the Escrow Company pursuant to Section 6.1(a), except for items required by
--------------
clauses (i), (iv), (ix), (xi) and (xiv) thereof; and
(d) delivering to Sellers (i) a counterpart for each of the
Assignments of Intangibles Assignment of Leases and Assignment of Ground Lease
executed by Buyer, and (ii) funds in the amount of the Purchase Price, as
adjusted for credits, prorations and closing costs in accordance with this
Article VI and as allocated pursuant to the direction of the Sellers, and (iii)
copies of all documents delivered to Buyer.
Section 6.3 Prorations. Expenses related to the operation of the
Properties shall be prorated as follows:
(a) Taxes. Real estate taxes, personal property taxes and any
-----
general or special assessments with respect to the Properties which have been
assessed but have not become due and payable on the Closing Date and which are
not the direct payment obligation of tenants pursuant to the Leases (as opposed
to a reimbursement obligation) shall be prorated as of the Closing Date -- to
the end that Sellers shall be responsible for all taxes and assessments that are
allocable to any period prior to the Closing Date regardless of whether they are
due and payable or a lien prior to the Closing Date and Buyer shall be
responsible for all taxes and assessments that are allocable to any period from
and after the Closing Date. If the actual amount of taxes, assessments or other
amounts to be prorated for the year in which the Closing occurs is not known as
of the Closing Date, the proration shall be based on the parties' reasonable
estimates of such taxes, assessments and other amounts. To the extent any taxes
which are the subject of an appeal have been paid by Sellers under protest and
the appeal results in Buyer receiving a credit toward future tax liability or a
refund, then Buyer shall, within ten (10) days following receipt of such refund
or notice of such credit, pay to Sellers the full amount of such refund or
credit
24
allocable to the period prior to the Closing Date, excluding, however, any
portion of such refund or credit that is actually credited to the tenants
pursuant to any Leases or to other parties by existing contract.
(b) Prepaid Expenses. Buyer shall be charged for those prepaid
----------------
expenses paid by Sellers which are directly or indirectly allocable to any
period from and after the Closing Date incurred pursuant to Contracts for
services to be rendered after the Closing Date, annual permit and confirmation
fees, fees for licenses and all security or other deposits paid by Sellers to
third parties which Buyer elects to assume and to which Buyer then shall be
entitled to the benefits and refund following the Closing Date.
(c) Property Income and Expense. The following prorations and
---------------------------
adjustments shall occur as of 11:59 p.m. on the date immediately preceding the
Closing, such that all items of income and expense with respect to the Closing
Date itself shall be the Buyer's right and responsibility. Prior to the Closing
Date, Seller shall provide all information to Buyer required to calculate such
prorations and adjustments and representatives of Buyer and Seller shall
together make such calculations:
(i) General. Subject to the specific provisions of clauses
-------
(ii), (iii) and (iv) below, income and expense shall be prorated on the basis of
a 30-day month and on a cash basis (except for items of income and expense that
are payable less frequently than monthly, which shall be prorated based on the
number of days in the stub period). All such items attributable to the period
prior to the Closing Date, including, without limitation, interest on or paid in
connection with the Loan Documents (as defined herein) shall be credited to
Sellers; all such items attributable to the period on and following the Closing
Date shall be credited to Buyer. Buyer shall be credited in escrow with (a) any
portion of rental agreement or lease deposits which are refundable to the
tenants and have not been applied to outstanding tenant obligations in
accordance with the terms of the applicable Lease and (b) rent prepaid beyond
the Closing Date. Sellers shall transfer Sellers' entire interest in any letters
of credit or certificates of deposit held by Sellers as the deposits described
in clause (a) above and shall diligently cooperate with Buyer in obtaining any
reissuance or confirmation of the effect of the transfer of such instruments.
Buyer shall not be entitled to any interest on rental agreement or lease
deposits or prepaid rent accrued on or before the Closing Date, except to the
extent any such amount of interest is refundable or payable to any tenant under
a Lease. To the extent possible, Seller shall arrange for a billing under all
those Contracts for which fees are based on usage and with utility companies for
a billing for utilities, to include all utilities or service used up to the day
Closing occurs, and Seller shall pay the resultant bills. In the event any of
the Contracts cover periods beyond the Closing , the same shall be prorated on a
per diem basis. Gas, water electricity, heat, fuel, sewer and other utilities
charges to which this proration cannot be applied, and the governmental
licenses, permits and inspection fees relating to the Property, shall be
prorated on a per diem basis. Sellers shall be credited in escrow with any
refundable deposits or bonds held by any utility, governmental agency (the
amounts of which as of the date hereof have been estimated on Schedule 6.3(c)),
lender under the Assumed Loans (provided same is specified in the Lender Consent
and Assumption Documents), or service contractor, to the extent such deposits or
bonds are assigned to Buyer on the Closing Date.
25
(ii) Leasing Costs. Buyer shall be credited in escrow
-------------
with any leasing commissions, tenant improvements or other allowances to be paid
or endured by Buyer on or after the Closing Date with respect to the current
term of any Lease or Lease modification executed, or any extension term or
expansion of premises exercised, in each case, prior to the date of this
Agreement including the In-Negotiation Leases, and Sellers shall pay on or
before the Closing Date all such items required to be paid, and with respect to
a period, prior to the Closing Date. Sellers shall be credited in escrow with
any leasing commissions, tenant improvement or other allowances paid or endured
by Sellers prior to or during the Contract Period to the extent such items
relate to other Leases or Lease modifications executed or extensions of terms or
expansions of premises that are exercised after the date of this Agreement
(other than In-Negotiation Leases) with Buyer's consent or deemed consent as set
forth herein and are equitably allocable to that portion of the stabilized term
(i.e. the term following the tenant's entry into occupancy and commencement of
unabated rental obligations) of any such Lease following the Closing Date. Buyer
shall assume all obligations for any leasing commissions, tenant improvement or
other allowances payable following the Closing Date with respect to such Leases
or Lease modifications executed following the date of this Agreement (other than
In-Negotiation Leases). Any expenditures or commitments to expenditures relating
to Leases or modifications executed following the date of this Agreement in
excess of the amounts budgeted and approved as part of Buyer's approval of the
Lease shall be subject to Buyer's specific approval which shall not be
unreasonably withheld.
(iii) Rents.
(A) Rents payable by tenants under the Leases shall be
prorated as and when collected (whether such collection occurs prior to, on, or
after the Closing Date). Buyer shall receive a credit for the amounts actually
received before the Closing Date and which pertain to any period after the
Closing Date. Buyer shall not receive a credit at the Closing for any rents for
the month in which the Closing occurs which are in arrears and have not then
been received. As to any tenants who are delinquent in the payment of rent on
the Closing Date, Buyer shall use reasonable efforts (but shall not be required
to commence legal action or terminate or evict a tenant) to collect or cause to
be collected such delinquent rents following the Closing Date. Any and all rents
so collected by Buyer or Seller following the Closing (less a deduction for all
reasonable collection costs and expenses incurred by Buyer) shall be
successively applied (after deduction for Buyer's reasonable collection costs)
to the payment of (x) rent due and payable in the month in which the Closing
occurs, (y) rent due and payable in the months succeeding the month in which the
Closing occurs (through and including the month in which payment is made) and
(z) rent due and payable in the months preceding the month in which the Closing
occurs. If all or part of any rents or other charges received by Buyer following
the Closing are allocable to Sellers pursuant to the foregoing sentence, then
such sums shall be promptly paid to Sellers. Sellers reserve the right to pursue
any damages remedy Sellers may have against any tenant with respect to such
delinquent rents, but shall have no right to exercise any other remedy under the
Lease (including, without limitation, termination or eviction) and shall not
commence any legal action against a tenant for a period of 90 days following the
Closing Date.
26
(B) Percentage rent (i.e., that portion of the rent
payable to the landlord by a tenant under a Lease which is a percentage of the
amount of sales or of the dollar amount of sales), if any, payable under each
Lease shall be prorated with respect to the lease year thereunder in which the
Closing occurs on a per diem basis as and when collected. Any percentage rent
collected by Buyer including any percentage rent which is delinquent and
pertaining to (i) an entire lease year or accounting period of a tenant under a
Lease which ends on a date prior to the date of Closing, and (ii) that portion
of a lease year or account period of such tenant covering a period prior to the
date of Closing where such lease year or accounting period begins prior to the
date of Closing and ends thereafter shall in both cases be paid to Sellers
within thirty (30) days of receipt by Buyer. Buyer shall not be required to
institute any action or proceeding to collect any delinquent percentage rent.
(C) Escalation charges for real estate taxes, parking
charges, operating and maintenance expenses, escalation rents or charges,
electricity charges, cost of living increases or any other charges of a similar
nature other than fixed or base rent and percentage rent under the Leases
(collectively, the "Additional Rents") shall be prorated as and when collected,
as of the Closing Date between Buyer and Sellers based on the actual number of
days of the year and month which shall have elapsed as of the Closing Date. As a
means to facilitate an accurate proration of such Additional Rents prior to the
Closing Date, Sellers shall provide Buyer with information in reasonable detail
regarding Additional Rents which were received by Sellers from January 1, 2000
to the Closing Date and the amount of reimbursable expenses paid by Sellers from
January 1, 2000 to the Closing Date in the stub reconciliation as set forth in
Subsection 6.1(a)(xviii). On or before the date which is sixty (60) days
following the end of the calendar year in which the Closing occurs, Buyer shall
deliver to Sellers a reconciliation of all expenses reimbursable by tenants
under the Leases for such calendar year, and the amount of Additional Rents
received by Sellers and Buyer relating thereto (the "Reconciliation") which
shall incorporate the calculations made in connection with the Closing. Upon
reasonable notice and during normal business hours, each party shall make
available to the other all information reasonably required to confirm the
Reconciliation. In the event of any overpayment of Additional Rents by the
tenants to Sellers, Sellers shall promptly, but in no event later than fifteen
(15) days after receipt of the Reconciliation, pay to Buyer the amount of such
overpayment (in excess of amounts calculated and prorated on the Closing Date
therefor) and Buyer, as the landlord under the particular Leases, shall pay or
credit to each applicable tenant the amount of such overpayment. In the event of
an underpayment of Additional Rents by the tenants to Sellers, Buyer shall pay
to Sellers the amount of such underpayment (in excess of amounts calculated and
prorated on the Closing Date therefor) within fifteen (15) days following
Buyer's receipt of any such amounts from the tenants.
(D) If, within one year following the Closing, any
tenant makes a claim against Buyer for an overcharge in CAM charges or other
Additional Rents assessed and collected by Seller with respect to a period prior
to the Closing Date (including without limitation any withholding of rent by
reason thereof), Seller will and hereby agrees to defend, indemnify and hold
Buyer harmless from and against any loss, expense, or damage (including without
limitation withheld rents or reasonable attorney's fees) arising from or
relating to any such alleged overcharge or rent withholding for the period prior
to the Closing Date. Buyer and Seller(s) shall reasonably cooperate with each
other in contesting all such tenant
27
claims, if contesting is mutually agreed by the parties, each exercising
commercially reasonable business judgment, as appropriate. The provisions of
this Section 6.3(c)(iii)(D) shall survive Closing for a period of one year (and
----------------------
for such additional period as may be necessary to resolve any such claim made
within such one year period) and shall be subject to the limitations of Section
-------
7.4.
---
(iv) Adjustments to Prorations. After the Closing, the
-------------------------
parties shall from time to time, as soon as is practicable after accurate
information becomes available and in any event within one hundred and eighty
(180) days following the Closing Date, recalculate and reapportion any of the
items subject to proration or apportionment (i) which were not prorated and
apportioned at the Closing because of the unavailability of the information
necessary to compute such proration, or (ii) which were prorated or apportioned
at the Closing based upon estimated or incomplete information, or (iii) for
which any errors or omissions in computing prorations at the Closing are
discovered subsequent thereto, and thereafter the proper party shall be
reimbursed based on the results of such recalculation and reapportionment.
Unless otherwise specified herein, all such reimbursements shall be made on or
before thirty (30) days after receipt of notice of the amount due. Any such
reimbursements not timely paid shall bear interest at a per annum rate equal to
ten percent (10%) from the due date until all such unpaid sums together with all
interest accrued thereon is paid if payment is not made within ten (10) days
after receipt of a ▇▇▇▇ therefor.
Section 6.4 Credits. Tax escrow and other deposits, if any, held by
any lender in connection with the Assumed Loans shall be assigned to Buyer at
Closing and Seller shall receive a credit at Closing for the amount thereof;
provided that with respect to amounts held by the lender on the Pavilions
Property, if such lender is not willing to remove the requirement to hold
$200,000 in reserve, Seller shall be credited with $120,000, rather than the
--------
full $200,000 reserve deposit; and provided further, with respect to the
--------
$880,000 replacement reserve for the ▇▇▇▇▇▇▇▇'▇ premises held by the lender on
the Torrance Property (the "▇▇▇▇▇▇▇▇'▇ Reserve"), the provisions of Schedule 6.4
shall apply. Notwithstanding the foregoing, Buyer and Seller agree to cooperate
with each other during the Contract Period and to negotiate with each of the
lenders in connection with finalization of the Lender Consent and Assumption
Documents to remove one or both of the foregoing requirements or to provide for
substitute requirements acceptable to all parties, or with respect to the
$200,000 reserve requirement, to allow such funds to be placed in an interest
bearing account. If the $200,000 reserve requirement is eliminated, Seller shall
be credited with the full $200,000 amount. If either or both of the reserve
requirements are modified, Seller will be credited with an additional fair and
equitable amount to reflect the effect of such modification.
Section 6.5 Other Closing Costs.
(a) Sellers shall pay (i) fifty percent (50%) of any escrow or
other customary fees charged by or reimbursable to the Title Company for escrow
services, (ii) the costs of the Owner's portion of the title premium in
connection with the issuance of the Title Policies, but not any costs associated
with policies issued to lenders of Buyer, if any, and provided that Seller shall
not pay the title premium costs for extended coverage on any of the California
and Nevada Properties, (iii) the costs of providing a standard ALTA survey for
each
28
Property, but not costs associated with the updating or recertification of the
same (iv) all governmental documentary transfer or transaction taxes or fees due
on the transfer of the Properties, including excise taxes, if applicable, (v)
the costs payable to the landlord with respect to the assignment and assumption
of the Ground Lease and (vi) the assumption, transfer and/or application fees
required to be paid to the lenders as consideration in exchange for the lender's
review of and delivery of the Lenders Consents (the "Loan Assumption Fees"), but
exclusive of lender's and/or Buyer's transactional costs associated with the
Assumed Loans, such as lenders' and borrower's legal fees, lenders title policy
(premiums, loan document recording fees or mortgage taxes, if any, and out-of-
pocket lender reimbursements for diligence or escrow charges (all such costs and
expenses being referred to herein as the "Assumed Loan Transaction Costs")).
(b) Sellers agree, not later than five (5) business days
following the execution of this Agreement, to request consents from the lenders
with respect to the Assumed Loans for the assumption by Buyer of the Assumed
Loans, and to use good faith diligent efforts to obtain same as promptly as
possible following the Due Diligence Completion Date. Buyer shall cooperate with
Sellers and shall negotiate reasonably with lenders regarding the form of the
Lender Consent and Loan Assumption Documents to be delivered at Closing and with
respect to the amount of any and all Loan Assumption Fees (as defined in Section
-------
6.5(a)).
------
(c) Buyer shall pay (i) all title premiums in connection with
the issuance of any and all endorsements to the Title Policies requested by
Buyer or any lender to Buyer and, with respect to each of the Properties located
in California and Nevada, the costs for the portion of the title premium
relating to ALTA extended coverage, (ii) fifty percent (50%) of any escrow or
other customary fees charged by or reimbursable to the Title Company, and (iii)
the Assumed Loan Transaction Costs.
Section 6.6 Further Documentation. At or following the close of
escrow, Buyer and Sellers shall execute any certificate or other instruments
required by this Agreement, law or local custom or otherwise reasonably
requested by the Title Company and/or the Escrow Agent to effect the
transactions contemplated by this Agreement.
Section 6.7 Cooperation in Exchange. The parties acknowledge and
agree that either Buyer or certain Sellers may elect to assign their interest in
this Agreement to an exchange facilitator for the purpose of completing an
exchange of the Properties or interests in the Properties in a transaction which
will qualify for treatment as a tax deferred exchange pursuant to the provisions
of Section 1031 of the Internal Revenue Code of 1986 and applicable state
revenue and taxation code sections (a "1031 Exchange"). Each party agrees to
cooperate with any party so electing in implementing any such assignment and
1031 Exchange, provided that such cooperation shall not entail any material
additional expense to the non-electing party, cause such party to take title to
any other property or cause such party exposure to any liability or loss of
rights or benefits contemplated by this Agreement or delay the Closing. No such
assignment by any party shall relieve such party from any of its obligations
hereunder, nor shall such party's ability to consummate a tax deferred exchange
be a condition to the performance of such party's obligations under this
Agreement.
29
Section 6.8 Assignment of Indemnities. Buyer and Sellers acknowledge
that Sellers shall transfer and assign to Buyer at the Closing, as part of the
Intangible Property, Sellers' rights and interests in and to any
indemnifications or covenants from third parties relating to the environmental
condition of the Properties (reserving solely Sellers' rights to the benefit of
such indemnifications and covenants protecting Sellers with respect to Sellers
ownership of the Properties). Following the Closing, Buyer and Sellers shall
cooperate in the pursuit of any and all claims arising under such instruments,
which cooperation shall include, as required, Sellers' expression and pursuit of
claims for the benefit of Buyer -- provided that such pursuit is at Buyer's cost
and does not expose Sellers to material additional liability.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Damage or Destruction.
(a) Buyer shall be bound to purchase each of the Properties as
required by the terms of this Agreement without regard to the occurrence or
effect of any damage to or destruction of any of the Properties or condemnation
of any Property by right of eminent domain, provided that the occurrence of any
damage or destruction involves repair costs of less than the greater of $500,000
or five percent (5%) of the Property's Allocated Purchase Price, and any
condemnation does not affect the use and value of the affected Property in other
than a minor or immaterial manner. If Buyer is so bound to purchase a Property
notwithstanding the occurrence of damage, destruction or condemnation, then upon
the Closing: (i) in the event of damage covered by insurance or an immaterial
condemnation, Buyer shall receive a credit against the Allocated Purchase Price
for such Property in the amount (net of collection costs and costs of repair
reasonably incurred by Sellers and not then reimbursed) of any insurance
proceeds or condemnation award collected and retained by Sellers as a result of
any such damage or destruction or condemnation plus (in the case of damage) the
amount of the deductible portion of Sellers' insurance policy, and Seller shall
assign to Buyer all rights to such net insurance proceeds or condemnation awards
as shall not have been collected prior to the close of escrow; and (ii) in the
event of damage not covered by insurance, Buyer shall receive a credit (not to
exceed the greater of $500,000 or five percent (5%) of the Property's Allocated
Purchase Price for each affected Property) in the amount of the estimated cost
to repair the damage.
(b) If, prior to the Closing Date, any Property suffers damage
or destruction that involves repair costs in excess of the greater of $500,000
or five percent (5%) of the Property's Allocated Purchase Price or condemnation
which affects the use and value of the Property in other than a minor and
immaterial manner, then Buyer may elect to exclude such Property from the
Properties being transferred by giving written notice of such election to the
other party promptly following the event of damage, destruction or condemnation
and such event shall constitute an Intervening Matter. In the event of the
exclusion of any Property pursuant to this Section 7.1(b), the parties shall be
--------------
bound to consummate the purchase and sale of the balance of the Properties in
accordance with this Agreement and the Purchase Price shall be reduced by an
amount equal to the Allocated Purchase Price of the Property so excluded.
30
Section 7.2 Fees & Commissions.
(a) Each party to this Agreement warrants to the other that,
except as otherwise provided in subparagraph (b) below, no person or entity can
properly claim a right to a real estate or investment banker's commission,
finder's fee, acquisition fee or other brokerage-type compensation based upon
the acts of that party with respect to the transaction contemplated by this
Agreement. Each party hereby agrees to indemnify and defend the other against
and to hold the other harmless from any and all loss, cost, liability or expense
(including but not limited to attorneys' fees and returned commissions)
resulting from any breach of the foregoing warranty.
(b) The parties hereby acknowledge that ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated has acted as Sellers' investment banker in
connection with this transaction. Sellers shall be responsible for paying any
commission or fees due to such party in connection with this transaction.
Section 7.3 Successors and Assigns. Prior to the payment of the
Additional Deposit on the Due Diligence Completion Date as contemplated in
Section 5.1 above, Buyer may not assign any of Buyer's rights or duties
-----------
hereunder without the prior written consent of Sellers which consent may be
granted, withheld or conditioned in Sellers' sole discretion. After the payment
of such Additional Deposit, Buyer may assign any of Buyer's rights or duties
hereunder upon written notification to Sellers to any affiliate of Buyer;
provided that for purposes of this Section 7.3 an "affiliate of Buyer" shall
-----------
mean or refer to any entity which is controlled by or under common control with
Buyer or Kimco Income Operating Partnership, L.P. Seller shall not assign its
rights or interest in and to this Agreement, if such assignment would in any way
affect Buyer's rights or obligations hereunder, unless Seller provides Buyer
sufficient explanation as to such assignment so as to assure Buyer that such
affect is not adverse to Buyer's interests hereunder. If Seller proposes any
such assignment, Buyer shall not unreasonably withhold, condition or delay its
review of such proposed assignment.
Section 7.4 Limitations. Any claim of Buyer based upon a breach of
any representation or warranty set forth in Sections 4.1(b), (c) or (d) or
--------------- --- ---
breach of a covenant set forth in Section 4.2 shall be expressed, if at all, in
-----------
writing delivered to Sellers promptly following Buyer's discovery and setting
forth in reasonable detail the basis and character of the claim (a "Claim
Notice"). Notwithstanding the foregoing, (i) any matters identified by Buyer
during the Due Diligence Period which would represent either/or both of a breach
of one or more representations or Intervening Matters shall not be the subject
of any claim for a breach of representation or a failure of a closing condition
under this Section 7.4 or Article V after the Closing occurs, (ii) Buyer shall
-----------
not make any claim following the Closing on account of a breach of
representations and warranties or breach of Section 4.2 with respect to a
-----------
Property unless such claim is a Material Claim, (iii) Sellers' aggregate
liability for claims arising out of such representations and warranties and
breaches of Section 4.2 shall not exceed the maximum Pool Material Claim Amount,
-----------
and (iv) Buyer shall have the right to deliver to Sellers Claim Notices with
respect to any breach of representation or warranty or Section 4.2 covenants
-----------
discovered by Buyer following the Due Diligence Completion Date but prior to the
Closing Date only if such notice is delivered prior to the Closing Date. As to
all Claim Notices received following the
31
Closing Date, Buyer shall have the right to proceed against Sellers for actual
monetary damages based upon such Claim Notice, subject to the cure rights and
the limitations set forth above and in Section 5.2(b). Provided, that Sellers'
--------------
liability, if any, under any Seller's Estoppel delivered on or before the
Closing shall not be included in the aggregate measure of any limitation on
claims brought under this Section 7.4.
-----------
Section 7.5 Notices. All notices or other communications required or
provided to be sent by either party shall be in writing and shall be sent by
United States Postal Service, postage prepaid or certified mail, return receipt
requested, by any nationally known overnight delivery service, by courier, by
facsimile transmission with answer-back acknowledged or in person. All notices
shall be deemed to have been given forty-eight (48) hours following deposit in
the United States Postal Service or upon personal delivery if sent by overnight
delivery service, courier, facsimile (with electronic confirmation) or
personally delivered. All notices shall be addressed to the party at the address
below:
To Sellers:
CT Operating Partnership, L.P.,
a California limited partnership
Center Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
P.O. Box 10010
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
CT Operating Partnership, L.P.,
a California limited partnership
Center Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
P.O. Box 10010
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Agent:
Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer:
c/o Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
c/o Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with this Section 7.5. The inability
-----------
to deliver because of a changed address of which no notice was given, or
rejection or other refusal to accept any notice, shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept. Any notice to be given by any party hereto may be given
by the counsel for such party.
Section 7.6 WAIVER OF JURY TRIAL. THE PARTIES HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract
33
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement for the other parties to enter into the transaction, that the other
parties have already relied on this waiver in entering into this Agreement and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that each has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
-------
7.6 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
---
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
ACCEPTED AND AGREED TO:
------------------------ -------------------------
Buyer's Initials Seller's Initials
Section 7.7 Parties Representatives. Buyer shall be entitled to rely
upon any notice, approval or decision expressed by the following individuals
acting on behalf of all Sellers: ▇▇▇▇▇ ▇▇▇▇▇, Esq. or such other individual or
individuals designated by Sellers. Sellers shall be entitled to rely upon any
notice, approval or decision expressed by the following individuals acting on
behalf of Buyer: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or such other individual or individuals
designated by Buyer.
Section 7.8 Time. Time is of the essence of every provision contained in
this Agreement. Notwithstanding the foregoing, in the event any action required
to be timely performed is incapable of being performed by a party for reasons
outside its reasonable control, such party shall have an additional three
business (3) days to deliver such performance.
Section 7.9 Incorporation by Reference. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.10 Attorneys' Fees. In the event any dispute between Buyer and
any of Sellers should result in litigation, the prevailing party (i.e., non-
appealable final judgment) shall be reimbursed for all reasonable costs incurred
in connection with such litigation, including, without limitation, reasonable
attorneys' fees and costs.
Section 7.11 Construction. The parties acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
34
Section 7.12 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California (without giving effect
to conflicts of laws principles).
Section 7.13 Operating Records. Sellers agree to make available to
Buyer from time to time, but not more frequently than quarterly, upon reasonable
notice, for a period of two years following the Closing Date, Sellers' operating
records for the Properties, to the extent Sellers have such operating records,
in order to permit Buyer to prepare such historical financial statements for the
Properties as Buyer requires to satisfy legal or contractual obligations.
Sellers shall have no obligation to prepare any operating statements or incur
any expense in connection with the provisions of this section.
Section 7.14 Confidentiality. Buyer and Sellers each acknowledge and
agree that this Agreement and the terms and conditions set forth are to be kept
confidential unless and until the Closing (as defined herein) occurs in
accordance with and subject to the terms of this Section 7.14. Each party shall
------------
be entitled to discuss and disclose the transaction with employees, agents,
consultants, lenders, clients, partners and representatives of such party --
each of who shall be directed by the disclosing party to maintain such
information in confidence, provided however that if Buyer intends to disclose
specific confidential information to any partner other than New York State
Common Retirement Funds, it shall use its best efforts to notify Sellers as to
the intended recipient prior to the release of any such confidential
information. Buyer's public release of information with respect to the pendency
of the transaction shall be subject to the review and reasonable approval of
Sellers and Sellers' public release of information shall be subject to Buyer's
review and reasonable approval. Seller and Buyer (or Buyer's Affiliates), as a
public entity, shall be permitted to disclose any matter relating to the
contemplated transaction as such party may determine is necessary in connection
with fulfilling its obligations under state and federal securities laws,
provided that each of Seller and Buyer shall use its or their respective good
faith efforts to notify the other and permit prior review and concurrence of any
press releases discussing this agreement and/or the transactions contemplated
herein.
Section 7.15 Counterparts. This Agreement may be executed in one or more
counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.16 Entire Agreement. Excepting solely the provisions of that
certain Confidentiality Agreement dated as of April 4, 2000 which such
provisions do not pertain to the Properties that are the subject of this
Agreement, this Agreement and the attached exhibits, which are by this reference
incorporated herein, and all documents in the nature of such exhibits, when
executed, contain the entire understanding of the parties and supersede any and
all other written or oral understanding. In amplification of the foregoing, upon
the Closing Buyer's obligations regarding "Proprietary Information" in such
Confidentiality Agreement shall terminate with regard to all closed Properties.
[Signatures Pages Follow]
35
IN WITNESS WHEREOF, Sellers and Buyer have executed this Agreement as
of the day and year first written above.
"SELLERS"
CT OPERATING PARTNERSHIP, L.P., a California
limited partnership
By: CENTER TRUST, INC.
a Maryland corporation,
its general partner
By:
--------------------------------
Name:
Title:
CT RETAIL PROPERTIES FINANCE I, LLC, a Delaware
limited liability company,
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC.
a Maryland corporation,
its general partner
By:
---------------------------------
Name:
Title:
CENTER TRUST RETAIL PROPERTIES
FINANCE III, LLC, a Delaware limited liability
company,
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC.
a Maryland corporation,
its general partner
By:
--------------------------------
Name:
Title:
S-1
CT RETAIL PROPERTIES FINANCE IV,
LLC, a Delaware limited liability company,
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC.
a Maryland corporation,
its general partner
By:
--------------------------------
Name:
Title:
"BUYER"
KIMCO REALTY CORPORATION,
a Maryland corporation
By:
-------------------------------------
Name:
Title:
S-2
