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EXHIBIT 10.12
CONTRACT OF SALE
BETWEEN
DRM THIRTY-THREE REALTY CORPORATION
SELLER
AND
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
PURCHASER
Dated: July 7, 1997
Shopping Center Premises:
▇▇▇▇ Crossing, Stockbridge, Georgia
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS..................................................1
2. SUBJECT OF SALE..............................................4
3. PURCHASE PRICE...............................................4
4. "SUBJECT TO" PROVISIONS......................................5
5. SPACE LEASES.................................................6
6. LEASING PRACTICE.............................................6
7. APPORTIONMENTS AND REIMBURSEMENTS............................7
8. VIOLATIONS..................................................10
9. PENDING TAX PROCEEDINGS.....................................10
10. "AS-IS".....................................................10
11. BROKER......................................................11
12. DESTRUCTION OR CONDEMNATION.................................11
13. STATUS OF TITLE.............................................12
14. CLOSING.....................................................12
15. NOTICES.....................................................12
16. FRANCHISE TAXES.............................................13
17. TITLE REPORT................................................13
18. NON-PERMITTED TITLE OBJECTIONS..............................13
19. RETURN OF DEPOSIT...........................................15
20. AFFIDAVIT REGARDING JUDGMENTS...............................15
21. ASSIGNMENT OF THIS CONTRACT.................................15
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22. DEED TRANSFER TAXES........................................16
23. PURCHASER'S DEFAULT........................................16
24. ESCROW OF DEPOSIT..........................................17
25. REPRESENTATIONS............................................18
26. CLOSING DOCUMENTS..........................................21
27. FURTHER ASSURANCES.........................................23
28. PURCHASER'S DUE DILIGENCE PERIOD...........................24
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS...............25
30. MISCELLANEOUS..............................................26
EXHIBITS AND SCHEDULES:
Schedule A: Description of Property
Schedule B: Permitted Exceptions
Schedule C: Rent Roll
Schedule D: Escrowee's Wire Transfer Instructions
Schedule E: Existing Mortgage
Schedule F: List of Tax Protests
Exhibit 1: Form of Assignment and Assumption of Space Leases
Exhibit 2: Form of Tenant Estoppel Certificate
Exhibit 3: Form of Assignment and Assumption of Service Contracts
Exhibit 4: Form of Letter of Credit
Exhibit 5: Form of Title Certification
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CONTRACT (this "Contract") made this 7th day of July, 1997 by
and between DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation having
an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Seller") and RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a Delaware limited
partnership having an address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇)
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
W I T N E S S E T H :
WHEREAS, upon the terms and conditions hereinafter set forth,
Seller agrees to sell and convey fee title to that certain parcel of land
described on Schedule A, annexed hereto and made a part hereof, with the
buildings and improvements erected thereon (which parcel of land and the
improvements erected thereon are herein referred to as the "Property") to
Purchaser and Purchaser agrees to purchase the Property.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. The terms defined in this Section 1 shall
for all purposes of this Contract have the meaning herein specified unless the
context requires otherwise.
(a) "Additional Deposit" shall have the meaning
ascribed to it in Section 3(a).
(b) "Affiliates" shall have the meaning ascribed it
in Section 25(a)(xii).
(c) "Anchor Space Tenant" shall have the meaning
ascribed to it in Section 12(b).
(d) "Arrears" shall have the meaning ascribed to it
in Section 7(a)(i)(A).
(e) "Cash Deposit" shall have the meaning ascribed to
it in Section 3(a)(i).
(f) "Closing" shall have the meaning ascribed to it
in Section 14(a).
(g) "Closing Date" shall have the meaning ascribed to
it in Section 14(a).
(h) "Code" shall have the meaning ascribed to it in
Section 25(a)(vii).
(i) "Deed" shall have the meaning ascribed to it in
Section 22(a).
(j) "Deposit" shall have the meaning ascribed to it
in Section 3(a).
(k) "ERISA" shall have the meaning ascribed to it in
Section 29(c).
(l) "Escrowee" shall have the meaning ascribed to it
in Section 3(a).
(m) "Estoppel Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
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(n) "Estoppel Default" shall have the meaning
ascribed to it in Section 26(a)(vii)(B).
(o) "Existing Mortgage" shall have the meaning
ascribed to it in Section 4(b).
(p) "Evaluation Material" shall have the meaning
ascribed to it in Section 28(d).
(q) "Initial Deposit" shall have the meaning ascribed
to it in Section 3(a).
(r) "Letter of Credit" shall have the meaning
ascribed to it in Section 3(a)(i).
(s) "Loan Documents" shall have the meaning ascribed
to it in Section 4(a).
(t) "Maximum Representation Expense" shall have the
meaning ascribed to it in Section 25(e).
(u) "Maximum Title Expense" shall have the meaning
ascribed to it in Section 18(c).
(v) "Mortgage Expenses" shall have the meaning
ascribed to it in Section 4(d).
(w) "New Space Lease" shall have the meaning ascribed
to it in Section 6(a).
(x) "Non-Permitted Title Objections" shall have the
meaning ascribed to it in Section 18(a).
(y) "Overage Rent" shall have the meaning provided in
Section 7(a)(i)(B).
(z) "Permitted Exceptions" shall have the meaning
ascribed to it in Section 13.
(aa) "Premises" shall have the meaning ascribed it in
Section 2(b).
(ab) "Property" shall have the meaning ascribed to it
in the "WHEREAS" paragraph in this Contract.
(ac) "Purchase Price" shall have the meaning ascribed
to it in Section 3.
(ad) "Purchaser's Due Diligence Period" shall have the
meaning ascribed to it in Section 28(a).
(ae) "Related Parties" shall have the meaning ascribed
to it in Section 28(e).
(af) "Seller's Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
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(ag) "Service Contracts" shall have the meaning
ascribed to it in Section 25(a)(iv).
(ah) "Space Leases" shall have the meaning ascribed to
it in Section 5.
(ai) "Space Tenants" shall have the meaning ascribed
to it in Section 5.
(aj) "Substantial Loss" shall have the meaning
ascribed to it in Section 12(b).
(ak) "Title Company" shall have the meaning ascribed
to it in Section 17.
(al) "Transfer Tax" shall have the meaning ascribed to
it in Section 22(b).
(am) "Violation(s) " shall have the meaning ascribed
to it in Section 8.
2. SUBJECT OF SALE.
(a) Seller agrees to sell and convey to Purchaser the
Premises and Purchaser agrees to purchase from Seller the Premises subject to
the terms and conditions contained in this Contract.
(b) This sale includes any right, title and interest
of Seller in and to: (i) the Property (and any other property adjacent
thereto owned by Seller); (ii) any land lying in the bed of any street, road or
avenue opened or proposed, in front of or adjoining the Property, to the center
line thereof, and all right, title and interest of Seller in and to any award
made or to be made in lieu thereof and in and to any unpaid award for damage to
the Property by reason of change of grade of any street; and Seller will execute
and deliver to the Purchaser at the Closing, or thereafter, on demand, all
proper instruments for the conveyance of such title and the assignment and
collection of any such award; (iii) trade names, easements, permits, licenses
and utility agreements, and other appurtenances appurtenant to the Property, if
any; (iv) fixtures, equipment and other personal property attached to and
appurtenant to the Property and not owned by the Space Tenants, if any, but no
part of the Purchase Price shall be deemed to be paid for such fixtures,
equipment or personal property; (v) the Space Leases and the security deposits
listed on Schedule C annexed hereto; (vi) all plans and specifications for
improvements to the Property in the possession of Seller and any contracts,
warranties and guarantees, if any, with regard to the foregoing; and (vii) any
mineral rights, waters, water courses and hereditaments belonging to the
Property and owned by Seller ((i) through (vii) being referred to collectively
as the "Premises").
3. PURCHASE PRICE.
The purchase price for the Premises is the sum of Seven
Million Eighty-Seven Thousand and 00/100 Dollars ($7,087,000.00), (the
"Purchase Price") which shall be paid by Purchaser to Seller as follows:
(a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and
67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this
Contract payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
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("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii)
Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars
($266,666.67) (the "Additional Deposit") payable to Escrowee on or before
September 5, 1997, time being of the essence. The Initial Deposit and the
Additional Deposit, to the extent actually paid and received, together with any
interest earned thereon is referred to collectively herein as the "Deposit."
The Deposit shall include the Cash Deposit or any Letter of Credit or the
proceeds therefrom. The Initial Deposit and the Additional Deposit may be
paid, at Purchaser's option, by (A) electronic wire transfer in accordance with
the instructions set forth on Schedule D attached hereto of immediately
available federal funds, or by good certified check of Purchaser or bank
teller's check to the order of Escrowee (individually or collectively (the
"Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit,
in the amount of the Initial Deposit and/or the Additional Deposit issued to
Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4
(individually or collectively, the "Letter of Credit"); and
(b) On the Closing Date, Six Million Seven Hundred
Fifty-Three Thousand Six Hundred Sixty-Six and 66/100 Dollars ($6,753,666.66)
plus the amount of any Letter of Credit constituting a portion of the Deposit,
subject to the apportionments set forth in Section 7, by electronic wire
transfer of immediately available federal funds pursuant to wiring instructions
to be given by Seller to Purchaser prior to the Closing.
4. "SUBJECT TO" PROVISIONS; MORTGAGE.
(a) The Premises are sold subject to the exceptions
set forth on Schedule B attached hereto.
(b) "Existing Mortgage" refers collectively to the
mortgage loans described on Schedule E attached hereto. Seller has delivered
to Purchaser, and Purchaser acknowledges receipt of, copies of the documents
listed on Schedule E evidencing and securing the Existing Mortgage (the "Loan
Documents").
(c) If on the date then scheduled for the Closing,
Seller is unable to pay off the Existing Mortgage by reason of the applicable
prepayment requirements, Seller may adjourn the Closing for such time as may be
necessary to satisfy such requirements.
(d) Purchaser shall, at the Closing, pay all fees and
expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection
with or arising out of the payoff of the Existing Mortgage (including any
prepayment charges).
5. SPACE LEASES. With respect to tenancies and occupancies
set forth on Schedule C attached hereto and made a part hereof, Purchaser
represents that it has examined, or will examine prior to the expiration of
Purchaser's Due Diligence Period, all leases and amendments thereto relating to
such tenancies and occupancies (which leases and any New Space Leases are
collectively referred to herein as the "Space Leases" and the lessees
thereunder are herein called "Space Tenants").
6. LEASING PRACTICE.
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(a) Subject to Section 6(b) below, Seller may
continue to lease the Premises in a manner consistent with its past course of
business and in a commercially reasonable manner, including, without limitation
and in its sole discretion, the termination of existing Space Leases and/or the
entering into of new leases or renewals or modifications of existing Spaces
Leases (such new space lease, termination, renewal or modification is herein
referred to as a "New Space Lease") .
(b) (i) Prior to the expiration of Purchaser's Due
Diligence Period, Seller shall be permitted to enter into any New Space Lease
without the approval of Purchaser, provided Seller promptly notifies Purchaser
of the same. (ii) After the expiration of Purchaser's Due Diligence Period
provided Purchaser is not in default under this Contract, Seller shall not (A)
enter into a New Space Lease covering more than 7,500 square feet of rentable
space without obtaining the prior written consent of Purchaser, which consent
shall not be unreasonably withheld or delayed or (B) terminate any Space Lease
without the prior written consent of Purchaser except in the event of a default
by a Space Tenant under a Space Lease. Any New Space Lease which does not
require Purchaser's consent shall be arms-length and on then fair market terms
and conditions (and shall otherwise be consistent with Seller's customary
leasing standards). (iii) Seller and Purchaser shall apportion, at Closing,
any tenant improvement expenses or allowances and leasing commissions on
account of a New Space Lease based on their respective periods of ownership of
the Premises during the term of such New Space Lease.
(c) If Purchaser's consent is required under this
Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or
deny its consent in writing (and provide, in reasonable detail, the reasons for
any denial) within four (4) business days after request therefor. Purchaser's
failure to duly respond to Seller's request within four (4) business days after
request therefor shall be deemed a consent to the proposed New Space Lease. If
Purchaser's consent is not required, Seller's sole obligation shall be to
notify Purchaser prior to entering into any New Space Lease or terminating any
Space Lease.
(d) (i) Purchaser acknowledges and agrees that no
representation has been made and no responsibility has been assumed by Seller
with respect to the continued occupancy of the Premises, or any part thereof,
by the Space Tenants. Seller does not undertake or guarantee that the Space
Tenants will be in occupancy at the Closing. Prior to the Closing, Seller
shall have the right, but not the obligation, to enforce its rights against the
Space Tenants by summary proceeding or in any other manner. (ii)
Notwithstanding the provisions of subsection (d)(i) above, but subject to the
provisions of subsection (d)(iii) below, Purchaser shall have the right to
cancel this Contract in the event that, on the Closing Date, an Anchor Space
Tenant shall have filed a petition in bankruptcy and (A) an order has been
executed by the Bankruptcy Court granting such Anchor Space Tenant's
application to reject its Space Lease in bankruptcy or (B) fails to assume its
Space Lease in bankruptcy. (iii) In the event that, following the date of this
Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller,
at Seller's election, shall have the privilege to (C) reinstate such Anchor
Space Tenant's Space Lease by entering into a New Space Lease with such Anchor
Space Tenant on substantially similar terms and conditions as in such prior
Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that
such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E)
procure a substitute tenant for the space covered by the Space Lease in
question pursuant to a New Space Lease reasonably acceptable to Purchaser, and
for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be
entitled to one or more adjournments of the Closing for
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a period not to exceed one (1) year in the aggregate; provided, however, that
Purchaser shall have no obligation to close title if, during such period of
adjournment, an event occurs which materially and adversely affects the
Premises and such event is not corrected or cured to the reasonable
satisfaction of Purchaser.
7. APPORTIONMENTS AND REIMBURSEMENTS.
(a) Unless otherwise provided, at the Closing the
following are to be reimbursed or apportioned as of 11:59 P.M. on the
day preceding the Closing Date based upon the respective party's period of
ownership for the item being apportioned. Notwithstanding the foregoing, in the
event Seller (or its designee) does not receive the funds to be wired pursuant
to Section 3(b) in time for Seller (or its designee) to invest same (or to
timely pay off the Existing Mortgage) on the Closing Date, then in such event,
the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on
the Closing Date based upon the respective party's period of ownership for the
item being apportioned (The reimbursements and apportionments shall be made
based upon the actual number of days in the month in which the Closing Date
occurs.):
(i) Rent and additional rent under any Space Leases
for the month of Closing, as and when collected.
(A) If on the Closing Date there are any past due
rentals which have been billed to or are due by Space Tenants and not collected
(collectively "Arrears") Purchaser and Seller agree that the first moneys
received after the Closing by Purchaser or Seller from such Space Tenants shall
be applied (i) first to Seller and Purchaser for the month in which the Closing
occurred, prorated in accordance with this Section 7, (ii) then to Purchaser
toward any then current amounts owed by a Space Tenant to Purchaser and (iii)
then to Seller toward the Arrears owed by such Space Tenant. Purchaser and
Seller agree to remit promptly to the other the Arrears collected from time to
time to which the other is so entitled as hereinbefore provided. Purchaser
shall ▇▇▇▇ Space Tenants in Purchaser's customary manner and use reasonable
efforts in pursuing the collection of all Arrears for one (1) year following
the date of Closing. Purchaser shall have the right to deduct the greater of
the allocable share of Purchaser's reasonable out-of-pocket costs incurred in
collecting such Arrears or one (1%) percent of the Arrears collected on
Seller's behalf from amounts otherwise due Seller. The provisions of this
Section 7(a)(i)(A) shall survive the Closing.
(B) As to any Space Lease(s) that provide for
the payment of additional rent based upon a percentage of the Space Tenant's
business during a specified annual or other period, or based upon reimbursement
for or payment of real estate taxes, operating expenses or insurance expenses
or otherwise (such additional rent being collectively called "Overage Rent"),
if the Closing shall occur prior to the time when any such Overage Rent is
payable, then such Overage Rent for the applicable accounting period in which
the Closing occurs shall be apportioned subsequent to the Closing. Purchaser
agrees that it will receive and hold such Overage Rent in trust and pay over to
the Seller the proportion of such Overage Rent as the portion of such
accounting period during which Seller was in title to the Premises bears to the
entire such accounting period. As to any Overage Rent in respect to an
accounting period that shall have expired prior to the Closing but which shall
become payable after the Closing, the Purchaser agrees that it will receive and
hold such Overage Rent in trust
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and pay the entire amount over to the Seller upon receipt thereof. Purchaser
shall have the right to deduct the greater of the allocable share of
Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage
Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from
amounts otherwise due Seller. Seller shall furnish to Purchaser all
information (including the form of the ▇▇▇▇ to be rendered) necessary for the
billing of such Overage Rent. Purchaser agrees that it shall render bills
(calculated by Seller if applicable to a period during Seller's ownership) for
Overage Rent following the Closing and shall, upon receipt thereof, promptly
pay to the Seller the amount to which the Seller is entitled as above provided.
If requested by either party, both parties will join in a letter to the
respective Space Tenants under such leases directing the division of Overage
Rents in accordance with the foregoing provisions hereof. To the extent that a
Space Tenant has the express right under its Space Lease to offset Overage Rent
against other amounts due under its Space Lease, same will be taken into
account in determining Overage Rent apportionments. Promptly after the
calendar year in which the Closing occurs, Seller and Purchaser shall reconcile
all Overage Rent due for such calendar year based upon actual expenses incurred
during such year, and such reconciled Overage Rent shall be reapportioned
between Seller and Purchaser (taking into account any Overage Rent retained by
Seller at Closing and collected by Purchaser after the Closing). The
provisions of this Section 7(a)(i)(B) shall survive the Closing.
(ii) Water rates and water meter charges, if any, not
payable by the Space Tenants on the basis of the fiscal period for which
assessed. If there be a water meter, or meters, on the Premises (other than
meters under which charges are payable by the Space Tenant under the Space
Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed
sewer rent thereon for the time intervening from the date of the last reading
shall be apportioned on the basis of such last reading, and shall be
appropriately readjusted after the Closing on the basis of the next subsequent
bills. As to any water charges payable by the Space Tenant as aforementioned,
if the Space Tenant shall have failed to pay such water charges, such unpaid
charges and the liens, if any, resulting therefrom shall not be objections to
title, or be the basis of any claim whatsoever by Purchaser against Seller and
Purchaser shall close title in accordance with the terms of this Contract
subject to such unpaid charges and rents and such liens without abatement or
credit against the Purchase Price. The provisions of this Section 7(a)(ii)
shall survive the Closing.
(iii) Real estate, school and sewer taxes then due and
payable by Seller. As to any real estate, school and sewer taxes payable by
the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such
Space Tenant shall have failed to pay such taxes, such unpaid taxes and the
liens, if any, resulting therefrom shall not be objections to title, or be the
basis of any claim whatsoever by Purchaser against Seller and Purchaser shall
close title in accordance with the terms of this Contract subject to such
unpaid charges and rents and such liens without abatement or credit against the
Purchase Price. The provisions of this Section 7(a)(iii) shall survive the
Closing.
(iv) Charges under Service Contracts not terminated on
or prior to Closing and other expenses in connection with the operation of the
Premises.
(v) Leasing expenses pursuant to Section 6(b), if
any.
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(b) At the Closing, Seller shall deliver to Purchaser the
Space Tenants' security deposits set forth in Schedule C annexed hereto, or
credit the Purchase Price on account of said security deposits; provided,
however, that if any Space Tenant is in default under the terms of its Space
Lease and has vacated its premises, Seller may retain so much of such Space
Tenant's security deposit as shall be sufficient to cover Seller's loss by
reason of the default. It is further agreed that nothing herein contained
shall be deemed to prevent Seller from applying security deposits prior to
Closing in order to liquidate any claim under any Space Lease or to compromise,
adjust or settle with any Space Tenant for the disposition of any claim by the
application of such security deposits provided such Space Tenant has vacated
its premises.
8. VIOLATIONS. (a) Subject to the provisions of subsection
(b) below, Purchaser shall accept the Premises subject to any notes or notices
or violations of law or municipal ordinances, orders or requirements imposed or
issued by any governmental or quasi- governmental authority having or asserting
jurisdiction, against or affecting the Premises (individually a "Violation" and
collectively "Violations") and any conditions which may result in Violations.
Purchaser shall be responsible for all Violations from and after the Closing
Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any
Violations are imposed which require a cost in excess of $100,000, in the
aggregate, to cure as determined by a reputable contractor or engineer selected
by Seller (and reasonably acceptable to Purchaser) Seller shall, at its
election (i) cure such Violations and, for such purpose, be entitled to adjourn
the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser
a credit against the Purchase Price equal to the sum required to cure such
Violations less $100,000 or (iii) if Seller reasonably disputes the validity of
such Violations, indemnify Purchaser from and against any and all claims, loss,
liability or damage, which exceed $100,000, that may arise as a result of such
Violations, Seller's liability being limited under such indemnity to $100,000
in the aggregate. (c) The provisions of this Section 8 shall survive the
Closing.
9. PENDING TAX PROCEEDINGS. Seller represents that there are
no proceedings to review real estate tax assessment of the Premises other than
as set forth in Schedule F. Seller shall have sole authority to prosecute,
settle and withdraw proceedings to review any real estate tax assessment for
the Premises for period relating to tax years prior to, and including, the year
in which the Closing occurs. Purchaser and Seller agree that if there should
be a refund of any real estate taxes paid by Seller in respect of the fiscal
year in which the Closing occurs, such refund, less reasonable attorneys' fees
and disbursements, shall be apportioned between Seller and Purchaser as of the
Closing Date and shall be paid promptly upon receipt thereof. Seller and
Purchaser shall pay their respective share of any amounts reimbursable to Space
Tenants in respect to such refund. Purchaser acknowledges that it has no
interest in any proceedings or refunds applicable to any fiscal tax year prior
to the year in which the Closing occurs. The provisions of this Section 9
shall survive the Closing.
10. "AS-IS". Purchaser represents to Seller that (i)
Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence
Period, independently examined, inspected, and investigated to the full
satisfaction of Purchaser, the physical nature and condition of the Premises
and the income, operating expenses and carrying charges affecting the Premises,
(ii) except as expressly set forth in this Contract, neither Seller nor any
agent, officer, employee, or representative of Seller has made any
representation whatsoever regarding the subject matter of this Contract or any
part thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition
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of the Premises, the existence or non-existence of asbestos, hazardous
substances or wastes, underground storage tanks or any other environmental
hazards on or about the Premises, or the Space Leases, or operating expenses or
carrying charges affecting the Premises, and (iii) Purchaser, in executing,
delivering and performing this Contract, does not rely upon any statement,
offering material, operating statement, historical budget, engineering
structural report, any environmental reports, information, or representation to
whomsoever made or given, whether to Purchaser or others, and whether directly
or indirectly, verbally or in writing, made by any person, firm or corporation
except as expressly set forth herein, and Purchaser acknowledges that any such
statement, information, offering material, operating statement, historical
budget, report or representation, if any, does not represent or guarantee
future performance of the Premises. Without limiting the foregoing, but in
addition thereto, except as otherwise expressly set forth in this Contract,
Seller shall deliver, and Purchaser shall take, the Premises in their "as is"
condition on the Closing Date subject to Section 12.
11. BROKER. Seller and Purchaser represent to each other that
neither party has dealt with any broker or real estate consultant in connection
with the transactions contemplated by this Contract. Seller and Purchaser
shall indemnify and hold the other free and harmless from and against any
damages, costs or expenses (including, but not limited to, reasonable
attorneys' fees and disbursements) suffered by the indemnified party arising
from a misrepresentation or a breach of any covenant made by the indemnifying
party pursuant to this Section 11. The provisions of this Section 11 shall
survive the Closing.
12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the
date set for Closing there is a casualty or condemnation affecting the Property
which constitutes a Substantial Loss, Purchaser shall have the option of
cancelling this Contract within fifteen (15) days after notice of such casualty
or condemnation, in which event, the Deposit shall be returned to the Purchaser
and this Contract deemed cancelled and of no force and effect and neither party
shall have any further rights or liabilities against or to the other. In the
event of a Substantial Loss, and Purchaser does not elect to cancel this
Contract, or in the event that the casualty or condemnation does not constitute
a Substantial Loss, then the Purchaser and Seller shall consummate the
transaction contemplated by this Contract without any reduction or abatement in
the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser
all of its rights in and to any insurance proceeds (and shall pay to Purchaser,
or allow on account the Purchase Price, a sum equal to the amount of the
deductible, if any, on Seller's casualty insurance policy for the Premises) or
condemnation awards, as the case may be, in connection with such casualty or
condemnation.
(b) As used herein, "Substantial Loss" with respect
to the Property shall mean a casualty or condemnation that either (i) shall
entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto
(each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to
terminate its Space Lease on or after the Closing Date and Seller has failed to
obtain a waiver of such termination right or (ii) requires repairs or
restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00)
Dollars. In the event Purchaser elects to cancel this Contract in accordance
with subparagraph (a) above, Seller may rescind such cancellation by (iii)
delivering, within one (1) year after the receipt of Purchaser's notice of
cancellation, a waiver by each Anchor Space Tenant which was entitled to
terminate its Space Lease by reason of the casualty or condemnation of its
right or option to so terminate and (iv) within one (1) year after receipt of
Purchaser's notice of
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cancellation, restorating and repairing the Property (A) if in connection with
a casualty, substantially to its condition immediately prior to the casualty or
(B) if in connection with a condemnation, as may be reasonably necessary as a
result of the taking of property; provided, however, that Purchaser shall have
no obligation to close title if, during such period of adjournment, an event
occurs which materially and adversely affects the Premises and such event is
not corrected or cured to the reasonable satisfaction of Purchaser.
(c) The estimated cost of repairs or restoration in
connection with a casualty or condemnation shall be determined by a reputable
contractor or engineer selected by Seller and approved by Purchaser (which
approval shall not be unreasonably withheld or delayed). The Closing shall be
postponed for such periods as may be necessary to allow Seller to comply with
the provisions of this Section 12.
(d) The provisions of this Section 12 supersede the
provisions of any applicable statutory or decisional law with respect to the
subject matter contained in this Section 12.
13. STATUS OF TITLE. Seller shall deliver and Purchaser shall
accept title to the Premises and consummate the transaction contemplated by
this Contract subject to (a) the title exceptions set forth in Schedule B, (b)
title exceptions created or suffered by the Space Tenants or Purchaser and (c)
such other title exceptions which Seller may, in accordance with the provisions
of this Contract, cause the Title Company to omit or affirmatively insure will
not be collected out of the Premises provided that Purchaser has reasonably
approved the affirmative insurance (the title exceptions, whether liens,
encumbrances, defects, encroachments or other objections, described in (a),
(b), and (c) being sometimes referred to collectively as "Permitted
Exceptions"). Seller shall not enter into any agreements, indemnities or other
understandings with the Title Company which will enable the Title Company to
omit any matter of record without the knowledge of Purchaser.
14. CLOSING.
(a) The closing of title (the "Closing") shall take
place on September 30, 1997 (the actual date of Closing being herein referred
to as the "Closing Date") at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:00 o'clock in the forenoon on
that day, time being of the essence (except that Seller may adjourn the Closing
in accordance with other express provisions of this Contract) at which time the
Deed to the Property shall be delivered upon payment to Seller of the Purchase
Price. Notwithstanding anything contained herein or at law or in equity,
Purchaser expressly agrees that it shall have no right or privilege to adjourn
the Closing except as expressly permitted by this Contract and Purchaser's
inability or refusal to close title on the date scheduled for Closing shall be
a default under this Contract.
(b) The parties agree to finalize documents necessary
for the Closing and to cause their representatives to attend a customary
"pre-closing" at least one (1) business day prior to the date scheduled for
Closing.
15. NOTICES. All notices hereunder shall be sent by certified
or registered mail, return receipt requested, or may be sent by Federal Express
or other overnight courier which obtains a
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signature upon delivery, or may be delivered by hand delivery addressed to
Seller at the address set forth above or at such other address as Seller shall
designate from time to time by notice to Purchaser with copies of all such
notices to be likewise sent to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
and to Purchaser at the address given for Purchaser at the beginning of this
Contract or at such other address as Purchaser shall from time to time
designate by notice to Seller with copies of all such notices to Purchaser to
be likewise sent to:
Honigman, Miller, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Notices shall be deemed served three (3) business days after mailing, and in
the case of overnight courier or hand delivery, on the date actually delivered
to the intended recipient, except for notice(s) which advise the other party of
a change of address of the party sending such notice or of such party's
attorney, which notice shall not be deemed served until actually received by
the party to whom such notice is addressed or delivery is refused by such
party. Notices on behalf of the respective parties may be given by their
attorneys and such notices shall have the same effect as if in fact subscribed
by the party on whose behalf it is given. Notwithstanding the foregoing
provisions of this Section 15, notices served by hand delivery shall be deemed
served on the date of delivery if delivered at or prior to 5:00 P.M., and on
the next business day if delivered after 5:00 P.M.
16. FRANCHISE TAXES. Unpaid franchise or corporation taxes,
dissolution taxes or any other similar taxes so levied, of any corporation in
the chain of title shall be no objection to title so long as the Title Company
insures against collection of any such taxes out of or enforcement against the
Premises without special or additional premium or if such special or additional
premium is required, if Seller shall pay such special or additional premium.
17. TITLE REPORT. Purchaser shall promptly order a title
report from Commonwealth Land Title Insurance Company (the "Title Company") and
a survey or survey update, all at Purchaser's sole cost and expense. Purchaser
shall from time to time, promptly after obtaining knowledge thereof, notify
Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums
charged in connection with procuring a policy of title insurance.
18. NON-PERMITTED TITLE OBJECTIONS.
(a) If on the Closing it should appear that the
Premises are affected by any lien, encumbrance, defect, encroachment or
objection which is not a Permitted Exception (collectively, "Non-Permitted
Title Objections"), then in such event, Seller, at Seller's election, shall
have the
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privilege to remove or satisfy the same, and shall, for that purpose, be
entitled to one or more adjournments of the Closing for a period not exceeding
in the aggregate sixty (60) days.
(b) If Seller elects to adjourn the Closing pursuant
to this Section 18, this Contract shall remain in effect for the period or
periods of adjournment, in accordance with its terms.
(c) Except as provided below, Seller shall not be
required to bring any action or proceeding or to otherwise incur any expense to
remove or discharge any Non-Permitted Title Objection; provided, however, that
if there exists Non-Permitted Title Objection(s) which can be removed or
discharged by payment of a sum of money only, and if both (1) such removal or
discharge can reasonably be expected to be accomplished within a period of
sixty (60) days and (2) the sum of money required to accomplish all such
removals or discharges with respect to the Premises shall not exceed in the
aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the
"Maximum Title Expense"), then, and in such event, Seller agrees to either (i)
adjourn the Closing for the period required to remove or discharge such
Non-Permitted Title Objections, and to expend an amount not to exceed the
Maximum Title Expense to remove or discharge such Non-Permitted Title
Objections, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum
Title Expense, from any damage, cost, expense or claim which Purchaser may
incur as a result of such Non-Permitted Title Objection (in which case
Purchaser shall accept title subject to such Non-Permitted Title Objection).
Notwithstanding the foregoing provisions, Purchaser may, at any time, accept
such title as Seller can convey notwithstanding the existence of any
Non-Permitted Title Objections without reduction of the Purchase Price or any
credit or allowance on account thereof or any claim against Seller, provided,
however, if there shall be any Non-Permitted Title Objections that can be
removed or discharged by the payment of a sum of money only which exceeds the
Maximum Title Expense, or that can be removed by the payment of less than the
Maximum Title Expense but not within the available time, and Seller elects not
to or cannot remove or discharge such Non-Permitted Title Objections within the
available time, then if Purchaser elects to accept such title as Seller can
convey the Purchase Price shall be reduced, by the lesser of the Maximum Title
Expense or the amount required to remove or discharge said Non-Permitted Title
Objection. The acceptance of the Deed by Purchaser shall be deemed to be a
full performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to this Contract, except those, if any, that
are herein specifically stated or made to survive the Closing (but, except as
expressly set forth in this Contract, nothing herein shall be deemed to
obligate Purchaser to accept title subject to any Non-Permitted Title
Objection). Anything in this Section 18(c) to the contrary notwithstanding, an
attempt by Seller to remove or discharge any Non-Permitted Title Objection
shall not be deemed to be or create an obligation of Seller to remove or
discharge the same.
(d) The foregoing provisions of this Section 18 to
the contrary notwithstanding, Seller agrees to remove or discharge any monetary
lien voluntarily created or suffered by Seller and any Non-Permitted Title
Objections voluntarily created or suffered by Seller after the date hereof;
provided, however, that Seller shall not be deemed to have voluntarily created
or suffered (nor shall Seller be liable for) any Non-Permitted Title Objections
if caused or created by an act or omission of Purchaser or by an act or
omission of any Space Tenant. Seller shall remove or discharge any
Non-Permitted Title Objection in the manner set forth in subparagraph (c)
above, but, for purposes of this subparagraph (d), without regard to the
Maximum Title Expense.
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19. RETURN OF DEPOSIT; SELLER'S DEFAULT
If, for any reason whatsoever, Seller shall be unable to
convey title subject to and in accordance with the terms of this Contract, the
sole obligation of Seller shall be to cause the refund of the Deposit, and upon
the making of such refund this Contract shall be null and void and of no
further force or effect, no party hereto shall have any further claim against
the other by reason of this Contract; provided, however, that if Seller's
inability to convey shall result from (i) Seller's willful default or (ii)
Seller's default under Section 18 above, then Purchaser shall, in either case
under clause (i) or (ii) of this proviso, be entitled to the remedy of either
(A) specific performance or (B) cancelling this Contract and receiving (1) the
return of the Deposit and (2) reimbursement of Purchaser's actual out-of-
pocket expenses incurred in procuring environmental and engineering reports not
to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the
Deposit and such reimbursement no party hereto shall have any further claim
against the other by reason of this Contract.
20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller but who are not Seller or its
affiliates or subsidiaries, Seller will deliver to Purchaser and the Title
Company an affidavit(s) showing that such judgments, bankruptcies or other
returns are not against Seller or, at Seller's option, deliver an indemnity
agreement to the Title Company, in such form and content that the Title Company
will remove such judgments, bankruptcies or other returns as exceptions to
title or will insure against collection of such judgments out of the Premises.
21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be
assigned by Purchaser without the prior written consent of Seller. The
foregoing notwithstanding, Purchaser shall have the right to assign this
Contract to an entity whose decisions are made by Purchaser (or by an entity
wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent
of the economic interests in such entity and provided further that such entity
assumes all obligations of Purchaser under this Contract. A transfer, sale or
assignment of the majority stock or membership interest in a corporate or
limited liability company purchaser or in a corporate or limited liability
general partner of a partnership purchaser, or of a general partnership
interest in a partnership purchaser, shall constitute an assignment of this
Contract, which assignment or attempted assignment shall be void if made
without the written consent of Seller. No assignment of this Contract, whether
or not permitted, shall be deemed to relieve or release Purchaser from any of
its obligations (whether to be performed prior to or after Closing) set forth
herein. Seller shall not have the right to assign its interests under this
Contract except to entities affiliated with or related to Seller.
22. DEED; TRANSFER TAXES.
(a) The deed to the Premises shall be the usual
special warranty deed (the "Deed") all in proper statutory form for recording
and shall be duly executed and acknowledged so as to convey to Purchaser the
fee simple of the portion of the Premises covered thereby, free of all liens
and encumbrances, except as herein stated.
(b) At the Closing, Seller shall pay the cost of any
amount of documentary stamps, transfer tax or similar conveyance tax imposed in
connection with the delivery of the Deed
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(collectively, the "Transfer Tax") and Purchaser and Seller shall execute and
deliver any returns and/or affidavits in connection with the recording of the
Deed or the payment of the Transfer Tax.
(c) (i) Anything in subdivision (b) to the contrary
notwithstanding, Seller may, at its option, elect by notice given not later
than three (3) business days prior to the Closing that Purchaser pay all
required Transfer Tax, in which event at the Closing, Purchaser shall receive a
credit against Purchase Price in the amount paid by Purchaser.
(ii) Purchaser hereby indemnifies and holds Seller
harmless from and against any interest or penalty charges imposed by reason of
the untimely delivery to the appropriate recording officer of any of the checks
required under Subdivision (c)(i).
(d) The provisions of this Section 22 shall survive
the Closing.
23. PURCHASER'S DEFAULT. In the event Purchaser should
default under this Contract (including, but not limited to, Purchaser's
failure to timely deliver the Additional Deposit), the parties agree that the
damages that Seller will sustain as a result thereof will be difficult, if not
impossible, to ascertain and, in such event Seller shall, as its sole and
exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain
it as and for its liquidated damages hereunder.
24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee
is instructed as follows:
(a) Upon the Closing, the Cash Deposit shall be paid over
to Seller and any Letter of Credit shall be delivered to Purchaser upon payment
by Purchaser to Seller of the Purchase Price.
(b) (i) Escrowee shall draw the full proceeds under
any Letter of Credit if (A) Escrowee shall receive a written statement signed
by Seller as follows: "Purchaser has defaulted in its obligations under that
certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will
expire by its terms within thirty (30) days. Escrowee shall promptly upon
receipt forward a copy of Seller's statement to Purchaser. Any such proceeds
paid to and received by Escrowee shall be treated and disposed of hereunder as
Cash Deposit.
(ii) In the event Purchaser should default under this
Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to
Seller who shall retain it as and for its liquidated damages hereunder.
(c) In the event Seller shall fail to close title by
reason of a default by Seller or in the event this Contract is terminated in
accordance with its terms through no fault of Purchaser, the Deposit shall be
paid over to Purchaser.
(d) Escrowee shall invest the proceeds of the Deposit in
such bank or money market accounts or United States Government Treasury Bills
as Seller shall direct. Any interest earned on Deposit when received shall
similarly be held in escrow by the Escrowee and if under the terms of this
Contract (i) the Deposit is to be paid over to Purchaser, then such interest
shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to
Seller, then such interest shall be paid over to Seller.
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If the Closing occurs, any interest earned on the Deposit shall be considered a
credit of Purchaser to be applied against the Purchase Price.
(e) Escrowee, by signing this Contract at the end hereof
where indicated, signifies its agreement to hold the Deposit for the purposes
as provided in this Contract. In the event of any dispute, Escrowee shall have
the right to deposit the Deposit in court to await the resolution of such
dispute. In any event, Escrowee shall not be personally liable so long as it
acts in good faith.
(f) Escrowee shall not incur any liability by reason of
any action or non-action taken by Escrowee in good faith or pursuant to the
judgment or order of a court of competent jurisdiction. Escrowee shall have
the right to rely upon the genuineness of all certificates, notices and
instruments delivered to it pursuant hereto, and all the signatures thereto or
to any other writing received by Escrowee purporting to be signed by any party
hereto, and upon the truth of the contents thereof. Before making payment or
delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee
shall have the right to require delivery to it of an executed and acknowledged
receipt for the subject matter of the delivery to be made by it. In the event
of any dispute between the parties as to whether either party is in default
hereunder or as to any other material fact, Escrowee shall have the right to
refrain from taking any further action with respect to the subject matter of
the escrow until it is reasonably satisfied that such dispute is resolved or
action by Escrowee is required by an order or judgment of a court of competent
jurisdiction. Escrowee shall be entitled to consult with other counsel in
connection with its duties hereunder. Seller and Purchaser jointly and
severally, agree to indemnify Escrowee from any and all liability that may
arise hereunder and to reimburse Escrowee for its reasonable costs and
expenses, including reasonable attorneys' fees (either paid to retained
attorneys or representing the fair value of legal services rendered by Escrowee
to itself) incurred as a result of any dispute or litigation arising hereunder.
(g) Escrowee or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the disbursement of
the Deposit or any other dispute between the parties whether or not Escrowee is
in possession of the Deposit and continues to act as Escrowee.
25. REPRESENTATIONS.
(a) Seller, represents that, unless otherwise herein
stated, as of the date hereof:
(i) Schedule C represents a true, accurate and
complete list in all material respects of (A) all Space Tenants; (B) the
current base rent and (C) the security deposits presently held by Seller.
Other than the Space Tenants (and parties claiming rights under Space Leases,
including sublessees, licensees, assignees and concessionees) no party has any
right to possess or use the Premises except as may be contemplated by the
Permitted Exceptions.
(ii) Except as set forth on Schedule C hereof, the
Spaces Leases are in full force and effect. Seller has not received notice of
any unfulfilled obligations as to security deposits to prior tenants.
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(iii) Except as set forth on Schedule C, Seller has not
received rents from the Space Tenants (other than security deposits) in excess
of one (1) month in advance.
(iv) There are no written service contracts or
management agreements (the "Service Contracts") affecting the Premises or the
operation or use thereof which will be binding upon Purchaser after the Closing
except those which may be cancelled upon not more than thirty (30) days notice.
(v) There is no litigation pending (A) between Seller,
as landlord, under the Space Leases and any Space Tenant, except as may be
covered by insurance, or (B) affecting title to the Premises or this Contract.
(vi) Seller is, and at the Closing shall be a duly
organized and validly existing Alabama corporation and authorized to do
business in the state where the Property is located. The execution, delivery
and performance of this Contract in accordance with its terms, has been duly
authorized by all necessary action of Seller, does not violate the articles of
incorporation, by-laws, operating agreement, partnership agreement or
certificate of partnership of Seller, or any contract, agreement, commitment,
order, judgment or decree to which Seller is a party or by which it, or the
Premises, are bound, or result in the creation of any lien, charge or
encumbrance upon the Premises or any part thereof. This Contract has been duly
executed by Seller and constitutes legal, valid and binding obligations of
Seller. Seller will have the right, power and authority to make and perform
its obligations under this Contract without the need for governmental approval,
consent or filing and this Contract shall be a valid and binding obligation of
Seller enforceable against Seller in accordance with its terms.
(vii) Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code").
(viii) Seller has not received written notice of any
condemnation proceedings, eminent domain proceedings, proceedings to change the
zoning or similar actions or proceedings which are pending against the Premises
or any part thereof.
(ix) There are no employees of Seller at the Proper-
ties for which Purchaser shall be responsible after the Closing.
(x) The principal balance as of June 30, 1997 of
the Existing Mortgage is set forth on Schedule E attached hereto.
(xi) The Loan Documents constitute all the documents
which are material in connection with the prepayment of Existing Mortgage.
Seller shall not modify the prepayment provisions of the Loan Documents during
the term of this Contract without the consent of Purchaser.
(xii) Neither Seller nor any of its affiliates as
described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has
incurred any liability which could subject Purchaser or any
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asset to be acquired by Purchaser pursuant to this Contract to any lien or
material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of
ERISA or Section 401(a)(29) or 412 of the Code.
(b) As used herein items in the "possession" of Seller or
"received" by Seller shall mean only writings actually delivered into the
possession of Seller (at the New York City office of DRA Advisors, Inc.) and
shall not include writings addressed to Seller but sent or delivered to the
Space Tenants or other third parties or to other locations.
(c) The representations contained in subsection (a) above
shall survive for a period of six (6) months following the Closing Date, and
any claim by Purchaser in connection therewith must be made within such six (6)
month period. Notwithstanding anything to the contrary, any representation
which results in a reduction of the Purchase Price pursuant to subparagraph (e)
below shall not survive the Closing.
(d) Subject to the succeeding provisions of this
subparagraph (d) and of subparagraph (e) below, if any representation of Seller
shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be
to terminate this Contract and receive the return of the Deposit, and upon the
receipt of same this Contract shall be null and void and of no further force or
effect and neither party shall have any rights or obligations against or to the
other. Seller shall, in any event, have the option (i) to rescind Purchaser's
termination of the Contract and adjourn the Closing for a period not to exceed
sixty (60) days in order to make such representation true, or (ii) unless
Purchaser waives all liability of Seller by reason of such untrue
representation, to terminate this Contract and promptly return the Deposit to
Purchaser, and upon the making of such return this Contract shall be null and
void and of no further force or effect and neither party hereto shall have any
rights or obligations against or to the other. If Purchaser waives such
liability, then in such event, the Closing shall take place without abatement
or reduction in the Purchase Price. If the Closing shall take place without
Purchaser making an objection (by notice delivered at the Closing) to an untrue
representation of which Purchaser shall have knowledge, Purchaser shall be
deemed to have waived all liability of Seller by reason of such untrue
representation. The untruth of any non-material representation of Seller shall
not affect the rights and obligations of the parties hereto.
(e) The provisions of subparagraph (d) hereof to the
contrary notwithstanding, if any representations shall fail to be true and such
representations can be made true by the payment of a sum of money only, and if
both (i) such representation(s) can reasonably be expected to be made true
within a period of sixty (60) days and (ii) the sum of money requited to make
such representation(s) true shall not exceed Two Hundred Fifty Thousand and
00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation
Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing
for the period required to make such representations true and to expend (or, at
Seller's election, to obligate itself to expend by indemnity agreement, bond or
any other manner) an amount not to exceed the Maximum Representation Expense,
or (ii) indemnify Purchaser, in an amount not to exceed the Maximum
Representation Expense, from any damage, cost, expense or claim that Purchaser
may incur as a result of such untrue representation. Notwithstanding the
provisions of the preceding sentence, Purchaser may at any time accept such
title as Seller can convey notwithstanding the existence of any such untrue
material representation(s) without reduction of the Purchase Price or any
credit or allowance on account thereof or any claim against Seller; provided,
however, if there shall be any untrue material
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representation(s) which can be made true by the payment of a sum of money only
which exceeds the Maximum Representation Expense or which can be made true by
the payment of less than the Maximum Representation Expense but not within the
available time and Seller elects not to, or cannot, make such material
representation(s) true within the available time, then if Purchaser elects to
accept such title as Seller can convey, the Purchase Price shall be reduced by
the lesser of the sum of money required to make such representations true, or
the Maximum Representation Expense. The acceptance of the Deeds by Purchaser
shall be deemed to be a full performance and discharge of every agreement and
obligation on the part of the Seller to be performed pursuant to the provisions
of this Contract, except those, if any, which are herein specifically stated or
made to survive the Closing and Seller shall have no further liability with
respect to such untrue material representation(s).
(f) Following the Closing, Seller agrees to maintain
at least $50,000.00 in its operating account until the end of the calendar year
in which the Closing occurs, it being understood that such amount shall not be
deemed to be the limit of Seller's liability, if any, after the Closing Date.
26. CLOSING DOCUMENTS. At the Closing (unless otherwise
expressly indicated):
(a) Seller shall deliver to Purchaser the following
items:
(i) the Deed in accordance with Section
22 hereof.
(ii) the Assignment of Space Leases exe-
cuted by Seller, which assignment shall be in the form of Exhibit 1 attached
hereto.
(iii) duplicate originals, or if duplicate
originals are not available, true and complete copies certified as true by
Seller, of all of the Space Leases.
(iv) to the extent in Seller's possession,
the real estate tax bills then payable for the then current real estate tax
year.
(v) a duly executed certificate of
Seller, in the applicable form set forth in Treasury Regulations Section
1.1445- 2(b)(2).
(vi) the checks, return and/or affidavit
in accordance with Section 22 hereof.
(vii) subject to the terms of Sections
26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the
Closing Date, estoppel certificates ("Estoppel Certificates"), in form and
substance which does not vary materially from the form annexed hereto as
Exhibit 2 executed by each of the Space Tenants; provided, however, with
respect to Anchor Space Tenants, Seller shall only be required to deliver such
Estoppel Certificates which are usual and customary for such Anchor Space
Tenants (except that, other than for the Estoppel Certificate to be delivered
by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all
other Anchor Space Tenants shall cover at least the matters set forth in
paragraphs 2 and 3 of Exhibit 2).
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(A) If the required Estoppel Certificates cannot
be timely delivered, or if the Estoppel Certificates which are timely delivered
do not cover the material applicable matters set forth in Exhibit 2 Seller may,
but shall not be obligated to, adjourn the Closing for a period not to exceed
sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its
certificate ("Seller's Certificate") with respect to not more than forty (40%)
percent of rentable square feet of space leased by non-Anchor Space Tenants as
of the date hereof, covering all of the matters set forth in Exhibit 2 if no
Estoppel Certificate is delivered by a Space Tenant or covering the matters not
covered by an Estoppel Certificate which is delivered by a Space Tenant.
Subsequent to the Closing, Seller may deliver to Purchaser Estoppel
Certificates or supplemental Estoppel Certificates covering those matters not
covered by the previously delivered Estoppel Certificates. Upon delivery of
such Estoppel Certificates, Seller shall be entirely released from any
liability arising out of Seller's Certificate delivered at the Closing as
Seller's Certificate relates to the particular Space Tenant and/or Space Lease
covered by the Estoppel Certificate, to the extent the information contained in
such Estoppel Certificates is consistent with the information contained in
Seller's Certificate. If Seller does not or cannot deliver an Estoppel
Certificate or Seller's Certificate, Purchaser's sole remedy shall be to
terminate this Contract and receive the return of the Deposit or to close title
notwithstanding the lack of the Estoppel Certificate or Seller's Certificate
without any reduction of the Purchase Price and without any liability of Seller
relative thereto.
(B) (1) In the event any Estoppel Certificate or
Seller's Certificate shall indicate a default by landlord under a Space Lease
(such default hereinafter being referred to as an "Estoppel Default"), then
Seller may, but shall not be obligated to, elect to cure any such Estoppel
Default and shall, for that purpose, be entitled to adjourn the Closing for a
period not to exceed sixty (60) days, provided, however, that in the event
Seller elects not to cure such Estoppel Default or is unable to cure such
Estoppel Default within such period of time, Purchaser's sole remedy shall be
as set forth in the last sentence of subparagraph (A) above.
(2) Notwithstanding subsection
26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the
potential liability of any Estoppel Default is less than $250,000, and Seller
indemnifies Purchaser from and against any and all claims, loss, liability,
damage, cost or expense, including reasonable attorneys' fees, that may arise
as a result of such Estoppel Default or (y) the potential liability of any
Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a
mutually acceptable resolution to such Estoppel Default, then, the rights and
obligations of the parties hereto shall not be affected thereby, this Contract
shall remain in full force and effect and Purchaser shall, at the Closing,
accept such Estoppel Certificate or Seller's Certificate, and the Space Lease
corresponding thereto, subject to such Estoppel Default without any reduction
of the Purchase Price. Subsequent to the Closing, Seller may deliver an
Estoppel Certificate confirming that the Estoppel Default no longer exists,
whereupon Seller shall be entirely released from any liability arising out of
the indemnity, if any, given pursuant to clause (x) above.
(viii) to the extent then in Seller's possession and
control, copies of plans and specifications relating to the Property.
(ix) a ▇▇▇▇ of sale without representation or warranty
for any personal property (including tradenames and warranties, if any) being
conveyed pursuant to this Contract;
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(x) the Assignment of Service Contracts existing on
the Closing Date executed by Seller, which assignment shall be in the form of
Exhibit 3 attached hereto; and
(xi) a title certification substantially in the form
of Exhibit 5 attached hereto.
(b) Purchaser shall (i) pay to Seller or as Seller may
direct, the Purchase Price as provided in Section 3 hereof and (ii) pay all
Mortgage Expenses. Escrowee shall deliver the Cash Deposit to Seller.
(c) Purchaser shall execute, acknowledge (where required)
and deliver to Seller:
(i) the Assignment of the Space Leases.
(ii) the Assignment of the Service Contracts.
(iii) the checks, returns and/or affidavits in
accordance with Section 22 hereof.
(d) Seller and Purchaser shall execute a notice to
each of the Space Tenants stating in substance that Purchaser has succeeded to
Seller's interest as landlord under the Space Leases.
27. FURTHER ASSURANCES. The parties each agree to do such
other and further acts and things, and to execute and deliver such instruments
and documents (not creating any obligations additional to those otherwise
imposed by this Contract), as either may reasonably request from time to time,
whether at or after the Closing, in furtherance of the purposes of this
Contract. The provisions of this Section 27 shall survive the Closing.
28. PURCHASER'S DUE DILIGENCE PERIOD.
(a) Purchaser shall have the right to cancel this
Contract on or before September 5, 1997 by notice to Seller and Escrowee of
such cancellation to be received by Seller on or before such date (the period
of time from the date hereof through and including September 5, 1997 is herein
referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels
this Contract in accordance with this subparagraph, this Contract shall be
deemed terminated and of no further force or effect and the Deposit shall be
promptly returned to Purchaser. If Purchaser does not duly cancel this
Contract in accordance with this subparagraph or if Purchaser waives its right
to cancel this Contract, (i) this Contract shall remain in full force and
effect and Purchaser shall have no further right to cancel this Contract under
this subparagraph and (ii) Purchaser shall be deemed to have waived any
liability of Seller and any right to refuse to consummate the Closing by reason
of a misrepresentation, Non-Permitted Title Objection or other condition known
to Purchaser as of the expiration of Purchaser's Due Diligence Period.
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24
(b) Time shall be of the essence with respect to the
dates in this Section for the expiration of Purchaser's Due Diligence Period
and the giving of Purchaser's cancellation notice.
(c) Notwithstanding anything to the contrary, if
Purchaser's environmental and engineering consultants have not inspected the
Property by August 8, 1997 Seller may elect to cancel this Contract in which
event the Deposit shall be promptly returned to Purchaser. In the event
Purchaser concludes based upon any of its due diligence investigations that it
is not prepared to proceed to Closing it will promptly so notify Seller and
cancel the Contract.
(d) Purchaser agrees to keep confidential as hereinafter
provided all information furnished to Purchaser by Seller concerning the
Premises, including, without limitation, Space Leases, Loan Documents, Service
Contracts or other contracts or agreements, various papers, documents, legal
instruments, studies, brochures, computer output, and other material, and any
discussions or visitations of the Premises (all of the aforementioned
information is collectively referred to as "Evaluation Material").
(e) All Evaluation Material shall not be used or
duplicated by Purchaser in any way detrimental to Seller, or for any purpose
other than evaluating a possible purchase of the Property by Purchaser.
Purchaser agrees to keep all Evaluation Material (other than information which
is a matter of public record or is provided in other sources readily available
to the public other than as a result of disclosure thereof by Purchaser or
Related Parties) strictly confidential; provided, however, that the Evaluation
Material may be disclosed to the directors, officers, and employees and
partners of Purchaser, and to Purchaser's attorneys and accounting firm, other
consultants, underwriters and financial institutions (all of whom are
collectively referred to as "Related Parties") who need to know such
information for the purpose of evaluating a possible purchase of the Premises.
These Related Parties shall be informed of the confidential nature of the
Evaluation Material and shall be directed to keep all such information in the
strictest confidence and use such information only for the purpose of
evaluating a possible purchase by Purchaser. Purchaser will promptly,
upon request of Seller, deliver to Seller all Evaluation Material furnished to
them by Seller, whether furnished before or after the date hereof, without
retaining copies thereof. Purchaser will direct Related Parties to whom
Evaluation Material is made available not to make similar disclosures and any
such disclosure shall be deemed made by and be the responsibility of Purchaser.
(f) Purchaser shall have the right to conduct
non-intrusive investigations of the Premises during the term of this Contract
(including a Phase I environmental investigation and a structural analysis).
Such investigations may be conducted by Purchaser or its designees, including,
but not limited to engineers, accountants, architects and Purchaser's employees
during normal business hours and upon reasonable advance notice to Seller
provided there is no disturbance to or interference with the business of any
Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and
against any claims, costs, damages, liabilities or expenses (including
reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage
or injury to persons or property caused by Purchaser's investigations.
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(g) Seller agrees to deliver to Purchaser true and
complete copies of all Space Leases (and any modifications thereof) in Seller's
possession.
(h) The provisions of Section 28(d), (e) and (f) shall
survive the termination of this Contract.
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.
(a) At the Closing, Seller and Purchaser shall each
deliver any and all appropriate partnership consents or certificates by the
secretary of each corporation (including any corporate general partner)
certifying as to the corporate resolution authorizing this transaction.
(b) Purchaser represents that: (i) it is, and will
at the Closing be, a limited partnership duly organized and validly existing
under the laws of Delaware and qualified to do business in the state in which
the Property is located; (ii) the execution, delivery and performance of this
Contract in accordance with its terms, do not violate the corporate charter,
by-laws or certificate of incorporation of Purchaser, or any contract,
agreement, commitment, order, judgment or decree to which Purchaser is a party
or by which it is bound; (iii) Purchaser has the right, power and authority to
make and perform its obligations under this Contract; (iv) this Contract is a
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms. Purchaser covenants and warrants that the
representations in the preceding sentences of this Section 29(b) will be true
on the Closing with respect to Purchaser or any permitted assignee of
Purchaser; (v) Purchaser will have the right, power and authority to make and
perform its obligations under this Contract without the need for governmental
approval, consent or filing and this Contract shall be a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms and (vi) Purchaser has the current financial ability to pay the Purchase
Price and otherwise perform its obligations under this Contract.
(c) Purchaser represents and warrants that: (i)
Purchaser is not an "employee benefit plan" as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is
subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute
"plan assets" of one or more plans within the meaning of 29 C.F.R. Section
2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject
to state statutes regulating investments of and fiduciary obligations with
respect to governmental plans; and (v) Purchaser is not a "party in interest"
to Seller within the meaning of ERISA. Purchaser covenants and warrants that
the representations in the preceding sentences of this Section 28(c) will be
true on the Closing.
30. MISCELLANEOUS.
(a) This Contract and the Schedules and Exhibits
annexed hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and except for any other documents
executed contemporaneously herewith all understandings and agreements
heretofore or simultaneously had between the parties hereto, including without
limitation, any letter of intent or initial escrow agreement, are merged into
and are superseded in their entirety by this Contract.
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26
(b) This Contract may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by
the party against which any waiver, change, modification or discharge is
sought.
(c) The captions or article titles contained in this
Contract and the Index, if any, are for convenience and reference only and
shall not be deemed a part of the text of this Contract.
(d) The terms "hereof," "herein," and "hereunder,"
and words of similar import, shall be construed to refer to this Contract as a
whole, and not to any particular article or provision, unless expressly so
stated.
(e) The Schedules and Exhibits annexed hereto are
hereby incorporated in and made part of this Contract.
(f) All words or terms used in this Contract,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
(g) This Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns, if any, but
nothing contained herein shall be deemed a waiver of the provisions of Section
21 hereof. None of the provisions of this Contract are intended to be, nor
shall they be construed to be, for the benefit of any third party.
(h) If a party is required to perform an act or give
a notice on a date that is a Saturday, Sunday or national holiday, the date
such performance or notice is due shall be deemed to be the next business day.
(i) This Contract is to be governed and construed in accordance with the
laws of the State of New York.
(j) The terms "affiliates" and "subsidiaries" shall
be given the same meaning as used in the broadest sense in any provision of the
rules and regulations governing federal taxation and securities.
(k) Neither Seller nor Purchaser may record this
Contract or a memorandum of this Contract. Purchaser hereby waives, to the
extent permitted by law, any right to file a lis pendens or other form of
attachment against the Properties in connection with this Contract or the
transactions contemplated hereby, other than a lis pendens or other such form
of attachment that may be filed by Purchaser contemporaneously with the
commencement by Purchaser of an action for a specific performance under Section
19 hereof. To the extent any such filing is made in violation of this
Contract, Purchaser shall indemnify Seller against any damages incurred by
Seller in connection therewith. In the event Purchaser shall be unsuccessful
in an action for a specific performance, it shall immediately cause any lis
pendens or other such form of attachment to be cancelled and removed from the
public record. The provisions of this section shall survive the termination of
this Contract.
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(l) The parties acknowledge that this transaction
contemplates only the sale and purchase of the Premises and that Seller is not
selling a business nor do the parties intend that Purchaser be deemed a
successor of Seller with respect to any liabilities of Seller to any third
parties other than as set forth in this Contract and the Permitted Exceptions.
Accordingly, except as set forth in this Contract, Purchaser shall neither
assume nor be liable for any of the debts, liabilities, taxes or obligations
of, or claims against, Seller, or of any other person or entity, of any kind or
nature, whether existing now, on the Closing Date or at any time thereafter.
The debts, liabilities, taxes, obligations and claims for which Seller alone is
liable shall include, without limitation, all payments, benefits, and
contribution obligations with respect to past and/or present employees of
Seller or its Affiliates in connection with the business of Seller or its
Affiliates (including, but not limited to, salaries, wages, commissions,
bonuses, vacation pay, health and welfare benefits or contributions [including
any group health continuation coverage obligation under COBRA], pension and/or
profit sharing contributions, severance or termination pay, or any other form
of compensation or employee benefit).
(m) Seller shall operate the Premises in a manner sub-
stantially consistent with its past practice.
[SPACE INTENTIONALLY LEFT BLANK]
24
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract the day and year first above written.
SELLER:
Fed ID No.: DRM THIRTY-THREE REALTY CORPORATION,an
Alabama corporation
▇▇-▇▇▇▇▇▇▇
By /s/ Authorized Signature
------------------------------------
Name:
Title:
PURCHASER:
Fed ID No.: RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
By: RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES
TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature
------------------------------------
Name:
Title:
As to Section 24:
ESCROWEE:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
BY /s/ Authorized Signature
--------------------------------
Name:
Title:
25
29
SCHEDULE A:
DESCRIPTION OF PROPERTY
1
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SCHEDULE B:
"SUBJECT TO" PROVISIONS
1. Any laws, regulations or ordinances presently in effect or which will
be in effect on the Closing (including, but not limited to, zoning,
building and environment protection) as to the use, occupancy,
subdivision or improvement of this Property adopted or imposed by any
governmental body or the effect of any noncompliance with or any
violation thereof.
2. The Space Leases and the rights of Space Tenants thereunder
pertaining to this Property listed on Schedule C attached to and
forming part of this Contract to which this Schedule is attached as
well as any permitted renewals or extensions thereof and any
permitted new leases created after the date of this Contract as same
may be affected by rent regulations or laws now or hereafter in
effect, and rulings, decisions or interpretations by any court,
agency or administrative body.
3. Real estate taxes, vault taxes and water and sewer charges not due
and payable (it being understood that the lien of real estate taxes
payable in arrears shall be a Permitted Exception).
4. State of facts shown on Survey dated , last revised
and Survey dated prepared by and such additional
state of facts an accurate survey of the Premises may show.
5. Maintenance and Service Contracts pertaining to this Premises set
forth on Schedule D to this Contract.
6. Violations of laws, regulations, ordinances, orders or requirements,
if any, noted in or issued by any governmental or quasi- governmental
department or authority having or asserting jurisdiction over the
Premises issued subsequent to the date hereof, and any conditions
constituting such violations, although not so noted or issued.
7. Rights of utility companies to lay, maintain, install, operate and
repair pipes, lines, poles, wires, cables, conduits, cable boxes,
distribution boxes and related equipment on, over and under the
Property.
8. Additional usual and customary exclusions and exceptions from
coverage obtaining in the standard form of insuring agreement
employed by the Title Company at the standard rates of such Title
Company.
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SCHEDULE C
RENT ROLL
1
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SCHEDULE D
ESCROWEE'S WIRE TRANSFER INSTRUCTIONS
The Chase Manhattan Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
A/C# 114-026610
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP Attorney Trust Account
ABA# 021-000021
Our Ref. C/M #18996-0102
1
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SCHEDULE E
EXISTING MORTGAGE
1
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SCHEDULE F
LIST OF TAX PROTESTS
None.
1
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EXHIBIT 1
FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE
ASSIGNMENT OF SPACE LEASE
KNOW ALL MEN that ________________________, a
___________________________ ("Assignor"), in consideration of Ten ($10.00)
Dollars and other good and valuable consideration, received from
, ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of
its right, title and interest in and to the leases, together with all security
deposits presently held by Assignor in connection therewith (collectively, the
"Leases") affecting the premises known as ________________________ more
particularly described on Schedule A annexed hereto.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of said Leases.
AND Assignee does hereby acknowledge receipt of said Leases
(including the security deposits) so delivered, and does hereby (a) accept the
within assignment, (b) assume the performance of all the terms, covenants and
conditions of the said Leases on the part of the lessor which are to be
performed or which arise from and after the date hereof, and (c) indemnify and
hold Assignor free and harmless from and against any and all costs, expenses,
claims, losses or damages, liabilities and judgments (including reasonable
attorneys' fees and disbursements) which Assignor may suffer in respect of any
claim arising out of any default on the part of Assignee to perform said terms,
covenants and conditions or the security deposits.
Except as may be expressly set forth in that certain Contract
of Sale between Assignor and Assignee dated _________, 1997, this assignment is
made without warranty or representation by the Assignor and without recourse to
the Assignor in any manner whatsoever.
This assignment and assumption agreement shall inure to the
benefit of Assignee and Assignor and their respective successors and assigns.
This assignment and assumption agreement may not be modified, altered or
amended, or its terms waived, except by an instrument if writing signed by the
parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
1
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IN WITNESS WHEREOF, Assignor and Assignee have only executed
this agreement this day of , 1997.
I.D. No.:
--------------------------------------,
a
-------------------------------------
By:
------------------------------
I.D. No.: INC., a
--------------------------
By:
------------------------------
[SCHEDULE A - PROPERTY DESCRIPTION]
2
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EXHIBIT 2
FORM OF SPACE TENANT ESTOPPEL CERTIFICATE
Tenant Estoppel Certificate
, 1997
TO:
RE: Lease with ___________ ("Landlord") for space in the __________
Shopping Center located in ___________, __________.
Gentlemen:
The undersigned, having the power and authority to do so, hereby
certifies and affirms the following:
1. The undersigned is occupying the space demised by the
above-referenced lease and the lease is in full force and effect.
2. Neither the undersigned nor, to the best of our knowledge, the
landlord is in default under the lease.
3. The lease is unmodified or, if there have been modifications, they
are referenced as follows:
__________________________________
__________________________________
4. The yearly amount of base rent payable by Tenant is $____________;
current charges for common area maintenance, insurance and taxes are
__________________ per month. Base rent has been paid through
____________ and additional rent for common area maintenance,
insurance premiums and taxes has been paid through ______________.
5. The Landlord is currently holding a security deposit in the amount of
$_____________.
6. The term under the lease commenced on _________________, and expires
on ____________________.
1
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This certification may be relied upon by the above addresses and
their successors and assigns and any purchaser or mortgagee of the shopping
center.
TENANT:
__________________________
BY: ____________________________
Its:______________________
Dated:_________________________
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EXHIBIT 3
FORM OF ASSIGNMENT OF SERVICE CONTRACTS
KNOW ALL MEN that ___________________________ ("Assignor"), in
consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable
consideration, received from ______________________________ ("Assignee"), does
hereby assign, transfer and deliver onto Assignee, all of its right, title and
interest in and to those certain service contracts relating to the operation or
maintenance of the premises known as ___________________________, which service
contracts are listed in Schedule A annexed hereto (the "Contracts").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained.
AND Assignee does hereby acknowledge receipt of the Contracts
so delivered, and does hereby (a) accept the within assignment and (b) assume
the performance of all the terms, covenants and conditions of the Contracts on
the Assignor's part to be performed thereunder from and after the date hereof.
This assignment is made without warranty or representation by
Assignor and without recourse to assignor in any manner whatsoever, express or
implied. This assignment and assumption agreement shall inure to the benefit
of Assignee and Assignor and their respective successors and assigns, and shall
be governed by the laws of the State of _____________. This assignment and
assumption agreement may not be modified, altered or amended, or its terms
waived, except by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
1
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IN WITNESS WHEREOF, Assignor and Assignee have executed this
agreement this _____ day of _______________ 1997.
ASSIGNOR:
___________________________________
By:________________________________
ASSIGNEE:
____________________________________
By:_________________________________
Name:
Title:
2
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EXHIBIT 4
FORM OF LETTER OF CREDIT
SEE ATTACHED
1
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EXHIBIT 5
FORM OF TITLE CERTIFICATION
The undersigned, hereby certifies:
THAT _________________________________________
________________________________, is the owner ("Owner") of certain premises
situated in the City/Village/Township of _______________________, County of
_________________, State of __________, described in Commitment No.
_________________________.
CHECK ONE
__________[] THAT during the period of 120 days immediately preceding the
date of this certification no improvements or alterations have been made to the
subject property by Owner and that no claims of laborers or materialmen remain
unpaid (or if unpaid will be paid in the ordinary course of business) and that
no material incorporated into the property is subject to a security interest
(other than in connection with the Existing Mortgage).
OR
[] THAT during the period of 120 days immediately preceding the
date of this certification certain work has been done and material furnished to
or by Owner in connection with _______________________________________________
(state the general nature of work) upon said premises in the approximate total
sum of $ _________ but that except as stated below all of said work and
materials have been fully paid for. That to the knowledge of the undersigned
said work was completed on ____________ and that no significant work remains to
be done and that no significant material remains to be furnished to complete
the work. Attached hereto is a list of all persons or companies which have
furnished any labor or material (having a value in excess of $50,000) from the
beginning of the construction, together with waivers in full form all of said
parties.
Work not completed or not paid for: __________________________________________.
THAT only the following parties are direct tenants of Owner under written
leases:
Owner agrees not to cause any lien or other encumbrance to be
filed against the premises on or after the date hereof.
THAT this certification is made for the purpose of inducing
Commonwealth Land Title Insurance Company to issue its title policy insuring
the above-described premises.
2
43
THAT Owner hereby indemnifies and agrees to save harmless
Commonwealth Land Title Insurance Company against any loss or expense,
including attorneys' fees, sustained because any statement herein is false or
inaccurate.
Dated this ____ day of _______, 1997.
By: _______________________
Its: ______________________
Subscribed and sworn to before me this
______ day of __________, 1997.
_________________________________
Notary Public
County of ______________________
State of _______________________
My commission expires: _________
3
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***
[ACKNOWLEDGMENTS]
***
EXHIBIT A
BENEFITTED PROPERTY
***
EXHIBIT B
BURDENED PROPERTY
4